HLD, v. 29, n. 6 (June 2001)
Ninth Circuit Extends Federal Psychotherapist-Patient
Privilege to Unlicensed EAP Counselors
Oksana Oleszko brought an action in federal court under Title
VII against her employer, State Compensation Insurance Fund ("SCIF"), and her
individual supervisors alleging sexual harassment, reverse race and national
origin discrimination, and retaliation. SCIF provides an Employee Assistance
Program ("EAP") that helps SCIF employees resolve personal issues. EAP
counselors provide comprehensive assessments and short-term counseling,
referrals to appropriate treatment, and follow-up services. No one on the EAP
staff was a licensed psychiatrist, psychologist, or social worker, but all had
a background in either psychology or social work. Oleszko sought discovery from
SCIF's EAP in an effort to demonstrate a pattern of sex and race discrimination
and retaliation on the part of SCIF. The EAP refused to produce the records or
to testify about the substance of communications with other employees on the
ground that the communications were privileged under Jaffee v. Redmond,
518 U.S. 1 (1996), see HLD, v. 24, n. 7, at p. 23. The
district court agreed with the EAP and denied Oleszko's motion to compel
discovery. Oleszko appealed.
The Ninth Circuit affirmed the decision of the district court.
The appeals court framed the issue as whether the federal psychotherapist-patient
privilege recognized in Jaffee extends to unlicensed counselors employed
by SCIF's EAP. The appeals court found that although no federal circuit court
had previously addressed this question, such an extension of the privilege was
supported by two district court opinions. See Greet v. Zagrocki, 1996 WL
724933 (E.D. Pa. 1996), HLD, v. 25, n. 2, at p. 25; United States v.
Lowe, 948 F. Supp. 97 (D. Mass. 1996), HLD, v. 25, n.
2, at p. 49. The appeals court noted that the reasons set forth by the U.S.
Supreme Court in Jaffee for extending the privilege to licensed clinical
social workers applied equally to EAP counselors. The appeals court found that
"EAPs, like social workers, play an important role in increasing access to
mental health treatment" and that EAP counselors "assist those who could not
otherwise afford psychotherapy by providing and/or helping to obtain financial
Next, the appeals court set forth its view that EAP counselors
were members of the "mental health team" and that protecting disclosures made
during psychotherapy to one member of the team while exposing the same
disclosures made to another member of the team would significantly undermine
the psychotherapist-patient privilege. The appeals court then noted that a
number of states had begun to recognize a privilege for unlicensed counselors.
The appeals court concluded its opinion by stating that:
[g]iven the importance of the public and private
interests EAPs serve, the necessity of confidentiality in order for EAPs to
function effectively, and the importance of protecting this gateway to mental
health treatment by licensed psychiatrists, psychologists, and social workers,
we hold that the psychotherapist-patient privilege recognized in Jaffee v.
extends to communications with EAP personnel.
Oleszko v. State Compensation
Ins. Fund, No. 99-15207, 2001 WL 274927 (9th Cir. Mar. 20, 2001) (9 pages).
Health Lawyers thanks Michael D.
Roth, of the Law Offices of Michael Dundon Roth, in Los Angeles, California,
for sending us a copy of this decision.