The unthinkable tragedy at Virginia Tech on April 16, 2007 was the worst school shooting in American history. This unspeakable calamity, which involved the deaths of some thirty students, faculty, and staff, and impacted hundreds more, highlights the significant safety concerns that everyday employees and employers confront in today's workplace. The number of workplaces impacted by violence is indeed staggering. According to a 2001 Department of Justice study, the average yearly number of incidents of workplace violence between 1993 and 1999 was 1,744,300. This included a yearly average of 900 homicides, 36,500 rapes/sexual assaults, 70,100 robberies, 325,000 aggravated assaults, and 1,311,700 simple assaults. In 2002, the Occupational Safety and Health Administration ("OSHA") reported that eighteen percent of violent crimes (twenty-two percent of all males and fifteen percent of all females violently victimized) were committed while the victim was working or on duty. The OSHA more recently reported that homicide is the fourth leading cause of fatal occupational injury in the United States. These statistics of course do not account for other less detectible, non-physical forms of workplace violence that can be just as troubling for employers and employees, such as bullying, emotional abuse, threats of violence, harassment (e.g. racial or sexual), and stalking.
The risk for employers in this area goes beyond that of safety, however. Employers are faced with a complex web of legal issues in dealing with workplace violence. First of all, employers must be cognizant of the legal liability they face for not taking steps to prevent workplace violence. The Occupational Safety and Health Act ("OSH Act"), for instance, imposes an obligation on employers to provide a place of employment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees." The federal agency responsible for enforcing the OSH Act has made clear that this obligation covers violence in the workplace, explaining in a 2004 Opinion Letter that the "failure of an employer to implement feasible means of abatement of these hazards could result in the finding of a violation of this Act and accompanying penalties." Moreover, most states allow victims of workplace violence to sue employers under a variety of common law legal theories such as negligent hiring, negligent retention, and negligent duty to warn. These claims can be financially ruinous for an employer. According to the Workplace Violence Research Institute, "negligent hiring" and "negligent retention" claims cost American businesses an estimated $18 billion a year. Employers thus have a vested financial (as well as moral) interest in preventing workplace violence through the most effective means available.
Employers must, however, be cognizant of the obligations imposed on them by various employment-related statutes that may, at times, be in conflict with their interest in preventing workplace violence. Chief among these statutes are the Fair Credit Reporting Act ("FCRA") and the Americans with Disabilities Act ("ADA"). Under the FCRA, employers may not conduct a background check into a current or prospective employee's criminal history or employment history without first notifying them and obtaining their written permission to conduct the investigation. If the employer wants to take an adverse employment action based on the background check, the FCRA requires that the employer give the employee a copy of the report accompanying the background check. With the ADA, employers generally may not require medical examinations of or ask medically-related questions to prospective employees. As explained by the Equal Employment Opportunity Commission, this prohibition covers written questionnaires and inquires made during interviews, as well as medical examinations that are likely to reveal the existence of a disability, such as whether the applicant has ever been treated for mental health problems. Depending on the scenario, the ADA might also require that an employer retain an employee who has violent propensities or who is addicted to drugs as a means of accommodating them, despite the legitimate risk the employee may pose in the workplace. Even worse, if an employer knows that a disabled employee is dangerous, the ADA prohibits employers, in most situations, from sharing information related to the disability with the employee's supervisors or the employee's coworkers.
Each of these various statutory prohibitions limit the employer's ability to detect and forestall workplace violence. They also place employers in a damned if you do, damned if you don't, catch 22 situation. On the one hand, employers should take proactive workplace violence prevention measures, such as implementing and vigilantly enforcing a zero-tolerance anti-workplace violence policy. Employers should also be reactive, beefing up security measures, employing conflict resolution mechanisms, or contacting local law enforcement officials when violence is foreseeable or imminent. Otherwise, they risk liability for ineffectively combating workplace violence. On the other hand, employers cannot blindly combat workplace violence. Employers must respect (or at least be aware of) the competing legal statutes that provide employees with certain rights, rights that may be in direct conflict with the employer's obligation to provide a violence-free workplace.