Just a few days after the Virginia Tech shooting, a 51-year-old former Target employee (described by his sister as "mentally ill and an alcoholic") drove to a crowded mall parking lot and began shooting at Sunday shoppers. After killing two bystanders, he began walking toward his former employer’s store, gun in hand, when he was shot by police.
Violent attacks, threatening behavior and verbal abuse, unlike random acts of kindness, are neither random nor unpredictable. Wise employers take the time to carefully craft a workplace violence prevention plan because they know that "workplace violence" is synonymous with "employer liability." While many threats of violence and abusive behavior ultimately turn out to be a case of "bedeviled dad gone over the edge" (think Alec Baldwin), there are increasing instances of violent situations that, unfortunately, develop into a Virginia Tech catastrophe. Disgruntled employees and former employees hell-bent on causing havoc make the workplace particularly vulnerable.
I am certain human resource professionals and managers across the country laid awake at night last month wondering, "Would I have hired Cho Seung-Hui if he applied for a job at my place of business?" There is reason to worry.
The simple truth is that the same questions required to weed out mentally disturbed gun purchasers ("Do you have a diagnosed mental illness regardless of whether you are receiving treatment?") cannot be asked of a person applying for a job operating a rivet gun or driving schoolchildren on a bus without violating the Americans With Disabilities Act. Savvy employers know that under the ADA, employers may ask only if the applicant is able to perform the essential functions of the job with or without a reasonable accommodation.
Although the employers involved in the cases described below eventually ended up on the winning side, these cases illustrate how easily employers can wind up in court--sued under the ADA--because they took job action against employees with a mental disorder.
Police officer McKenzie was seen discharging several rounds of her sidearm into the ground at her father’s grave. She had a history of post-traumatic stress disorder. Despite the fact that she had a positive employment record, fellow officers were not confident in her skills and looked at her as "volatile." McKenzie applied for (but was turned down) for a job as "peace officer." She filed a lawsuit under the ADA. McKenzie v. Benton (10th Cir., 2004).
Plaintiff Morris suffered from post-traumatic stress disorder, anxiety attacks, depression and insomnia. All of her conditions were greatly exacerbated by stress. In 2001, Morris served on a jury that deadlocked at a vote of 11-1; Morris was the 1. Her name was leaked to the press and she was hounded by both the press and angry callers for some time after the trial. This stressful situation caused her to take an approved leave of absence from work. While on leave, her father died and her leave was extended. When her leave ended and the company asked Morris to return to work, she commented frequently to co-workers that she didn’t understand why the company had forced her to come back to work when she was suicidal and possibly homicidal. Because of her comments, the employer believed Morris to be dangerous and she was fired. Morris v. Bell South Telecommunications Inc. (M.D.N.C. 2004)
A twenty-year employee with an unblemished work record developed post-traumatic stress syndrome after he saved a person from drowning. The employee eventually erupted in anger at a female co-worker, shouted obscenities at her, and struck her. He was fired for violating the company’s workplace violence policy. Hamilton v. Southwestern Bell Telephone Co. (5th Cir. 1998)
How do employers sleep at night knowing they may have hired--or already have working on their floor--an unbalanced employee plotting revenge? HR managers and employers suffering from insomnia should concentrate on the following:
In limited circumstances, the ADA permits employers to inquire about an individual’s mental disabilities. Employing the EEOC-approved "fit-for-duty" examination allows employers who observe bizarre employee behavior to have the employee examined to determine his/her ability to perform the essential functions of the job, with or without a reasonable accommodation. Understanding and cautiously applying the fit-for-duty exam allows employers to make informed, legal job decisions to avert a workplace disaster.
Check employee references. An incident with a Georgia nurse who cared for a series of patients all who suddenly, unexpectedly died led to many states granting immunity for employee reference checks. Remember that reference checks are still subject to applicable discrimination laws and, depending on who conducts the checks, the Fair Credit Reporting Act. Nonetheless, steering the narrow course to both get and give honest references is essential in today’s all-too-violent workplace.
Prepare a detailed crisis management plan that prepares for the unexpected. The company’s lawyers, human resource personnel and management team should work together closely to develop a management plan geared toward prevention and the management of workplace realities.
Some form of employee assistance program--getting troubled employees help when needed--has moved from the category of "out of the goodness of our hearts" to the realm of "business necessity."