Workforce.com

Vigilance Stops Violence--and Lawsuits

Behavior that can escalate to violence is increasing in the workplace. To quell violence--and lawsuits--HR must recognize and respond to problem behavior.

October 17, 2002
News reports tell of disgruntled employees who massacre coworkers andsupervisors in a murderous rage: A crazed man bludgeons his wife and children todeath and then goes on a shooting spree in Atlanta at two day-trading brokeragefirms. A Xerox repairman guns down coworkers in Honolulu. An engine-plantemployee opens fire in Illinois. A delivery-truck driver goes postal in Alabama.

Stories about workplace violence are as horrifying as subsequent lawsuits arecostly. But the real scope and nature of workplace violence and its legalramifications isn’t a topic that generates shocking headlines. Patricia Biles,workplace violence program coordinator at the Occupational Safety and HealthAdministration, says the compelling issue today for HR professionals is theincrease in the number of nonfatal injuries and victimizations in the workplace--fromacts of intimidation and mobbing to sexual assaults and domestic violence thatspills into offices and adjoining parking lots.

Stephen Paskoff, former labor lawyer and president of Employment LearningInnovations, Inc., a legal training group in Atlanta, says understanding the lawis the easy part. “The hard part, the major issue, is making sure we do whatwe can to prevent violence. Employers often focus on the worst thing that canhappen in a legal claim, that the company is too intrusive. They are concernedabout giving bad references. They are concerned about invasion-of-privacy anddefamation claims.

“But there is no worse thing you can do than fail to act and then some kindof catastrophe happens as a result. Truly, we are focusing too much on thelegality and not enough on prevention. My advice is this: Don’t be timid. Act.Act. Act.”

Like other attorneys, consultants, and researchers who work in the field ofworkplace violence, Paskoff says that legal protection begins with knowing what’sgoing on in the workplace, recognizing and responding to problem behavior, andmaking every effort to provide employees with a safe work environment. Many ofthe most common legal liabilities are related to an employer turning a blind eyeto repeated threats, intimidation, and other festering problems that eventuallyexplode into violent acts.

“Many companies are in denial,” Biles says. “I’d say that two-thirdsof companies in the country don’t have any [violence-protection] program. It’snot enough to have a written program if you don’t train managers and make sureit works.”

Despite complexities and the distinctly different specialty areas that makeup labor law, experts agree with this basic premise: HR professionals cannothelp protect employees from harm--and companies from lawsuits--unless theyface behavior problems directly, heed warning signs, train managers in violenceprevention, intervene skillfully and quickly, and take all threats seriously.

Referring to the government guidelines established in 1996 for protectingemployees from workplace violence, Gary Mathiason, workplace violence law expertand partner at Littler, Mendelson, Fastiff, Tichy & Mathiason in SanFrancisco, says, “We’ve gotten past the stage of having good policies. Therehas been a cultural revolution in the workplace about what’s accepted and what’snot. Training programs have helped reduce the number of homicides. Still,intimidation and other nonphysical violence is an enormous, enormous problem,and the effects on the workplace are overwhelming.


“Workplace violence is not just about homicidal clients, or ragingday-traders in Atlanta, or disgruntled postal workers,” he adds. “What weneed is to educate employees and managers about what to look for, what can andshould be reported. The worst thing to do legally is to see an escalation andnot intervene.”

“Workplace violence is not just about homicidal clients, or ragingday-traders in Atlanta, or disgruntled postal workers,” he adds. “What weneed is to educate employees and managers about what to look for, what can andshould be reported. The worst thing to do legally is to see an escalation andnot intervene.”

As an example, Mathiason tells about an HR manager who recently contacted himwith a gnawing concern. An employee had come to him after visiting a coworker athome. The reporting employee said he was shocked at seeing several weapons. TheHR manager doubted that it was a workplace concern because the employee whoallegedly had the weapons was soft-spoken and had no disciplinary problems.

Still, the HR manager wondered if there should be some kind of follow-up. AtMathiason’s suggestion, the company did launch an investigation. Coworkerswere asked if they felt uncomfortable or threatened by anyone at work. Twoemployees broke into tears and reported repeated death threats to gays and Jewsfrom the employee who had all the guns. The investigation also showed that theemployee in question had prior criminal convictions for violent offenses.

These disclosures allowed the company to carefully take action to remove thethreatening employee from the workplace and to gain the assistance oflaw-enforcement officials. It was a serious problem that could have grown farworse, Mathiason says, and illustrates how vital it is to investigate potentialthreats, and to intervene.

Legal precedents and quagmires
    In January, a federal appeals court in New York ruled that Delta Air Lines ispotentially liable under sexual-harassment law for not doing enough to stop whata flight attendant contends was a rape by another attendant. Because the eventsoccurred when the two people were off duty in a hotel room, and not at atraditional work site, the case is of particular interest to HR professionalsand labor lawyers. It shows the outer limits of how the workplace can bedefined, and underscores the necessity to keep abreast of legal precedents.

The court held that the hotel in Rome where flight attendants stayed duringlayovers could be considered part of their workplace. The flight attendant inthe case sued the airline after claiming she was attacked by a male attendantwho had worked on the same Delta flight from New York City to Rome.

Other cases of workplace violence--when companies lose and when theywin--illustratethe range of legal issues that can and do crop up in courtrooms:

• A California superior court in 1998 awarded a former shipping clerk$909,000 after he claimed he was harassed, threatened with violence, andeventually fired because of his sexual orientation. The man claimed he wasregularly subjected to verbal insults and threats, and that the companydismissed his complaints.

• A Utah state district court in 2002 ruled in favor of America Online,Inc., for terminating three employees because they violated its zero tolerancefor weapons at work policy. The employees were seen in the company parking lottransferring guns from their cars before carpooling to a local shooting range.The company won the lawsuit because of the liability issues involved and thenature of the firm’s no-weapons policy.

HR managers increasingly occupy a pivotal role in an organization’sviolence-prevention program. They not only must know how to help create a safework environment, but also must understand the ramifications of what can happenwhen a company doesn’t live up to the law and to the federal OccupationalSafety and Health Act requirement: Employers must provide their employees with aplace to work that is “free from recognized hazards that are causing or likelyto cause death or serious physical harm to . . . employees.”

The General Duty Clause was designed to encourage companies to take steps toprevent violence in the workplace. Criminal penalties may be imposed against anemployer that is convicted of having willfully violated an agency standard orrule. In its 1996 Guidelines for Preventing Workplace Violence for Health Careand Social Service Workers, OSHA defines workplace violence as any physicalassault, threatening behavior, or verbal abuse occurring in the work setting.

Lawyers, policy makers, and HR professionals say that government guidelinesin recent years have helped raise consciousness considerably. Still, they aresurprised at the number of employers--many of which have a written policy--thatdon’t take the issue seriously at all.

To illustrate the issue, Paskoff uses this case as an example of howcompanies can expose their organizations to huge legal problems and costs whenemployees are placed in harm’s way. A female employee of Wal-Mart Stores,Inc., sued the national chain for negligence, claiming that the company failedto ensure her safety. The employee was shot and critically wounded by herhusband while at work. Despite the store’s knowledge of previous physicalabuse and a court order against the husband, the employee alleged, the companydid nothing to prevent the attack and took no safety precautions.

The lawsuit claimed that the company failed to call the police when theemployee’s spouse arrived at the store, didn’t provide adequate security,and had no policy or procedure in place to protect employees from spousal abuseat work.

“I am amazed at how many people don’t understand the basic skills forhandling potentially violent situations--how to de-escalate, how to stay calmand engaged, why it is important for HR to address inappropriate behavior andmake it clear that it won’t be tolerated,” says Barry Nixon, a former HRmanager who is founder and president of the National Institute for thePrevention of Workplace Violence in Lake Forest, California, and host of Workplace Violence Today, a radio show that also can be accessed on the Web atwww.sullivaninternational.com. “Keep in mind that the potential for a violentact to occur is significantly heightened when three variables come together: ahighly stressed individual, stressful events, and when a person is exposed to acallous, disrespectful, uncaring, insensitive environment.”

Rebecca Speer, an attorney in San Francisco whose firm specializes inemployee-relations management, including workplace violence, says that employersleave themselves open to all kinds of harmful incidents and expensive lawsuitswhen they allow potential problems to escalate without interceding. When thathappens, the employers can be charged with approving the behavior--and be heldliable. “If someone in the workplace threatens someone else, for example, andyou turn a blind eye, that can be interpreted as approval of that misconduct,”Speer says.

Costs, consequences, and recommendations for HR
    In order to properly protect employees--and your company--from legalproblems, Biles says, HR professionals must arm themselves with informationabout workplace violence. For example, in recent years, homicides have movedfrom second to third place as a cause of work-related fatal injuries (behinddeaths related to motor vehicles and accidents). The Justice Department reportsthat homicides in the workplace have declined 44 percent since 1993. There were674 killings in 2000, down from highs of about 1,000 fatal assaults a year inthe early 1990s.

“The biggest myth is that coworkers are at big risk,” Biles says. “No.The number of workplace homicides involving coworkers is less than 10 percent.Three-quarters--75 to 80 percent--are robberies.” (The statistics promptedone observer to proclaim: “You have as much chance of getting killed by acoworker as you do getting hit by lightning.”) Cash is the motive, and mosthomicides are related to robberies in taxis and convenience stores, she says,adding that the largest number of nonfatal assaults occur in health-caresettings, particularly emergency rooms and psychiatric facilities.

Harassment, intimidation, and inappropriate aggression are the problems thatemployers must educate themselves about, she says. These are the kinds ofbehavior that often lead to bigger problems. “Most serious assaults don’thappen in a vacuum.”

In the United States, an average of 1.7 million violent victimizations peryear were committed against persons who were at work or on duty between 1993 and1999, according to the National Crime Victimization Survey. Paskoff and otherexperts in the field estimate current numbers at about 2 million a year. Theseinclude incidents such as simple and aggravated assaults, robberies, thefts,hostage-taking, hijackings, rapes, and other sexual crimes.

The Workplace Violence Prevention Reporter states that the averageout-of-court settlement for this kind of litigation is about $500,000. Theaverage jury award is $3 million--and can, of course, skyrocket.


Among the major reasons for the decreasing number of homicides in theworkplace are training programs, employer interventions, and an increase in thenumber of restraining orders filed and granted in the past two years.

Among the major reasons for the decreasing number of homicides in theworkplace are training programs, employer interventions, and an increase in thenumber of restraining orders filed and granted in the past two years, saysArthur Silbergeld, an attorney with Proskauer Rose who practices out of the firm’sLos Angeles office. Restraining orders help protect victims of abuse by lettingthe aggressors know that they are on notice, and that their behavior couldresult in a lawsuit.

Silbergeld says that a lot of companies are complying with governmentguidelines and are educating employees about vital issues such as why opendiscussions about violence are important, how employees are supposed to reportconcerns, and what potentially dangerous situations look like. “A lot ofemployees have been sensitized,” he says. “There is an increased ability tosay, ‘This person’s not acting right,’” and to take action.

“Our experience has been that it’s relatively easy for a judge to grantan injunction keeping a person at a good physical distance from a plant,”Silbergeld adds. “The judge sees no harm in issuing a restraining order.”When a company pays the legal fees in such a situation, and the employee doesn’tnecessarily have to bear the brunt of legal costs, he says, a potentiallyexplosive situation often can be defused. An employee can go to HR and say, “I’mscared. My ex-husband is calling with threats and he’s stalking me in theparking lot.”

The impact of a restraining order can be profound, he says. “We get aninjunction, and the husband is intimidated by the possibility of going to court.The willingness of the employers to come through helps minimize the threat.”

What is increasingly clear is that courts are sympathetic to employers’good-faith efforts to protect their workforces and the public from potentiallyviolent people. These efforts include effective violence-prevention programs,careful investigations, and documentation. “The key, though, is to basedecisions on proper evidence and to be able to accurately articulate a concernregarding potentially violent conduct,” Paskoff says. This evidence should--asmuch as possible--be based on facts, not speculation.

In addition to learning how to implement effective measures that will helpprotect organizations legally, HR must be trained in behavioral matters thataffect conduct. As a psychiatric physician, Dr. Eliot Sorel comes to the issueof the law and workplace violence from a different perspective. He is a clinicalprofessor of psychiatry and behavioral sciences at George Washington UniversitySchool of Medicine and Health Sciences, president of the Medical Society of theDistrict of Columbia, and chairman of the Violence Task Force for the WorldPsychiatric Association. He is steeped in the study of workplace violence, butemphasizes that he is a consultant and scholar, not an attorney.

“HR is at a very important interface both horizontally and verticallybetween coworkers and managers at all levels,” Sorel says. “People in HR arethe modulators of acceptable and unacceptable behaviors in the workplace. It isimportant to specify what is and is not acceptable behavior, whether it’sphysical or emotional, such as bullying, teasing, or inducing fear--a certainkind of fear such as not knowing what a supervisor thinks of your performance.The fear is that a terrible sword will fall on you. When an employee isn’tdoing well, and he’s not receiving feedback, that likely induces fear.


"Myadvice is this: Don’t wait. If things aren’t working, you should intervenepromptly. Because when fear is sustained, year after year, and there is anxiety,depression, and inappropriate aggression, the likelihood of its being expressedphysically increases."

“You have to give feedback,” he continues. “If you don’t, you arefaced with what in medicine we call chronic, harder-to-cure situations. Myadvice is this: Don’t wait. If things aren’t working, you should intervenepromptly. Because when fear is sustained, year after year, and there is anxiety,depression, and inappropriate aggression, the likelihood of its being expressedphysically increases.”

Successful companies establish collaborative work protection teams thatinclude representatives from HR, the legal department, management, and health,life, and safety programs, Sorel says. The result is better communication bothinternally and externally with agencies such as law enforcement.

Like many of his colleagues, Sorel says that early intervention, “with ameasured response,” is the best antidote to violence. “Inappropriateaggression undermines safety and security and interferes with productivity,”he adds. “It undermines the ability of people to work as a team. HR mustdevelop positive solutions such as timely feedback.”

Human behavior is, of course, complex. That’s why early intervention issuch a challenge for HR--behaviorally and legally. “People learn aggressionfrom their families,” Sorel says. “They bring their experience from theirfamilies to work.” And HR has to deal with the baggage.

Those close to the issue say that an investment in legal training and early,effective intervention pays off. In most lawsuits involving workplace violence,warning signs were usually present. But the company culture wasn’t clued in.Conversely, companies often win lawsuits related to workplace violence whenpolicies are in place and management is trained. The Arkansas District Court,for example, ruled in favor of a railroad company after a “disruptive”employee was suspended for threatening to kill two coworkers and prevented fromreturning to work until she received medical clearance from a psychiatrist.

In another case, an employee’s claims of national-origin discrimination,and age and sex bias, were dismissed by a district court. The employee felt hewas due a bonus because of innovations he had suggested, and became veryagitated during a meeting with a plant manager and an HR representative. Theemployee pounded his fists on a table, shouted, and broke his safety goggles inhis hand. The HR representative contacted security, and the employee wasescorted off the premises. He was then terminated because of his propensity forviolence. The court cited the employee’s increasingly agitated demeanor,disruptive behavior, and violation of company policy during the meeting as ajustifiable reason for the termination.

Consultant Barry Nixon says that what companies should be concentrating on inthe name of protecting employees from violence and companies from lawsuits hasmore to do with civility and the Golden Rule than it does with extravagantsecurity systems. “HR has to address authoritarian and aberrant behavior,”he says. “If an employee is very successful and can bring in the numbers, forexample, managers tend to overlook the person’s aberrant behavior. And if youdo that, you have to ask, ‘At what cost?’

“To protect yourself legally, you have to intervene, but you have to knowhow to intervene and what to tell an employee. You can’t just say, ‘You’vegot a problem. Deal!’ You have to learn to intervene in a non-intrusivemanner, how to handle conflict situations, how to resolve conflicts.

“It isn’t rocket science.”

Workforce, October 2002, pp. 38-44 -- Subscribe Now!