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Physical and Verbal Violence
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Physical and Verbal Violence
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A friend of mine wrote me with the following saga going on in her workplace: A woman in another department has been striking other employees and verbally abusing them. Two people complained to their m
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Forums » Topic Forums » Legal Forum » Physical and Verbal Violence
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Physical and Verbal Violence
posted at 6/22/1999 10:04 PM EDT
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Posts: 3
First: 6/22/1999 Last: 3/30/2000 |
A friend of mine wrote me with the following saga going on in her workplace: A woman in another department has been striking other employees and verbally abusing them. Two people complained to their managers, who took the matter to HR. HR launched an investigation, called the woman in, and told her about the complaints. They interviewed all of the employees involved in the situation over the course of three days. During these three days, the violent woman stopped working entirely and began to create a very unproductive work environment because of her negative attitude. At the end of the investigation, HR gave the woman a written warning, informed the managers of the two departments that they would not terminate her because her past performance had been good, and advised the people who had been hit by this woman to use the EAP if they felt violated. This woman was not sent to the EAP. This is a non-union, professional office environment, in southern California.
Is this a crazy resolution, or is it just me? And what legal implications might this company face, if any? |
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Physical and Verbal Violence
posted at 6/22/1999 11:33 PM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
Only a warning. Without more specifics, it seems to me at least a moderate to heavy suspension without pay is appropriate. And I'm not discounting that discharge would also be appropriate, again depending on facts. Violence in the work place, striking individuals as she did, must be taken seriously by management. Perhaps this may be her first offense, but it is socially unacceptable that violence is turned to. The employee should have known that without specific notification, or even a specific anti-violence policy. The employee's "good work performance" doesn't overcome the need of an employer to clearly demonstrate the unacceptability of blatant, repeated violence and a "warning" only shows that it is treated lightly by management. No, it's not you. |
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Physical and Verbal Violence
posted at 6/23/1999 5:37 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
I understand the caution expressed by the employer, although I think any response to this situation is something on which reasonable minds might disagree, Playing Devil's Advocate for a bit, it seems to me that this employee's behavior sounds as if she/he has a possible emotional or mental disability. If so, he or she could be protected under the Americans with Disabilities Act, which would mandate that the employer "reasonably accommodate" the condition. Now, almost all of the cases addressing this issue under the ADA have held that an employer need not tolerate physical violence as its "reasonable accommodation." But, as we do not know all of the facts (how hard was the hitting, what provoked it, etc.), we really cannot offer an opion about the appropriateness of the response. The truth be told, if the employer acts too quickly, a jury might second guess that decision 3 years later and rule that the employer had to give her another chance.
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Physical and Verbal Violence
posted at 6/23/1999 11:22 PM EDT
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Posts: 90
First: 6/23/1999 Last: 9/26/2001 |
There seems to be some interesting responses to the scenario presented. However, I think there is one thing that is being forgotten. If this individual physically hit another employee, does not the individual being assaulted have a right to file criminal charges against the person conducting the attack? Think about it. |
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Physical and Verbal Violence
posted at 6/24/1999 2:14 AM EDT
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Posts: 16
First: 6/21/1999 Last: 7/19/2001 |
EBG is exactly right -- I've had this experience twice at our office, not the physical violence, but the verbal (with 2 different people). In both cases, while we considered termination, we consulted our legal counsel and determined that to terminate was putting us at too much legal liability.
In fact, both of these individuals had been under medical treatment (and prescriptions) for mental health conditions. One was on a new medicine that the dosage hadn't yet been properly adjusted, the other had gone off medication entirely and shouldn't have. Both got a first and only warning -- if it ever happened again, they'd be fired and we had them sign a written memo indicating that this was the situation and that they understood. The most recent case is actually 2 years ago already and we haven't had the problem with either of them again. Both have returned to their pre-incident levels of exceptionally talented work performance. We made the decision we did for 2 reasons: first, the legal liabilities of firing someone who was protected under ADA; second, from a humanitarian viewpoint, both of these individuals obviously needed help and were in a situation beyond their control; we felt it was our obligation to help them get the help they needed and were unable to see what they needed on their own(approving a leave of absence, referring to the EAP) and to give them a second chance. |
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Physical and Verbal Violence
posted at 6/24/1999 6:32 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
ADA and "mental impairment" has become a catch-all unfortunately in these type situations. Nothing in the original post identifies that the employer knows of any mental impairment or that the employee even has a mental impairment that qualifies as a disability under ADA. In any case, if the employer has a policy that prohibits violent behavior in the office and holds both disabled and non-disabled accountable and the employer disciplines them, according to circumstances, equally, then ADA does not prevent a mentally impaired employee from being disciplined. Remember, reasonable accommodation is prospective once the employer becomes aware of an ADA qualifying mental impairment and the employee's need for reasonable accommodation. After-the-fact knowledge doesn't save the employer from its obligation under any anti-violence policy it has. Why do we automatically consider that any employee who becomes violent or acts strangely has a mental impairment? I find that approach to be condescending and an attempt to not hold individual's accountable when they should be. |
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Physical and Verbal Violence
posted at 6/24/1999 6:04 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
Boy, can I relate to YOUR comments. If you want me to Rant & Rave for a few minutes about how we now live in a society where NOBODY takes personal responsibility for her or his own actions, I would be happy to do so. The problem is (I think) that I advise clients in the real world.
In the real world, an employer's actions will be second-guessed by a judge or a jury looking backwards in time two or three years and then deciding whether what the employer did was legal. In the real world, the judge or jury has all of the information before the court, even if the manager or the employer did not. In the real world, juries are made up of employees for the most part, few are composed of employers or those who are required to act in a management capacity -- that means they natural sympathize with the plaintiff in the first instance, not the defendant. In the real world, a jury will try to do "justice," which may mean trying to do what is "fair" as opposed to what the law may require or prohibit. I have had too many cases involving employers who seemingly did nothing wrong only to later learn that the employee was suing the employer for "discrimination" or "wrongful discharge" or whatever. |
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