Employers confronting potential workplace violence must navigate a complex intersection of safety obligations, employee rights, and legal risk. This chapter outlines the principal legal frameworks governing employer responsibilities during threat assessment and incident management, including the Occupational Safety and Health Act’s General Duty Clause, state negligence standards, and liability theories related to hiring, retention, supervision, and failure to act on known risks. The discussion highlights recent trends in regulatory enforcement and civil litigation, emphasizing the growing expectation that employers proactively recognize and mitigate behavioral warning signs. The chapter also examines the implications of the Americans with Disabilities Act and parallel state statutes when mental disorders are suspected contributors to concerning behavior, clarifying how “direct threat” standards and reasonable accommodations interact with violence-risk evaluations. Practical considerations for organizations, threat assessment teams, and consulting clinicians are identified, underscoring the need to balance workplace protection with respect for privacy, nondiscrimination, and procedural fairness.
Excerpt from
Workplace Targeted Violence: Assessment and Management in Dynamic Contexts
By Stephen G. White
In The International Handbook of Threat Assessment, 2nd edition ( J.R. Meloy & J. Hoffman, eds.).
Copyright Oxford University Press, 2021. All rights reserved.
NOT FOR DISTRIBUTION OUTSIDE OF CLIENT ORGANIZATION
Pertinent Legal Issues1
Employers must respond to potential threats to the workforce in a manner that is both legal and ethical. A full discussion of the legal issues pertinent to workplace violence is beyond the scope of this chapter and the author’s expertise; however, a few remarks are in order (see Amman, Schouten & Solov, this volume, for additional discussion of legal issues relevant to violence prevention and the practice of threat assessment.)
During the incident management process, the employer must navigate and balance significant legal issues, responding so as to maintain a safe workplace while respecting the various rights of the employee of concern. According to the General Duty Clause of the federal Occupational Safety and Health Act of 1970, employers must maintain a workplace “free from recognizable hazards that are causing or likely to cause death or serious harm to employees” (Occupational Safety and Health Act, 1970). State laws impose similar requirements. Employers who do not properly manage and respond to workplace violence risk exposing themselves to a variety of possible legal claims, particularly those involving negligence, whether it is negligence in hiring, retention, or supervision. Employers have been held liable for failing to safely remove a potentially violent employee and, in certain circumstances, from failing to screen out a job applicant with a violent history or apparent violent proclivities (Lies & Powers, 2008; Speer, 2003). The increase in mass murders has led to more aggressive enforcement by federal and state regulators. In a recent example, an employer who provided in-home health care services was held liable for not responding to the expressed concerns of one of its social workers who had documented that a client of hers was making her anxious. The client eventually stabbed her to death (Lies, 2019). It is fair to say that this trend will continue – employers will increasingly be obligated to take notice of what is happening in the workplace, and take the steps to provide a safe working environment. The duty under OSHA hasn’t changed, but the workplace violence landscape has, and willfully ignoring that fact could figure into a finding of negligence (Amman, personal communication, September, 2019).
Additional legal theories focus on the employer’s mismanagement of the investigative or risk management process, where shortfalls in these practices can generate claims that include discrimination, wrongful termination, invasion of privacy, defamation, and violation of rights under applicable collective bargaining agreements.
The Americans with Disabilities Act (1970) and corresponding state laws add further complexity to the legal issues an employer must consider during the threat management process. This is also of special importance to mental health professionals retained by employers to evaluate violence risk when a suspected mental disorder may be a contributing factor. The ADA protects employees and job applicants from discrimination based on a known or perceived mental disability. Mental disorders covered by the ADA include, among others, depression, schizophrenia, bipolar disorder, posttraumatic stress disorder, and borderline personality disorder. Many state laws provide similar protections. A risk assessment by a qualified clinician at times will require an evaluation of whether an employee’s known or suspected mental disorder may have contributed to the problematic behavior that gave rise to the need for an assessment; and whether the symptoms and behaviors stemming from the disorder might contribute to a risk for potential future violence. In general, the ADA and corresponding state laws should not prevent an employer from conducting a risk assessment or from taking steps to protect the workplace from violence. As a general matter, the ADA and corresponding state laws do not require an organization to employ someone who poses a “direct threat” to the workplace, as legally defined, or who cannot meet standards of workplace behavior even with reasonable accommodations. Nonetheless, the existence or perception of a known or suspected mental disorder generates for the employer a need to carefully examine potentially complex legal requirements under the ADA and corresponding state laws, and it places a premium on proper communication between the evaluator and the organization’s employment law counsel and/or human resources staff. In particular, an appropriate strategy must be implemented for properly handling information about a known or suspected mental disorder during a threat assessment and subsequent discussions by the evaluator with the employer.
A professional evaluator, remaining mindful of these various legal exposures faced by the employer, may encounter a workplace context where varying degrees of disclosure or speculation about an individual’s real or presumed mental disorder otherwise exist. For instance, a delusional employee may have openly shared with coworkers that, “The Gods are telling me I am the one to rid the earth once and for all of evildoers!” As a further example, employees may report “a ‘paranoid’ coworker who thinks we are hacking his computer and poisoning his coffee.” Other individuals who raise concern may, when interviewed by a TAM team member, voluntarily respond with comments such as, “It’s because I’m bipolar.” A further possibility is the professional arriving at the opinion, through his or her own assessment, that a mental disorder (e.g., a major depression) is an important contributor to an employee’s angry outbursts that raised concern about violence risk.
In all of these scenarios the professional evaluator and the organization’s legal counsel should carefully confer about what is communicated by the evaluator in his or her feedback and reports, verbal or written, and to whom, thinking through as well what information should be kept privileged. In general, the employer’s designated representatives need to know, in straightforward language, the subject’s probable motives and explanations for his or her conduct of concern; the nature, severity, and time frame of possible risk; the likely targets; and what would escalate or ameliorate any risk. The evaluator’s assessment narratives and subsequent discussions do not need to include diagnostic information to address the employer’s risk management issues. At times it is indeed pertinent to reveal the relative treatability of a contributing mental disorder, whether or not it is specifically named by any party, in the interest of risk management decision making. Risk assessment professionals should understand that ultimately with ADA cases the employer needs to (1) weigh the legal requirements related to ADA and corresponding state laws, (2) decide what and how much the evaluator will communicate to the employer about a known or suspected mental disorder relevant to any risk issues, and (3) be especially careful in handling information confidentially during the threat management process.
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1. The author would like to acknowledge Rebecca Speer, Esq., for her assistance with the discussion of legal issues.