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Workers fired for threatening violence lose in court

September 18th, 2015  |  Lorene Park

By Lorene D. Park

In the wake of heartbreaking incidents of workplace violence that make national headlines, it is natural for employers to reevaluate workplace violence policies to try to avoid similar incidents. When it comes to enforcement, and firing employees for violating any policy, employers will be concerned about potential liability if the employee sues for discrimination or other claims. But having viewed cases where threats of violence played a key role, I believe “zero tolerance” and consistent enforcement is the best way to go. When it comes to firing someone for threatening coworkers or supervisors, courts generally side with employers. For example:

  • The Ninth Circuit recently affirmed summary judgment for an employer on an employee’s disability discrimination claim under Oregon law because, even assuming he had major depressive disorder, he could not show he was “qualified” at the time he was fired because he repeatedly threatened to kill coworkers. Though he claimed to have been bullied at work, the appeals court noted that an “essential function of almost every job is the ability to appropriately handle stress and interact with others.”
  • Denying enforcement of a National Labor Relations Board order, the Eighth Circuit found that an employee’s termination under a zero tolerance workplace violence policy, after he made a “cut throat” gesture toward a coworker, did not constitute a violation of the NLRA because the discharge did not result from the employee’s participation in a strike.
  • A highway engineer’s Title VII retaliation suit was dismissed after a federal court in Indiana found that he failed to show he was meeting his employer’s legitimate expectations at the time he was fired. He had violated the workplace violence policy in angrily pointing a finger at his manager in a threatening manner while stating he “hated [his] guts” and would “never lay eyes on [him] again.” His affidavit explaining his version of events failed to dispute the manager’s sincere feelings of being threatened.
  • In a recent NLRB ruling, a three-member panel held that an employer did not violate the NLRA by firing an employee who threatened a coworker (and member of the union executive board). Under the employer’s work rules, threatening an employee is a “major offense” for which employees are subject to discharge without warning.

As these cases indicate, so long as an employer fires an employee because he or she was violent or has threatened violence, and not for an unlawful reason such as discrimination (using fear of violence as a mere pretext), the employer is unlikely to face liability. Moreover, in cases where employers don’t stop intimidation, violence, or threats, they significantly increase their chances of liability for a hostile work environment or other claims. In one case, the Eighth Circuit reversed summary judgment against an American-born woman’s Title VII claim concerning a group of Somali-born immigrants who were her subordinates and who engaged in name-calling, used threatening language and stance, threw files, and said “American women were disrespectful because they were not beaten enough.” Though the hostility came from subordinates, it was tolerated by higher management, which ignored her complaints and denied her authority to fire an offending employee. That was enough to support her hostile work environment claim.

Prevention comes first. When it comes to best practices, having a zero-tolerance policy prohibiting violence and threats of violence is not enough. Prevention comes first: supervisors should be trained to recognize and report potentially violent coworkers. Individuals do not usually just “snap,” and there are often signs which, if recognized, could lead to preventative action. Some signs could include:

  • Increased use of alcohol or drugs and unexplained absences
  • Decrease in attention to appearance and hygiene
  • Depression, mood swings, suicidal comments, or talk of problems at home
  • Unsolicited comments about firearms or other weapons
  • Signs of domestic abuse
  • Verbal threats or acts of aggression at work, including menacing gestures, intimidation, disorderly conduct, and aggressive “horseplay”

That is not to say that everyone who has one or more of these signs will become violent and certainly some signs are bigger red flags than others. The point is simply to train managers and employees to recognize warning signs and to report them, and train all staff on steps to take when faced with violence or threats of violence. OSHA’s website on violence provides valuable information on risk factors, prevention programs, training, and enforcement. It also issued a fact sheet that provides helpful suggestions for addressing workplace violence, and recently issued updated guidelines tailored for healthcare and social service workers. In addition, the Department of Homeland Security has issued a booklet addressing shooter situations in particular.

“Zero” tolerance should apply to everyone. Employers must enforce policies consistently. For example, if an employer disciplines only certain individuals in categories protected by Title VII, the ADA or other anti-discrimination laws, then there is greater potential for liability. For example, a Louisiana rehabilitation facility’s motion for summary judgment was denied as to the race discrimination claim of an African-American employee based on evidence that she was fired for a physical altercation with a resident while a similarly situated Caucasian worker who struck a resident was not.

With respect to the ADA, an EEOC enforcement guidance concerning individuals with psychiatric disabilities explains that “nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence” and an employer may discipline a disabled individual for violating a workplace standard, even if the misconduct resulted from a disability, so long “it would impose the same discipline on an employee without a disability.”

Consistent enforcement is also at issue when an employer tolerates violence or threats lodged only at a protected group. Recently, a federal court in Oregon found triable issues of fact on an employee’s race-based hostile work environment claim where unwelcome physical “horse play” was directed only at African-Americans. The incidents included being slapped in the back of the head, pinched in the ribs and struck on the shoulder. There was also at least one comment by a coworker that African-American employees need to be “slapped upside the head.”

A final word. When it comes to adopting and enforcing a zero-tolerance violence policy, there are considerations beyond simply providing a safe work environment and avoiding liability. One case I found appalling (and I’m guessing a jury will too) comes to mind: an employee was repeatedly threatened by a coworker, who made numerous threats of violence at the employee and others, smashed a chair, and brought ammunition to the office, which he displayed on his desk after having inscribed the employee’s initials on one of the bullets. The employee notified HR of the bullet incident but was simply told he was not in danger. Though the coworker was fired after the employee contacted police, the employee soon learned the coworker was coming back. Assuming these allegations are true, the employee very understandably began missing work due to extreme anxiety. After he was fired for unexcused absences despite providing medical documentation, he filed FMLA retaliation and interference claims. Unsurprisingly, a federal district court in New York found the claims plausible. This employee’s extreme anxiety is a good example of the damage that can be done not just by violence but by repeated threats. It is not okay to allow this type of behavior to go on.