Legal Trends: Defuse Workplace Violence

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Judging from recent headlines, gun violence seems to be on the rise in the U.S.—just witness the recent rampage at the Washington, D.C., Navy Yard. Sometimes, violence occurs at the workplace or spills over from workplace disputes, as it did when a man gunned down his partner and three others at a home health care business in St. Louis last June.

Workplace violence is not new, however. Employees who are angry with their manager or company, who fear an imminent termination, or who are just unhappy in a job may resort to violence.

In many of these cases, the perpetrator sends signals of his or her violent tendencies well before they erupt—signals that, tragically, often are not given appropriate attention. In the St. Louis case, the shooter reportedly told colleagues, "I’m going to kill people and then myself."

If we learn anything from these tragedies, it is that we must take such threats seriously. What should HR professionals do to protect their company and its employees, while staying within the boundaries of the law, when someone behaves in a threatening manner?

Trust Your Instincts

Legally speaking, there is a lot you can do to make your workplace safer. Some steps are as simple as ramping up building security. What is not as simple is managing your people. How do you spot troubled employees before they explode or act out? What can and should you do once you spot them?

HR professionals often know of a potentially dangerous employee but—fearing litigation—are wary of taking action without hard evidence that the individual is dangerous or has behaved violently in the past.

That fear may be inflated. While HR needs to be aware of applicable laws, an employer that proceeds with caution can lawfully address employees who appear threatening or who make actual threats.

Indeed, on the flip side, an employer may incur legal risks by failing to act to keep a workplace safe. If the employer waits for a potentially dangerous employee to engage in misconduct, the result may be an act of workplace violence with dire consequences.

Your Hands Are Not Tied

"So, what can I do?" many HR executives wonder. "If an employee is simply acting strangely, but has not done anything violent or violated any company policies, can I suspend or fire him? Can I ask him to undergo a psychiatric exam?"

What if the employee reveals to HR that he suffers from a mental illness that must be accommodated as a disability? "Well, now I’m stuck," the employer may think. "I cannot fire him. Now I must accommodate his disability under the law."

What will surprise many HR professionals is that, even with the protections of state and federal disability law, there is a lot you can do. The key is to be careful and to make sure that the actions you take are measured, fair and based on facts rather than rumors.

Mental Illness

The federal Americans with Disabilities Act (ADA) and many state laws prohibit discrimination against employees based on actual or perceived disability. Mental illness is included within the definition of disability. It is, therefore, unlawful to fire someone solely because he or she has a mental illness. An employer also must reasonably accommodate employees with disabilities—including those who are mentally ill—to allow them to perform the essential functions of their job.

But the law does not excuse misconduct.

If an employee has violated an employer’s policies by, for example, threatening someone or committing violence, he or she can be fired, even if the misconduct was caused by a mental illness.

What about an employee who has not committed misconduct yet appears on the verge of doing so? When can, or should, an employer act?

The ADA generally does not allow medical exams during employment. However, an employer may conduct a fitness-for-duty exam if it has good reason to believe that an employee has a condition that may present a threat of harm to himself or others. The reason must be based on objective facts, not fear or conjecture.

The ADA also allows employers to take action if they can show that an employee poses a direct threat to others. Direct threat is defined as "a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation."

The threat must be based on "an individualized assessment of the [employee’s] present ability to safely perform the essential functions of the job." This needs to be based on a reasonable medical judgment or objective evidence.

Real Cases

So, how does all this apply in real-life situations? The following are examples of actual cases:

Actual threat.  An employee was laid off because of budget constraints but was reinstated after he filed a grievance. The employee then told a counselor that he was thinking of "blowing up" the supervisor who laid him off. The counselor notified the police, and the employee was fired and charged with reckless endangerment. The employee sued for race discrimination and retaliation.

Did the employee prevail? The 3rd U.S. Circuit Court of Appeals affirmed the summary dismissal of his complaint, finding that "the record clearly established that [the employee] was fired because he considered blowing up [the supervisor] with explosives in his possession" and that "no reasonable finder of fact could conclude otherwise." Baker v. Philadelphia, 2010 U.S. App. LEXIS 25663 (3d Cir. 2010).

Threatening behavior.  A technician with bipolar disorder put up a poster of Charles Manson in his cubicle with the word "Inspiration." He was seen at work frequenting websites that featured assault weapons and serial killers. He was reported to management and fired for creating a security risk.

Later, he asked that the termination be rescinded as an ADA accommodation, claiming that his behavior was caused by his bipolar disorder and should be exempt from disciplinary action. When his employer did not rescind the termination, the employee filed suit under the ADA and state disability law.

Did the employee prevail? The court found that the employer was not "required to excuse the past misconduct," even if it was caused by the employee’s bipolar disorder. It noted that the U.S. Equal Employment Opportunity Commission (EEOC) has stated that because reasonable accommodation "is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability." Calandriello v. Tenn. Processing Ctr. LLC, 2009 U.S. Dist. LEXIS 116613 (M.D. Tenn. 2009).

Limits on Medical Exams

So how can an employer tell if an employee is mentally fit for the job? One way is through a fitness-for-duty test, although conducting such tests should not be undertaken lightly. Even courts that have upheld them have cautioned that they must not be abused. The employer bears the burden of proving business necessity. It must have significant evidence that would cause a reasonable person to inquire as to whether the employee is still capable of performing his job.

It is not enough that the employee is "annoying." The employer must be able to show that the employee cannot perform some job-related functions.

Also, the examination must be done carefully and properly and must not go beyond what is necessary to determine the employee’s fitness for duty. In other words, the employer cannot require an accountant to climb a ladder or ask a secretary to run on a treadmill for two miles. The test can include only tasks that the employee must be capable of performing to do his or her job.

Steps to Take

There are steps employers can take to make the workplace safer, including auditing their processes, publishing good policies and ensuring that everyone is aware of the policies.

Audit your processes. Bring in an expert to look at your internal policies and security procedures. Do you have the appropriate guards at your exits? Are employees aware that they are not allowed to bring weapons into the workplace? Most important, do managers know what to do if they suspect an employee is prone to violence?

Publish good policies.  All employers should have an anti-violence policy. Is it time to dust yours off and make sure it is updated? Is the policy clear—meaning, can someone who reads at an eighth-grade level understand it? Does it cover threatening and bullying behavior? Is it clear that the policy applies to everyone, including senior management?

Make sure everyone is aware of the policies. Put them on the company intranet, and post them in lounges, the cafeteria and reception areas.

Use hiring screens. The ADA prohibits pre-employment psychological testing, and many states are considering laws that will limit use of credit and background checks. Keep those laws in mind, but be aware that there are many lawful means of identifying applicants who may have violent or other troubling tendencies. For example, a criminal background check may disclose a history of violent crime—although it is important to note that the EEOC has issued guidance discouraging use of criminal background checks except in specific circumstances.

It is also lawful under federal and most state laws to conduct prehire personality screening. This test must not be used to weed out those who are mentally ill, but to screen for employees who possess personality traits that are objectively defined and considered important for the job.

Enforce policies. The employer that "looks the other way" when a manager or employee engages in violent or threatening behavior walks a slippery slope. When even one such incident is tolerated, an argument may be made that the employer must also tolerate the next one. Employers should be vigilant and careful about reviewing every incident of violence that is reported. Investigate and make sure that appropriate disciplinary action is taken.

Train managers. Employers should provide managers with professional training on how to recognize and respond to employees who appear unstable. What should managers be looking for? What should they do, and whom can they call if they see disturbing behavior?

Resolve workplace conflicts.  If an employer is aware of a conflict among workers, it should be handled promptly and completely. The employer may decide to bring in professionals to meet with the workers or to send them for counseling. It also may opt to remove the workers involved from the same workplace or shift. Be forewarned: Ignoring the problem will not make it go away and may allow it to escalate.

Use safe interviewing practices. Put protocols in place for managers or HR who interview potentially dangerous employees. For example, require that there be two people present, that the door be left open, and that any objects that can be thrown or used as a weapon be removed from the area. Have a plan for a quick exit or a call to 911, if needed.

Act carefully but decisively. If an employee makes a real threat toward someone, he or she should be reported to the police and removed from the workplace. Likewise, once there is an actual act of violence, the employee or employees involved should be disciplined promptly.

Don’t ignore odd behavior. Discuss the behavior with the employee and see how he or she reacts. If appropriate, suggest that the employee take advantage of the company’s employee assistance program. If the employee agrees, wait to see if the employee’s behavior improves. If the employee refuses, it may be reasonable to consider such refusal as a sign of a deeper problem.

If the behavior reaches the point where the workplace is affected and the employer believes it can be proved that the employee may be a "direct threat," consider referring him for a fitness-for-duty exam with a psychiatrist. As explained above, because the law limits when such exams can be conducted, legal counsel should be consulted.

Balance All Interests

None of these situations is simple; the rights of one employee must be balanced against the rights of the others. An employer must not pander to mob mentality or succumb to prejudice and ignorance concerning mental illness.

However, the employer’s principal concern should be the safety of all employees.

Barbara Hoey, formerly with Littler, is chair of the Labor and Employment Practice at Kelley Drye in New York City.