Workplace Violence: Employee Rights, Employer Recourse

, New York Law Journal

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An employer's quest to avoid workplace violence hardly seems controversial. Yet a variety of laws, administrative guidance and case law shape and constrain an employer's options.

"When it comes to safety," cautions the Equal Employment Opportunity Commission (EEOC), employers should be careful not to act on the basis of myths, fears, generalizations, or stereotypes."1 Objective evidence is the touchstone. Without over- or under-reacting, or running afoul of federal, state and local anti-discrimination laws that protect employees with a wide array of mental disabilities, employers should protect their employees. Some say that task is more easily said than done.

The importance of doing so is apparent. The Occupational Safety and Health Administration broadly defines the term "workplace violence" as "any act or threat of violence," which ranges from verbal abuse and bullying behavior to physical assaults and homicide. For over 15 years, workplace violence has remained one of the top four causes of death in the workplace. On average, approximately two million incidents of workplace violence are reported in the United States each year. This number is almost certainly higher, however, given that acts of workplace violence are likely underreported due to a lack of reporting policies, fear of reprisal, and the belief that reporting would be futile.2 In 2010, shootings accounted for approximately 78 percent of all workplace homicides (or 405 fatalities). Approximately 83 percent of these workplace shootings occurred in the private sector, while 17 percent occurred in the public sector.3

Risk Factors

There is a common misperception that individuals with mental illnesses are more likely to commit acts of workplace violence. In fact, even a significant mental disorder such as schizophrenia, bipolar disorder, or major depression does not in itself constitute a risk factor. Rather, a combination of factors—a history of violence, drug or alcohol abuse, and severe mental illness—are risk factors in the aggregate.4 Likewise, there is no one behavior that on its own reliably forecasts a greater potential for violence. Rather, certain behaviors, in combination, suggest the potential for violence. These behaviors include increasing belligerence, specific threats, hypersensitivity to criticism, recent acquisition or fascination with weapons, apparent obsession with a supervisor, coworker, or employee grievance, preoccupation with violence, interest in recently publicized violent events, outbursts of anger, extreme disorganization, noticeable changes in behavior, or homicidal and suicidal comments or threats.5

Rights and Obligations

Employers are obligated to safeguard against workplace violence, but not without regard to their employees' individual civil rights. On the one hand, §5(a)(1) of the Occupational Safety and Health Act of 1970, known as the General Duty Clause, requires employers to maintain a workplace that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees." Courts have interpreted this provision to mean that an employer has a legal duty to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees. Although there is no private cause of action under the General Duty Clause, an employer who willfully or repeatedly fails to comply with this obligation (i.e., by failing to reduce or eliminate serious recognized hazards) may be fined up to $70,000 for each violation and, if a willful violation causes the death of an employee, the employer can be punished with imprisonment.

On the other hand, federal anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), as well as state and city law counterparts such as the New York State and New York City Human Rights Laws, protect employees from discrimination and harassment on the basis of disability and other characteristics. The same laws also impose affirmative obligations on employers to provide reasonable accommodations to "otherwise qualified" individuals with disabilities (i.e., individuals who can perform the essential functions of their jobs, with or without reasonable accommodations), except when such accommodation would cause an undue hardship to the employer.

Employers confronted with a threatening employee who has a known or suspected disability, or suddenly claims to have one, must take reasonable steps to safeguard the workplace without running afoul of the anti-discrimination laws. Finding the right balance often is neither intuitive nor straightforward. A mandatory psychiatric examination, discipline, suspension, or termination, are among the options. When an employer has a reasonable basis to believe that the threat is imminent, however, contacting the local authorities is the first order of priority.

Victims of workplace violence may also seek to hold an employer liable based on negligent hiring, supervision, or retention claims. In some states, however, the exclusive remedy provisions of the Worker's Compensation laws may bar negligent hiring, supervision, and retention claims brought by an employee. The New York Workers' Compensation Law, ¶29(6), provides that "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee…when such employee is injured or killed by the negligence or wrong of another in the same employ[.]" Thus, in Ferris v. Delta Air Lines, 277 F.3d 128, 138 (2d Cir. 2001), the Second Circuit Court of Appeals affirmed dismissal of a flight attendant's negligent supervision and retention claims, arising from her alleged rape by a coworker, based on the exclusivity of New York's Workers' Compensation Law.

Many states have also passed laws that provide employees with protections from workplace violence and require certain employers to implement workplace violence prevention programs. New York requires public employers to perform a workplace evaluation or risk evaluation at the work site and to develop and implement programs to prevent and minimize workplace violence caused by assaults and homicides. California law allows an employer to seek a temporary restraining order and injunction on behalf of an employee who has suffered violence or a threat of violence in the workplace.6

Discipline or Accommodation?

Although the ADA and analogous state laws prohibit discrimination on the basis of disability, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence. The EEOC repeatedly has taken the position that the ADA does not protect disabled employees who act in a threatening or disconcerting manner from the consequences of violating workplace conduct rules even if that behavior stems from the underlying disability. The Second Circuit likewise held, in Sista v. CDC Ixis N. Am., 445 F.3d 161, 172 (2d Cir. 2006), that "this Court, like every other court to have taken up this issue, does not read the ADA to require that employers countenance dangerous misconduct, even if that misconduct is the result of a disability." The EEOC and courts agree, however, that consistency is important when enforcing workplace conduct rules.

When employees engage in threatening behavior and claim a disability there are, however, nuances in the approach taken by the EEOC and some courts. Consider an employee who engages in threatening conduct but does not claim it was caused by a disability. The employer may hold that individual to the same conduct rules that it applies to other employees. As to the employee who claims that his or her disability caused the misconduct, the employer may discipline the individual if the conduct rule is job-related and consistent with business necessity, and the employer holds other employees to the same standard. According to the EEOC, the same rules apply even if the employee requests an accommodation.7

Reasonable accommodation is always prospective and an employer is never required to excuse past misconduct as a reasonable accommodation. If an employee's threatening conduct is severe enough to warrant termination, the ADA does not require the employer to entertain the employee's request for an accommodation. If the employee is not terminated, however, and the employee claims to have a protected impairment under the ADA, the employer may be required to extend a reasonable accommodation to help the employee abide by workplace conduct rules in the future. In that situation, the employer may ask the employee about the disability and its bearing on the misconduct, and may request appropriate medical documentation. The request for medical documentation should be grounded on the need to determine whether the condition meets the ADA's definition of "disability," whether and to what extent the disability is affecting the employee's conduct, and what accommodations may address the problem.

Psychiatric Exam Option

Threats of violence may be overt and specific, but more often, they are vague or manifested through intimidating, troubling or bizarre conduct. An off-hand but threatening remark to coworkers may leave listeners no less concerned for their safety than an explicit threat. Each type of statement warrants prompt attention. Although vague but troubling comments or unusual conduct do not always violate workplace conduct rules, employers are not without options. A mandatory psychiatric examination of the employee, allowed under either the "fitness-for-duty" or "direct threat" analysis, may be appropriate.

An employer may pursue a mental examination of an employee (at its own expense) when doing so is job-related and consistent with business necessity. Courts often defer to employers' determinations that a mental health examination is necessary. According to the EEOC, a psychiatric examination is permissible if "the employer has a reasonable belief, based on objective evidence, that an employee is unable to perform an essential function or will pose a 'direct threat' because of a medical condition."8 The rationale for the mandatory examination must be based on objective evidence rather than assumptions or purely subjective concerns, and the analysis is always individualized. The scope of the psychiatric examination, according to the EEOC, should be limited to identifying whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.

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