Thursday, December 17, 2009

My Potential for Violence: Why Was a Difficult Question so Easily Answered By Akin Gump?

"Employers are ill-qualified to assess employees’ mental states or predict employees’ potential future behaviors. Mental health professionals, those most qualified to predict potential future behaviors, often disagree significantly with other professional colleagues in the content of their predictions. In 1985, the United States Supreme Court stated that 'Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis . . . and on likelihood of future dangerousness.' And in 2008 the California Supreme Court held that ''[M]ental health professionals do not necessarily agree on what constitutes mental illness.'' If mental health professionals have so much difficulty diagnosing mental conditions, how can employers be qualified to make legally binding predictions as to their employees’ future actions? Not only are employers grossly under-qualified to predict employees’ behaviors, the duty required of employers under Section 311 [of the Restatement of Torts] is unreasonable. To decide whether an employer has a Section 311 duty to disclose certain information, the employer must first assess the employee’s prior acts and then determine whether there is anything in those actions that would indicate a likelihood of future violence. However this would be difficult for even licensed professionals."

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