The recent murder of Yale student Annie Le has returned the issue of workplace violence to the front burner of corporate America. Notwithstanding the efforts of employers, workplace violence may not be completely preventable. Employers can, however, reduce the risk of violence occurring in the workplace by being cognizant of applicable law, having and enforcing policies addressing workplace violence, and being vigilant and taking affirmative steps to reduce the risk of violence.
A common fact pattern concerns an employee who has made a threat of violence and thereafter claims that the threat was the result of some alleged psychological illness, such as depression, anxiety, schizophrenia or compulsive behavior, and requests that his or her conduct be excused or that he or she be provided with a reasonable accommodation. It is wellsettled that the law does not immunize an allegedly disabled employee from termination for incidents of misconduct in the workplace, regardless of whether the employee’s conduct was a manifestation of his or her alleged disability. This position is fully supported by the Equal Employment Opportunity Commission, which issued guidance in 2008 entitled “The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities” (the “ADA Guidance”). Among other things, the ADA Guidance provides that “[t]he ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability.” Further, the guidance provides that “[i]f an employee states that her disability is the cause of the conduct problem or requests accommodation [following the unacceptable conduct], the employer may still discipline the employee for the misconduct” and “[i]f the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.” Thus, the employer can and should take appropriate action with respect to any employee who threatens violence against another employee.
Policy Adoption and Enforcement
Employers should adopt policies forbidding workplace violence. The policy should state that (i) the employer expressly prohibits any act or threat of violence by a company employee against any other employee or otherwise in connection with the employer’s business; (ii) it is the employer’s policy to (A) take disciplinary action, up to and including termination of employment, against any employee who engages in any threatening behavior or acts of violence in the workplace, (B) take action when dealing with visitors to the employer’s facilities who engage in threatening behavior or acts of violence and (C) prohibit employees and third parties from bringing firearms or other weapons on to the employer’s premises; (iii) such action may include notifying the police or other law enforcement personnel and prosecuting violators of the policy to the maximum extent of the law; (iv) all employees are responsible for respecting the safety of others and have a responsibility to alert the Human Resources Department of any potentially troublesome workplace situations, activities or incidents that they observe or of which they are aware, including, without limitation, threats or acts of violence, aggressive behavior and threatening comments or remarks; and (v) any employee who fails to comply with the policy will be subject to appropriate disciplinary action, up to and including termination of employment.
Of course, it is not enough for an employer simply to have such a policy. The employer must enforce the policy rigorously and consistently. If the employer becomes aware that an employee has been threatening violence against another employee or has acted in a violent manner, it must promptly investigate the situation and consider removing from the premises pending such investigation any employee it suspects of such misconduct or believes might be in harm’s way. In addition, employers should bear in mind that taking different disciplinary action for the same or similar conduct has at least two adverse consequences: (i) it causes confusion among employees as to what conduct is prohibited and what conduct is permitted and (ii) it creates legal risk of a disparate treatment claim.
Being Vigilant and Taking Affirmative Steps to Reduce the Risk of Violence
As a result of the economic downturn, millions of workers have lost their jobs through reductions-in-force and other termination events. When conducting mass terminations or terminating employees who have exhibited aggressive behavior in the past, employers should consider having security on hand to dissuade or respond to any threats or acts of violence.
Difficult economic times also have increased the anxiety of those employees who have maintained their positions. In many industries, compensation has been frozen or reduced and remaining employees frequently have greater workloads in light of the downsizing or lack of hiring at their firms. In this environment, employers should look for warning signs of potential trouble, such as where two employees are becoming increasingly rude to one another, and deal with the issue before it mushrooms into something more dangerous.
There are affirmative actions an employer can take to reduce the anxiety that workers are currently experiencing. Employee Assistance Programs (“EAPs”) permit employees to contact trained professionals in a confidential manner about personal issues they are experiencing. Many employers have EAPs; those that do not may wish to consider implementing them. In the event an employer has an EAP, it should publicize the availability of such a program — it is likely many employees are unaware of the existence of the program — to employees in regular communications to them. In addition, many employees are foregoing vacation time, fearing that taking such time may increase the likelihood they will be terminated; employers should encourage employees to take vacation days to help minimize the negative effects of stress.
Workplace violence presents as a rather amorphous problem — there is no sure-fire way to avoid such conduct. Creating and enforcing appropriate policies, vigilance in responding to aggressive acts and threats of violence, and understanding the related legal concepts can help employers ensure the safety of their employees.