The inquiries tend to lack the “real clear, bright lines” that are present in more traditional corporate investigations, said Shelline Bennett, a partner at Liebert Cassidy Whitmore.
More Americans are raising “psychological safety” concerns at work, forcing companies experienced with investigating more straightforward matters—whether an employee falsified entries on his expense report, for instance, or sexually harassed a colleague—into a realm rife with subjectivity and differing cultural expectations.
The spike stems partly from the rise of the neurodiversity movement, which asserts that differences in human brain development and functioning are natural and normal—rather than being symptomatic of disabilities or deficits. The movement’s growth has emboldened workers with such neurological variations as autism, ADHD, dyslexia or Tourette syndrome to speak up and request accommodations.
Employers and regulators long ago set clear boundaries for misconduct ranging from racial disparagement to sexual harassment. “But what happens when we now have individuals who are saying, ‘Don’t make me turn on my camera for this meeting because it’s invading my safe space,'” said Shelline Bennett, workplace investigator and partner at Liebert Cassidy Whitmore in San Diego.
“Last week, I had an employee saying, ‘You can’t have GPS on the company vehicle because my car is my safe space.'”
A supervisor hearing a concern of that nature might not perceive the matter as significant enough to report to a supervisor or to pass along to legal. If anything, a supervisor might have the knee-jerk reaction that the employee is being insubordinate.
But according to Bennett, an employer might want to drill deeper. She said being responsive from the outset could reduce the risk of the employee later bringing litigation.
That may simply entail having the supervisor sit down with the employee to ensure that person feels heard, or perhaps following up in some other way. “Maybe it’s a management issue, and we have a supervisor that needs some coaching on how they’re interacting,” Bennett said.
But doing nothing could be construed as part of a pattern of employer misconduct in future litigation by the employee.
It’s why some employers have ramped up the number of in-house investigators, or have hired outside counsel to look into claims of psychological safety or neurodivergence-related behaviors, Bennett said.
“It’s about minimizing risk, making sure we’re not getting sued and getting hit with multimillion-dollar verdicts.”
Cases involving an employee’s “head space,” if you will, fall along a couple of categories, with varying degrees of risk to employers.
One category of employees Bennett has identified are those who have cultural expectations different from workers of earlier generations.
Indeed, when Bennett started practicing in the employment space 30 years ago the triggers of and when to investigate were “real clear, bright lines,” such as employees who alleged they were treated differently because of race, gender or sexual orientation.
But each generation is shaped by a different set of traumatic moments. Many workers in their early 20s today, for instance, were especially shaken by the COVID-19 pandemic, which struck while they were in high school.
An employee in that age bracket “actually said this to me as I was investigating, ‘We’re a different generation. We were the first high school class that didn’t have a graduation. We went into college and all our classes were remote. We became isolated.'”
So when a boss suggests that employees go to a restaurant for a team meeting, an employee might say, “I can’t do that. It’s outside my comfort zone. And if you keep insisting I do that, I’m going to say it’s a hostile work environment,'” she added.
Because neurodivergence can qualify as a disability under the Americans with Disabilities Act, the legal risks from a misstep can be even more substantial.
As Ogletree Deakins shareholder Phillip Russell pointed out in a client note on neurodiversity: “If an employee has an ADA- qualified disability involving neurodivergence, it is illegal to discriminate or harass that employee because of the employee’s condition. It is also unlawful to retaliate against that employee for reporting an ADA violation”
The Equal Employment Opportunity Commission is seeing more neurodivergent individuals lodge discrimination complaints, and they’re finding a receptive ear, the agency’s tally of merit resolutions show. A merit resolution indicates a discrimination complaint was resolved in a way that deemed the complaint meritorious.
EEOC merit resolutions involving individuals with autism rose from 0.7% of all merit resolutions in 2020 to 1.60% in 2024.
Similarly, “other neurological impairments” jumped from 2.7% to 4% during the same period, according to EEOC records.
As employers ramp up inquiries, Bennett cautioned that they need to assess not only what occurred but how the conduct was experienced. “These cases are highly contextual, fact-intensive, and they raise real questions about when issues escalate into formal investigations and how those investigations are documented and defended.”
Some employers are trying to get out in front of the issue by formally recognizing psychological safety and incorporating it into their HR training programs.
New York City-based Traliant, which provides compliance training to some of the nation’s largest employers, recently added psychological safety to its broader education series on workplace inclusiveness.
Elissa Rossi, an attorney and vice president of compliance at Traliant, said the rise of remote work during the COVID-19 pandemic increased psychological safety concerns, in part because many people felt they were perpetually working.
The course provides ideas to help managers not trigger their employees, such as changing how and when the employer peppers workers with messages.
“Those things can help in terms of just the differences between people, including different ways of approaching work, ADHD, neurodivergence things, where (the employee) says, ‘I need to have my do-not-disturb sign on,'” said Rossi, a former assistant attorney general in the New York Attorney General’s Office.
Such training can also show good faith on an employer’s part, evidence that could be useful if a dispute escalates to a lawsuit.
“An employer can say, ‘Look, we’re on top of this. We’re trying to give employees the tools to let them know that they can always reach out to HR, to let them know they can speak to their manager. That can be helpful,” Rossi added.
Aside from mitigating legal risk, addressing psychological safety concerns can help employers get the most from their workers. Many employers value those with different outlooks or ways of processing information.
“It’s sort of a way to foster a better workplace where people feel more comfortable. They feel more free to trade ideas without fearing that people are going to make fun of their ideas or respond badly,” Rossi said.
Reproduced with permission. Published March 11, 2026. Copyright © 2026 Law.com.