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Is the threat of an involuntary mental health exam a potent new tool in employment litigation? It has been for Thomas O’Connor, a teacher at Wethersfield High School in Connecticut who is fighting what he contends is an invasion of his privacy and unconstitutional abuse by the school authority. And plaintiffs’ lawyers report that the fitness-for-duty exam, originally justified for police and airline pilots facing life-or-death scenarios, is emerging as a tool in workplace litigation. In O’Connor’s case, he allegedly shouted at students in an abusive manner and was derelict in his duties. School authorities demanded that he submit to a mental health exam from Hank Schwartz, a psychiatrist picked by the school. In January 2000, O’Connor realized the doctor wanted records going back to the alcohol treatment facility he attended 12 years earlier and had planned on sharing his findings with the school superintendent. O’Connor got legal advice and filed for a federal injunction to prevent the exam. O’Connor also declined to sign a broad medical records release requested by the school. In response, it suspended him without pay. For his part, the teacher wants limits on the school’s inquest. An Aug. 24 legal memo filed by O’Connor’s West Hartford, Conn., lawyer Leon Rosenblatt, declared, “This is a case brought by a brave, determined teacher who is willing to stand up to an overbearing bureaucracy which is suspicious of the human spirit and downright hostile to the constitutional right of privacy.” In a footnote Rosenblatt writes he’s read the file and that “it can be stated categorically this case is not about hiding information from the defendants.” Instead, O’Connor’s objection is based on constitutional protection from arbitrary governmental action and his privacy rights in confidential medical records. The release he was asked to sign covered all information concerning his physical, psychiatric and psychological history, without limit, or restriction on how the recipients would store or use the information, O’Connor stated in the memo. In addition, federal medical records law would prevent any hospital that receives federal funding from complying with such a release, O’Connor contended. NOT PHYSICAL School board lawyer Michael Rose, of Hartford, Conn.’s Howd & Ludorf, contended in a Sept. 17 brief that O’Connor’s case fell below the normal type of substantive due process violation which would shock the conscience of a court. The “fountainhead” case, Rochin v. California, is a U.S. Supreme Court decision that found that the forced stomach pumping of a suspect violated substantive due process. So was the 1992 case of Harrington v. Almy, in which a police officer’s rights were violated when he was involuntarily hooked up to an instrument which measured his penis while viewing explicit pictures of nude children. Those are much different cases, the school argued, because O’Connor was not subject to such “bodily integrity” issues. O’Connor compared his objection of Schwartz’s examination to the 1983 2nd Circuit case of Garguil v. Tompkins in which a female teacher had objected to being examined by a male doctor. She was allowed to have a female doctor after the court found the school’s action unconstitutionally arbitrary. O’Connor’s memo, written by Rosenblatt, didn’t reveal any of his client’s confidential disclosures in the 151-page file from the treatment facility that O’Connor attended in 1988. It did show why an employee would prefer confidentiality. A personal history worksheet details probing questions in family, legal and “psychosexual” background. Among hundreds of questions are, “How did you learn about sex? Explain.” Also: “At what age did you begin masturbation?” The form probes relationships with parents, spouses, debt and income questions and asks about a spouse’s drug or alcohol problems. Rosenblatt, in a March 29 conference with Rose and U.S. District Judge Robert N. Chatigny, said the inquest was more like a fishing expedition. Because of federal regulations limiting medical records disclosure, Chatigny stated, “I don’t think it is appropriate for an employer to demand that an employee produce records that the employer may have no right to under the law, on the pain of having his pay cut off if he doesn’t comply.” He has not yet ruled on the school board’s motion for summary judgment. At a Sept. 28 conference, the parties agreed on a new examining psychiatrist, one who Chatigny noted is “very sensitive, from what I can tell, to peoples’ privacy.” Two Connecticut employment lawyers contacted for this story said they have clients who have been asked to take fitness-for-duty exams by school officials, but are not authorized to discuss the cases, partly because the request, in itself, is embarrassing. William R. Amlong, a Fort Lauderdale, Fla., employment lawyer, said that in his experience, fitness-for-duty exams have been justified for police or pilots, where employers could “point to a likelihood that someone who is mentally imbalanced” could commit a violent act to make a point. Grounds for such tests must be more serious than harboring the view “that women should be treated the same as men.” In police departments, fitness-for-duty exams create a license for employers to go “hunting,” he said, and provide “a way of embarrassing any dissidents.”

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