Whistleblower Law Blog
Psychotherapist-Patient Privilege Shields ADA Plaintiff’s Mental Health Records
In an ADA and FMLA action, a former-Baker & McKenzie LLP associate succeeded in shielding his records of mental health treatment. Judge Jeffrey Cole held that where a discrimination plaintiff seeks damages for “garden variety” emotional distress and has not put his mental state at issue, i.e., by seeking damages for “severe” emotional distress or claiming a mental disability, records of mental health treatment are shielded by the psychotherapist-patient privilege. This decision will be helpful for whistleblowers when combating an aggressive defense counsel using a mental examination to harass or intimidate the whistleblower or to buttress the employer’s portrayal of the whistleblower as off balance.