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Employer Denied Psychosexual Exam of Worker, Must Pay Legal Fees

Oct. 5, 2022, 4:00 PM

An Idaho tax and accounting service provider crossed the line by seeking a “psychosexual examination” of a former employee suing for sexual harassment and must pay the attorneys’ fees she incurred in opposing the motion.

Hayes Management Services Inc. must also stop trying to obtain from Maria Carbajal information “regarding her private sexual behaviors and attitudes, or risk facing sanctions,” the US District Court for the District of Idaho said Tuesday. Information regarding any sexual contact Carbajal may have had with other individuals isn’t relevant to whether Hayes Management’s owner and president, Chris Hayes, sexually harassed Carbajal and whether she viewed his harassment as unwelcome, the court said.

No court has ever required a worker suing for sexual harassment under Title VII of the 1964 Civil Rights Act to sit for a psychosexual evaluation “to counter claims of unwelcomeness,” Judge B. Lynn Winmill said. A sexual harassment plaintiff hasn’t even been ordered to sit for a standard mental health examination under Rule 35 of the Federal Rules of Evidence in such situations, he said.

Rather, whether a worker alleging sexual harassment personally believed the harassment was unwelcome is determined by their conduct, the judge said. Hayes Management’s contention that it needed to perform a psychosexual exam on Carbajal because Title VII sexual harassment claims require proof of both objective and subjective offense “is completely inappropriate,” Winmill said.

Such exams are typically reserved for sexual offenders, to determine the likelihood that they might repeat their offenses, the court said. Hayes Management’s motion to compel Carbajal to sit for a psychosexual exam “borders on being abusive and harassing.” Because the motion wasn’t “substantially justified,” an award of attorneys’ fees to Carbajal, in an amount to be determined, is proper, the court said.

It noted that Hayes Management’s motion was the fifth time it raised the issue with Carbajal over nearly two years.

The motion was made in the wake of her request for terminating sanctions against the company and Chris Hayes after the court found that they engaged in discovery abuses by failing to adequately respond to Carbajal’s demand for information regarding the sale of all of Hayes Management’s assets to Hayes Tax and Accounting Services Inc. during the course of the litigation.

Hayes Tax is owned by Chris Hayes’ daughter, a longtime Hayes Management employee, the court said.

Casperson Ulrich Dustin PLLC represents Carbajal. John G. Simmons of Idaho Falls represents Hayes Management. Norman G. Reece Jr. of Pocatello, Idaho, represents Chris Hayes. Cozakos & Centeno PLLC represents Hayes Tax.

The case is Carbajal v. Hayes Mgmt. Servs., Inc., 2022 BL 355849, D. Idaho, No. 4:19-cv-00287, 10/4/22.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com