A Federal Appeals Court’s recent precedential decision in the case of Gibbs v. City of Pittsburgh may have profound implications for New Jersey civil service appeals from psychological disqualification of law enforcement officer applicants.
Background
Christopher Gibbs applied to be a police officer with the Pittsburgh, Pennsylvania Police Department. He was an honorably discharged Marine and had been accepted for employment with five other law enforcement agencies. Similar to the practice in New Jersey and as required by Pennsylvania state law, after he was found otherwise qualified Pittsburgh offered Gibbs an offer of employment conditioned upon passing an examination to determine whether he was
Gibbs’s Lawsuit
Gibbs sued Pittsburgh in the United States District Court for the Western District of Pennsylvania. Gibbs argued that Pittsburgh, through the psychologists it had contracted with to perform the psychological examinations, discriminated against him because of his ADHD, a disability covered by the Americans With Disabilities Act (the “ADA”) and the Rehabilitation Act, both of which govern local law enforcement agencies in New Jersey. The judge in the District Court granted Pittsburgh’s motion to dismiss Gibb’s lawsuit. The judge reasoned that because passing the examination was a prerequisite to employment under state employment law, he could not be hired no mater how able he was to perform the job as a police officer. The judge stated that had Gibbs sued the psychologists he might have had a viable claim, but because he had not argued that the City had not been biased it could not be found liable.
Gibbs appealed to the United States Court of Appeals for the Third Circuit, which hears appeals of federal cases in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands. Its decisions are therefore binding on New Jersey employment law.
The Third Circuit’s Opinion
The Third Circuit reversed the dismissal and reinstated Gibbs’s lawsuit, ruling that he had stated a viable claim of disability discrimination by Pittsburgh, and that he was therefore entitled to his day in court to try to prove his claims.
In order to succeed on disability claims under the ADA and Rehabilitation Act, plaintiffs must prove three things, and at the preliminary stage in a motion to dismiss they must only viably allege them: That he was disabled, that he was qualified for the job, and that he suffered discrimination because of his disability. Whether Gibbs was disabled was not at issue.
However, the second factor, whether he was qualified, was at issue. The Third Circuit explained that the requirement of a psychological test is not in itself discriminatory. Being psychologically fit for a law enforcement position is inherently reasonable, given officers’ ability to arrest and use deadly force. However, psychological tests may not be applied in a discriminatory way. The Third Circuit ruled that Gibbs had sufficiently alleged discrimination to withstand a motion to dismiss.
Once the examiners learned that Gibbs had ADHD, they focused on his childhood behavior, ignoring the fact that once he was diagnosed and the ADHD brought under control, that he had thereafter succeeded in everything he had done, including unblemished records as a police officer and Marine. They did not examine whether the condition was currently under control, or that five other departments had found it to be so. Moreover, Gibbs alleged that other Pittsburgh police officers who misbehaved as children but did not have ADHD were allowed to serve.
Thus, the Third Circuit ruled that the key is whether he could do the job as police officer with the condition (his ADHD), rather than simply having the condition itself. Since the psychologists made their determination only on the basis of his having the condition, not how it currently affected his ability to perform the duties of a police officer, he was entitled to make his case to a jury that they had discriminated against him because of his ADHD.
Moreover, the Court ruled that Pittsburgh could not escape liability because the psychologists it used were contractors rather than employees. An employer is just as liable for the acts of its contractors as if its employees themselves discriminated.
The Takeaway
The main takeaway is that while psychological screening of candidates for law enforcement positions is a valid requirement, it cannot be applied in a discriminatory way.
We represent many New Jersey law enforcement officer applicants for state and local government positions in appealing psychological disqualification, and we have seen this play out in real time. The most frequent scenario we see is that after almost two decades of war many veterans have Post-Traumatic Stress Disorder (“PTSD”). Often, law enforcement candidates will be found disqualified merely for having PTSD, not for how it effects their ability to perform as law enforcement officers. On its face, this is discriminatory. The Gibbs decision gives another weapon on appeal to applicants for New Jersey law enforcement officer positions who have been psychologically disqualified because of ADHD, PTSD or another condition.
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