When Norman Bates and Baby Jane act out at work

HR Magazine, Feb, 1996 by Jonathan A. Segal

Workplace violence is severe and pervasive. More than 1,000 homicides and 1 million physical assaults Occur at work each year. Under these circumstances, it is clear that employers have more than a right to attempt to prevent workplace violence - they have a responsibility.

If an employer fails to prevent "preventable violence," legal liability is all but certain. But responding to actual, threatened or perceived cases of violence is not without legal risk. The accused have rights, too. This article provides supervisors practical advice on how to handle workplace violence.

POTENTIAL LIABILITY

If an employer fails to avert preventable violence, at least three claims are viable.

First, there may be liability under the Occupational Safety and Health Act. The Occupational Safety and Health Administration has interpreted its general-duty clause to require that employers protect employees from foreseeable violence.

Second, injured employees create workers' compensation liability - and higher insurance premiums.

Third, the employer can be held liable under negligent retention and/or respondeat superior theories of liability if the injured party is a nonemployee. These theories also may apply, even if the injured party is an employee, under the intentional-harm exception of workers' compensation laws.

However, an accused person could bring at least three viable claims.

The first is for discrimination on account of perceived disability. There is a strong overlap between violent behavior and mental illness in terms of both perpetrators and perceptions.

Second, there is the potential for defamation if an employee is falsely accused of violent behavior. This could be by spoken word or by innuendo (e.g., the way the employee is removed from the workplace).

Third, race and sex discrimination considerations may come into play. Men in general and men of color, in particular, are much more likely to be perceived as violent.

With these sometimes-conflicting legal considerations, let's examine some hypothetical situations.

HYPOTHETICAL NO. 1

A group of employees asks to speak with you. They tell you they are afraid to work with their manager. They have seen him cut himself with a penknife during the day. The cuts are sufficiently deep to result in profuse bleeding. He also has said, "The world is too much for me and I need to find an immediate solution."

Based on what the employees have told you, what do you do? Is the employee a danger to himself or co-workers?

Most of us are not mental health professionals and are not qualified to answer that question. This circumstance raises one of the most important issues in violence prevention-reliance on mental health experts. In determining whether someone poses a risk of harm to others in the workplace, employers should not rely on their subjective impressions. Instead, they should seek objective advice from independent mental health professionals.

In this case, should the employer remove the employee from the workplace so that a mental health professional can examine him? Not so fast.

The act of removal itself can give rise to liability. Therefore, before removing an employee from the workplace, a mental health professional should be consulted to determine whether the facts justify removal. In other words, check with mental health professionals first to see whether you have cause to check with them further.

With regard to the initial consultation, immediately call a mental health professional and state the objective facts. The conversation should not include any subjective conclusions or speculations.

The first question to ask the mental health professional is whether, in light of the facts, a mental examination is advisable. The follow-up question, if appropriate, is whether the employee should be removed from the workplace pending results of the examination.

If the independent mental health professional recommends removing the employee from the workplace, then the employee can and should be removed in accordance with the recommendation. Although this reliance is not an absolute defense in litigation, it will go a long way in establishing the reasonableness of the employer's actions.

The next step is to require a medical examination to determine the employee's fitness for duty. Ideally, this should be done by a different health professional from the one providing the initial recommendation.

It is important for the employer to specify in writing what standards the mental health professional should apply in evaluating the employee. The sole issue is whether the employee poses a risk of harm to himself or others in the Workplace. Generally, it is recommended that the employer use the "direct threat" standard narrowly set forth in the ADA.

The employer also should make clear that it does not wish to know the basis for the mental health professional's ultimate conclusion. More specifically, the employer should not be told the employee's psychological history or any current disorders the employee may have.

Without such limiting language, the mental health professional, in the interest of being helpful, may disclose information about the employee's past and present mental disabilities that the employer would rather not know. Once the employer knows of these disabilities, any adverse action it subsequently takes is suspect and subject to challenge.