Judge Upholds Plaintiffs' Right to Protect Medical Records

What started out as a racial discrimination lawsuit turned into a battle between plaintiffs seeking to protect the privacy of their medical and psychological records and defendants asserting their discovery rights.

The EEOC sought to protect the records of Giles Jefferson and other black employees of Rockford, Ill.-based Area Erectors Inc. after the agency filed a racial discrimination suit on their behalf in September 2006.

Area Erectors, a steel erection services company, filed a motion for discovery requesting the plaintiffs' medical and psychological records from the past five years as well as any arrest or litigation records involving the plaintiffs.

In a Nov. 27, 2007, ruling in EEOC v. Area Erectors Inc., Magistrate Judge P. Michael Mahoney held that the plaintiffs did not open the door to Area Erectors' discovering their medical and psychological records simply by claiming emotional-distress damages. He also said the plaintiffs did not need to produce their arrest records unless "a claimant may have been arrested for a work-related violation." He limited discovery of litigation records to personal injury claims.

"This is somewhat of a harsh ruling for an employer," says Barbara Hoey, a partner at Kelley Drye & Warren. "Generally if you are claiming those types of damages, you are opening the door to allow the defendant to explore your history."

Emotional Distress
The EEOC claim against Area Erectors is the second race discrimination case the agency has filed on Jefferson's behalf. In March of 2004, the EEOC successfully pursued a claim that another building contractor discriminated against him. The agency claims that when Jefferson went to the Area Erectors' job site three months later, a foreman told him that filing charges of discrimination was a "no-no." Later that day he was terminated and subsequently replaced by a white worker, according to the EEOC claim. The agency later analyzed the company's employment records and concluded that Area Erectors discriminated against African-Americans as a class.

Area Erectors denied any discrimination took place and in discovery requested all medical and psychological records of plaintiffs going back five years. The company said it needed these records to explore the basis for any emotional distress claims and to determine whether some factor in the plaintiffs' life unrelated to their termination had caused them to suffer emotional distress.

On Sept. 28, 2007, the EEOC filed a motion for a protective order stating such discovery was an invasion of privacy and a breach of the doctor-patient privilege. The EEOC tried to limit the amount of medical documentation it turned over to only records of medical treatment related to distress suffered after the termination. Area Erectors argued that was not fair because the symptoms being claimed by the plaintiffs could have been pre-existing.

The court held the claimants had to produce medical and psychological records only if the EEOC planned to present evidence they experienced medical or psychological symptoms or conditions or sought medical or psychological treatment because of discrimination at Area Erectors. The EEOC did not have to produce medical and psychological records for claimants who experienced "garden-variety" emotional distress because of the discrimination, such as feeling angry, frustrated or humiliated, the judge said. The judge also rejected the defendant's request for all arrest, conviction and incarceration records for each plaintiff, saying such records were not relevant unless the criminal history involved a work-related offense.

Area also sought information on all litigation in which each plaintiff had been involved in the past five years. The EEOC wanted to produce only information relating to civil rights violations, stating that all other litigation history was an invasion of privacy. Mahoney ruled that personal injury litigation could lead to discoverable evidence and ordered the EEOC to produce those records in addition to civil litigation records. However, he said no other type of litigation history would have to be produced.

"This is one of those genuinely important court decisions which, unfortunately, sometimes disappear without ever making it onto the radar screen," John Hendrickson, the EEOC's regional attorney in Chicago, said in a statement. "That sure shouldn't happen here because Judge Mahoney has so forcefully rejected the employer's attempt to use discovery to put the lives of victims of employment discrimination under the microscope."

Wide Net
Garen Dodge, a partner at Wiley Rein, says plaintiffs in employment discrimination cases often cast a big net, especially in cases involving the EEOC. Specifically, they ask for all litigation regarding discrimination and the number of EEOC charges for the past five years.

"This ruling really gives employers the ammunition to say, 'We're not going back five years, and we're not giving you EEOC charges because a mere filing doesn't mean there was actually discrimination.' This gives employers the ability to limit what they turn over when the plaintiffs are overreaching," Dodge says.

Brian LaFratta, an associate at the Chicago office of Fisher & Phillips, adds that despite this ruling, defendants in similar cases should aggressively pursue release of the plaintiffs' psychological records. "The reason is if they do have some history of a psychological illness, you can explore that and use it to limit their damages," LaFratta says.

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