McGhee v. Pathmark Stores, Inc., No. ATL-L-2459-08 (Law Div., August 23, 2010) – A New Jersey trial court has ruled that the plaintiffs in an LAD case seeking emotional distress damages cannot be forced to undergo psychological examinations. The defendant sought to have the plaintiffs examined to rebut their claims of anxiety and high blood pressure resulting from alleged racial harassment. Atlantic County Superior Court Judge Joseph Kane held that the LAD has been liberally construed to create an expansive remedy, and that emotional distress is a “recognized byproduct of discrimination” under the statute. The judge therefore found that the plaintiffs did not put their mental state “at issue” when they alleged pain and suffering as a component of damages. As this decision comes from a trial level court, it is not binding on any other courts.

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