Mental Examinations in Employment Cases: When Employers Can Get One

Emotional distress damages are often the largest number in a California employment complaint, and the employer’s best tool for testing them is a mental examination by its own expert. California requires a court order first. Under Code of Civil Procedure section 2032.320, the court “shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” Whether the employer gets one depends on what kind of distress the employee claims.

When can an employer ask for a mental examination?

When the employee has put their own mental condition in controversy.

Section 2032.020 allows an examination of a party “in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” The leading case is Vinson v. Superior Court (1987) 43 Cal.3d 833, a sexual harassment suit in which the plaintiff claimed continuing emotional injury. The Supreme Court of California held that “a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”

The court drew a line employers need to know, though. “A simple sexual harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal would not normally create a controversy regarding the plaintiff’s mental state.” In practice, the request for an examination is strongest when the employee alleges an ongoing condition, a diagnosis, treatment, or plans to call a mental health expert. A complaint that asks for generic distress damages and nothing more is a harder case.

What does the motion have to show?

Specific facts, not a hunch.

Unlike a deposition, a mental examination always takes a court order. Section 2032.310 says a party seeking one “shall obtain leave of court,” and the motion “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” It also needs a meet and confer declaration.

Good cause means a reason grounded in the case. Vinson explained that while a plaintiff can place mental state in controversy with a general allegation of severe distress, “the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” The strongest motions point to the employee’s own deposition testimony about symptoms and to treatment records produced in discovery. A designated plaintiff’s expert makes the case for an examination even stronger, because the employer needs a way to test that expert’s conclusions.

The examiner has to be qualified. Under section 2032.020(c)(1), a mental examination “shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.”

What limits will the court put on the examination?

Scope limits, and usually a recording.

The order “shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination,” according to section 2032.320(d). Expect the employee’s lawyer to fight over each listed test and the length of the session. Section 2032.530 gives both the examiner and examinee “the right to record a mental examination by audio technology.”

Sexual history is off limits without a separate, stronger showing. In Vinson, the court held the plaintiff had not, “merely by initiating this suit for sexual harassment and emotional distress, implicitly waived her right to privacy in respect to her sexual history and practices.” The Legislature has since codified a related rule for discovery generally. Section 2017.220 requires a party seeking discovery of the plaintiff’s sexual conduct with people other than the alleged perpetrator in a sexual harassment case to “establish specific facts showing that there is good cause for that discovery,” by noticed motion. The court “shall impose a monetary sanction” on a party who makes or opposes that motion unsuccessfully, absent substantial justification. An examiner who wanders into that territory without a court order exposes the employer to sanctions and hands the plaintiff a jury theme.

Is the examination worth asking for?

When the emotional distress claim is driving the case value, usually yes.

Without an examination, the jury hears about the employee’s mental health only from the employee’s side, often including a treating therapist. The defense expert’s examination gives the jury another explanation for the employee’s condition, including stressors outside work or a condition that predates the job. Vinson recognized that by tying distress to the defendant’s conduct, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.”

The examination isn’t free of risk. A hostile or careless examiner can become the plaintiff’s best witness, and an aggressive motion can prompt the employee to narrow the claim to generic distress, which may be the better outcome for the employer anyway. Timing matters too. The motion works best after the employee’s deposition, when the employer knows what symptoms are claimed and what treatment exists. That deposition should cover the symptoms in detail: when they started, who the employee told, which providers the employee saw, and what else was going on in the employee’s life at the time. Vague answers there make a vague motion later. For the other half of the damages picture, see the firm’s post on mitigation of damages in a wrongful termination case.

Steps to take when an employee claims severe emotional distress

1. Keep the litigation hold in place on the personnel file, any leave and accommodation records, emails and texts with the employee, and employee assistance program referrals the company knows about.
2. Calendar the discovery and expert designation deadlines, and confirm whether the employment practices liability (EPLI) carrier has approved a defense expert.
3. Identify the employee’s treating providers and the witnesses who saw the employee during and after the events alleged, and make sure no one takes action against a current employee-plaintiff that could look like retaliation.
4. Pull the documents the distress claim depends on, including medical leave requests, the employee’s own written complaints, and the timeline of the events the complaint describes.
5. Talk to a lawyer before contacting any treating provider, asking the employee about their health, or moving for an examination.

The examination motion is a damages tool, and it works best when the employer plans for it early. Employment litigation defense for California companies usually builds the record for it in the employee’s deposition, months before the motion is filed.

FAQ

Does every employee who claims emotional distress have to undergo an examination?

No. The Supreme Court of California held in Vinson v. Superior Court that a simple harassment or termination claim seeking compensation for an oppressive environment or lost wages wouldn’t normally put mental state in controversy. An examination becomes available when the employee alleges continuing mental injury or a diagnosis, and even then the employer needs a court order based on good cause.

Can the employee’s lawyer attend the mental examination?

Usually not. Vinson concluded that the plaintiff’s counsel should not be present at the examination, and Code of Civil Procedure section 2032.530 preserves existing case law on attorney presence. The same section gives both the examiner and the examinee the right to audio-record the session, which is the more common safeguard today.

Can the examiner ask about the employee’s sexual history?

Not without a separate, stronger showing. Vinson held that a sexual harassment plaintiff doesn’t waive privacy in sexual history just by filing suit, and Code of Civil Procedure section 2017.220 requires a noticed motion with specific facts before discovery into the plaintiff’s sexual conduct with others. The court must sanction a party who makes or opposes that motion unsuccessfully unless the court finds the position was justified.

Who pays for the examination?

The employer pays its own examiner. If the examination will take place more than 75 miles from where the employee lives, Code of Civil Procedure section 2032.320(e) conditions the order on the employer advancing the employee’s reasonable travel expenses, and the court must find good cause for the travel.

If your company faces an emotional distress claim

If your company has been sued by an employee claiming severe emotional distress, the medical record and the timing of an examination motion usually shape the damages fight. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving harassment and emotional distress damages. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statutes are Code of Civil Procedure sections 2017.220, 2032.020, 2032.310, 2032.320, and 2032.530. The decision is Vinson v. Superior Court (1987) 43 Cal.3d 833.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.