Safe Harbor

Complications

Clearly, you want to do whatever you can to avoid being the next company decimated by a deranged employee. But some of the preventive steps you might consider bump into another set of laws: those designed to protect the rights of job applicants and employees. These are:

The Americans With Disabilities Act (ADA): Tom Harrison, publisher of Lawyers Weekly USA, notes that employers might be tempted to screen out mentally unstable job applicants by asking whether they have histories of mental illness or drug abuse. That would violate the ADA, which prohibits discrimination against people with physical or mental disabilities, real or perceived. "You can ask if they have a history of violence, but not if the question is likely to yield information about mental illness," Harrison says. "So you have to tread carefully."

Defamation: You can check with prior employers, but if they terminated the employee, they might be hesitant to tell you why out of fear of a lawsuit over defamation. "In my expe-rience," Brossman says, "if a former employee was violent, the employer may not say so directly, but you can tell from the conversation." It helps if the person asking for the reference has been trained in how to listen for the unspoken message. "We recommend neutral references, but if someone is violent, you make an exception," he says. "If I don't tell what I know, I can be held liable for failure to warn."

ADA again: If you have an employee whose personality changes and you're worried about mental instability, you might refer the employee to counseling through an employee assistance program. But be careful how you do it. Kathleen Keogh, an attorney with Calfee, Halter & Griswold LLP in Cleveland, notes that employers who require counseling as a condition for continued employment may get into legal trouble if they do so on the basis of a "perceived disability," which is protected under the ADA. In the case of threats or angry outbursts, though, it's the conduct itself that triggers the referral. "The reason is not a perceived disability but failure to relate in the workplace on a professional level," Keogh says.

But don't let fear of lawsuits smother common sense. "When in doubt, it's a lot better to have an ADA suit on your hands than a dead employee," Harrison says. "Better to make decisions to protect employees than to avoid litigation."

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This article was originally published in the April 2001 print edition of Entrepreneur with the headline: Safe Harbor.

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