Michael R. Lied

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Psychological Counseling May Be a Medical Examination Under the ADA (Monday, October 15, 2012)

Emily Kroll ("Kroll") began working for White Lake Ambulance Authority ("WLAA") as an Emergency Medical Technician. Her direct supervisor was Brian Binns.

After Kroll became romantically involved with one of her co-workers at WLAA, Binns and the office manager, Jean Dresen, received reports of concerns from WLAA employees about Kroll's emotional well being. Dresen requested that Kroll receive psychological counseling.

Kroll filed a sex-discrimination complaint with the Michigan Department of Civil Rights and filed another complaint with the EEOC, alleging ADA violations.

Kroll later filed a complaint in federal district court against WLAA alleging violations of the ADA and Title VII. Kroll contended that WLAA's demand that Kroll attend counseling was in violation of 42 U.S.C. § 12112(d)(4) of the ADA (Count I), that WLAA improperly fired Kroll in retaliation for her refusal to attend counseling (Count II), and that WLAA discriminated against Kroll on the basis of sex by requiring that she attend counseling (Count III).

WLAA moved for summary judgment. Kroll did not oppose summary judgment on Counts II and III.

The district court granted WLAA's motion for summary judgment on Count I, concluding that counseling alone does not constitute a medical examination under the ADA and that, therefore, WLAA's requirement that Kroll attend counseling as a condition of continued employment was not governed by 42 U.S.C. § 12112(d)(4). Kroll appealed.

The question presented was whether the counseling that Kroll was instructed to attend constitutes a "medical examination" under 42 U.S.C. § 12112(d)(4)(A).

Because the ADA's legislative history provides little insight into the intended meaning or scope of the term "medical examination," the appeals court determined that the best interpretive aid was the Enforcement Guidance that the EEOC published to explain and clarify the terms of § 12112(d)(4).

The EEOC defines "medical examination" as a procedure or test that seeks information about an individual's physical or mental impairments or health.

The EEOC provides a seven-factor test for analyzing whether a test or procedure qualifies as a "medical examination" and notes that meeting one factor may be enough to determine that a test or procedure is a medical examination:

  1. whether the test is administered by a health care professional;
  2. whether the test is interpreted by a health care professional;
  3. whether the test is designed to reveal an impairment or physical or mental health;
  4. whether the test is invasive;
  5. whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
  6. whether the test normally is given in a medical setting; and,
  7. whether medical equipment is used.

The guidance explains that "psychological tests that are designed to identify a mental disorder or impairment" are "medical examinations," while "psychological tests that measure personality traits such as honesty, preferences, and habits" are not.

An employer's intent is not dispositive as to whether something qualifies as a "medical examination". Instead, the purpose must be considered in the context of a particular test or assessment's typical uses and purposes.

Kroll alleged that WLAA required her to receive psychological counseling and see a mental health counselor as a condition to keeping her employment. Kroll pointed to testimony from Binns in which he agreed that it would be fair to say that WLAA requested that Kroll see a psychologist to discuss issues related to her mental health. WLAA however, contended that it did not specify that the counseling be "psychological" in nature.

The court considered the evidence presented by Kroll and the EEOC's seven-factor test to determine whether a reasonable jury could conclude that the "psychological counseling" Kroll was instructed to attend constitutes a "medical examination" under § 12112(d)(4)(A).

Factor three was arguably the most critical in this analysis: whether the "psychological counseling" was designed to reveal a mental-health impairment.

Based on Kroll's evidence, a jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect. WLAA did not dispute that it was concerned about Kroll's depression, to the point of suicidal ideation, and Binns stated in his deposition that he instructed Kroll to go to the counseling to discuss issues related to her mental health.

These facts were sufficient for a reasonable jury to conclude that WLAA intended for Kroll to attend counseling to explore her possible depression or similar mental-health impairment, so that she could receive the appropriate treatment. This uncovering of mental-health defects at an employer's direction was the precise harm that § 12112(d)(4)(A) is designed to prevent absent a demonstrated job-related business necessity.

The court of appeals recognized that even if Kroll's instruction to undergo psychological counseling was governed by § 12112(d)(4) of the ADA, WLAA might still be entitled to summary judgment if such counseling was job related and consistent with business necessity. The district court did not decide this question in the first instance, and the parties did not brief it on appeal.

Therefore, the court of appeals vacated the judgment of the district court granting summary judgment in favor of WLAA and remanded for further proceedings.

Emily Kroll v White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012).


· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com

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