Labor law for supervisors

Court strikes down one violence remedy, but others abound

The Supreme Court this term concluded the civil rights remedy provisions contained in the Violence Against Women Act (VAWA) were unconstitutional. That statute was originally primarily intended to deal with the problem of

domestic violence; however, because of its wording, the VAWA was increasingly used by plaintiffs in work-related disputes.

The act stated all people had a right to be free from gender-based violence and had a right to sue individuals who subjected them to such violence for damages.

As a result, victims of non-consensual touching or kissing, assault, rape or abusive and threatening language and behavior were suing their fellow employees and the companies that employed them under this statute.

The VAWA had considerable advantages for plaintiffs. It allowed them to bypass administrative agencies such as the EEOC, provided for substantial damages as a remedy and entitled them to directly sue the perpetrator of the conduct. Additionally, at least one court had held that plaintiffs could sue the company itself for such violence, if the company was aware of the problem and did not take appropriate action.

Recently, three former restaurant employees were awarded more than $700,000 for claims based on violations of VAWA.

The court stated the women had been subjected to sexual harassment and intentional, sex-based discrimination, including unwelcome and offensive vulgar sexual comments and joking, sexual overtures, and sexual touching, primarily engaged in by the company president and a manager.

Although constitutional issues had been raised in many of the cases, almost all of the courts held that Congress had the power under the Commerce Clause to pass such legislation because gender-related violence had a nationwide effect on the workplace, and Congress has the right to regulate interstate commerce.

Although the act was also passed under Section 5 of the Fourteenth Amendment, the courts did not go on to address that basis for passage.

One court, however, did find the statute unconstitutional under both the Commerce Clause and the Fourteenth Amendment on the grounds that Congress had exceeded its constitutional authority.

The Supreme Court, in a 5-4 decision, upheld that interpretation of the VAWA, a decision that has far-reaching implications for employment-related federal statutes. Wells v. Lobb & Co., Nos. 97-WM- 1011, 97-WM-1317, 98-WM-279 (D. Colo. Dec. 1, 1999).

The consolidated cases, U.S. v. Morrison, and Brzonlkala v. Morrison, 120 S. Ct. 1740 (2000), did not involve a work-related incident.

Rather, they involved the alleged rape of a college student by two college athletes, one of whom reportedly made statements during and after the occasion that reflected considerable gender-based hostility.

The Supreme Court in discussing the Commerce Clause basis for the statute started that gender-based crimes of violence were not, in any way, economic activity, as required under the Commerce Clause.

Additionally, the statute contained no jurisdictional provision establishing that the cause of action was in furtherance of Congress' regulation of interstate commerce.

Also, although Congress had made numerous findings about the effect of gender-based violence on victims and their families, its reasoning, if accepted by the Court, would allow Congress to regulate any crime whose national impact, taken in total, had a substantial effect on employment, production, transit or consumption.

This would include not only violence, but also family law and other areas of state regulation traditionally, and best, left to the states to handle.

Therefore, the Supreme Court would not allow Congress to regulate noneconomic, violent criminal conduct based entirely on the conduct's total effect on interstate commerce.

In analyzing the Fourteenth Amendment basis for passage, the Court had similar concerns.

The Fourteenth Amendment allows Congress to pass legislation to guarantee that no state deprives any person of life, liberty or property without due process, or denies anyone the equal protection of the laws.

Although Congress maintained that pervasive bias against victims of gender-motivated violence was present in various state judicial systems, the Supreme Court noted that the Fourteenth Amendment prohibits only state

conduct, not private conduct.

The VAWA's civil rights remedy was directed not at the state but at individuals who committed gender-motivated crimes of violence.

Further, the Court stated that the VAWA applied throughout the United States even though Congress' findings did not indicate that the problem it was intended to address existed in all, or even most, states.

This decision has major implications for other employment-related statutes that Congress might choose to pass.

While most of the employment-related statutes currently in existence were passed, and upheld, under Congress' power to regulate interstate commerce, the Supreme Court has made it clear that it is regarding newly-passed

legislation in a different light. The ability of Congress to pass workplace discrimination statues has been greatly constricted.

Although the VAWA civil rights provisions were held unconstitutional, numerous other remedies remain for victims of workplace violence. The following area examples:

Intentional Infliction of Emotional Distress

A female employee was assaulted and choked by a resident of an institution for the developmentally disabled.

Distressed, she called the manager immediately afterwards and asked him to return to the facility. He refused.

The court stated that the manager knew the employee was upset, and a jury could infer that his decision to leave her alone with her attacker reflected an intent to inflict more emotional distress and put her in additional danger.

The manager's failure to act was beyond the parameters of socially tolerable behavior, the court concluded, and the employee, therefore, properly recovered against her employer for the intentional infliction of emotional distress caused by the manager.

Maccrone v. Edwards Center, 14 IER Cases 1804 (Ore. Ct. App. 1999).

Battery

A male employee who had worked for a company for five months was summoned to an office for a "weighing in" ceremony.

When he entered the office, the employee maintained, he was induced to stand in the center of the room among a group of other employees.

While one employee held him, the company president with no notice hit him sharply on the buttocks with a carpenter's level. The employee contended that he sustained physical injuries and would continue to experience emotional distress, anxiety, embarrassment and humiliation.

The company denied the incident occurred but acknowledged that similar hazing had.

A jury awarded the employee $6,000 in compensatory damages and $1,000,000 in punitive damages, which was reduced by the judge to $130,000 in punitive damages.

Smith v. Phillips Getschow Co., No. 97-CV-207 (Wis. Cir. Ct., judgement entered Oct. 11, 1999). The decision was upheld on appeal.

It is not only the individuals involved in battery who may be held liable.

In another case, a court stated that an employer may be deemed vicariously liable for one employee's battery of another if the perpetrator was acting within the scope of his employment.

To ascertain that, the conduct must be of the general kind the employee was hired to perform, happen during the employee's work hours, occur in the typical space of employment and be at least partially motivated by the desire to serve the employer's interests.

This case involved a situation in which a supervisor was accused of hitting or shoving an employee during an altercation. Clark v. Pangan, 16 IER Cases 259 (S. Ct. Utah 2000).

Sexual Harassment

A male supervisor contended that he was kicked in the groin by a female employee who had directed similar conduct to males, but not females, in the past.

The supervisor argued that the company was characterized by a hostile work environment that constituted sex discrimination. Although the company argued that the incident complained of was a single occasion and not severe enough to be actionable, the court viewed scenario otherwise.

If the allegations were proven to be true, the court stated that a jury could find that the assault was sufficient to constitute sexual harassment.

It was equivalent to a sexual assault, had sexual overtones and was similar in seriousness to other cases involving female victims. Jones v. United States Gypsum, No. C99-3047 (N.D. Iowa, unpublished Jan. 21, 2000).

Negligent Hiring, Supervision or Retention

If a company fails to use due care in checking out an applicant's background, is careless in supervising an employee, retains an employee it knows has displayed violent tendencies or can foresee violent outcomes from certain company actions, the company might incur liability for that individual's violent workplace acts.

The key is whether an employer has or should have had awareness of an employee's tendencies and whether or not the company failed to take appropriate action such as investigating or discharging a problem employee.

For example, a fired employee after his termination drove to another business and attacked a former co-worker. He then drove back to his former employer's place of business, shot and killed the company's vice president of finance and a customer, wounded two other employees and finally killed himself. A jury concluded that the employer was negligent and 10 percent at fault for the death of the customer. The appellate court disagreed. It noted that the company took action by discharging the employee before the criminal acts occurred. Johnson v. Christianson, No. C 1 99.666 (Minn. Ct. App., unpublished decision Feb. 2, 2000).

Workplace violence is of concern to everyone today. Surveys indicate that almost 60 percent of employees have stated concerns about such violence. Although an increasing number of companies are doing violence-related training, generally the training only is given to managers. Among the steps that companies take to reduce the possibility of workplace violence are the following: extending training to all employees; making sure hiring policies are sufficient to detect potentially violent employees; implementing zero-tolerance violence policies, as well as policies prohibiting weapons and unlawful harassment at work; establishing complaint procedures for aggrieved employees; making sure all workers can recognize signs of potential violence and are encouraged to report to appropriate company officials; instituting a hot-line (either run by the company or a third-party) for employees to report threatening behavior; having procedures in place for handling terminations or disciplinary actions that may turn violent; introducing employees to conflict resolution techniques; performing a risk assessment for workplace violence and/or having risk assessment teams; having counseling available for

Troubled employees; and evaluating the effectiveness of company security.

Jury Duty Protected in Many Instances

Despite the fact that the jury system is a cherished part of the United States judicial system, and we use the jury system more than any other country in the world, a call to jury service can be inconvenient both for employers and for employees. Many states have statutes that prohibit a company from retaliating against an employee for jury service. Also, the Jury Systern Improvements Act of 1978 forbids an employer from discharging or threatening to discharge, coercing or intimidating permanent employees called for federal jury duty Failure to abide by applicable law may result in a company facing liability, as the following case illustrates.

A billing coder for a company providing billing services for medical providers served on a state court jury for approximately a month. After her return to work, she maintained that she was treated differently by her employer. Specifically, she stated the following: she was told that she lacked a commitment to her job and that her chances for a raise were slim; she was given a new work schedule; and she was ignored and excluded from meetings that she formerly attended. After two weeks, she resigned.

In her lawsuit, she maintained she was constructively discharged because the employer deliberately created intolerable working conditions that would cause a reasonable person to resign. The motivation, she alleged, was her jury service. The company countered that she had behaved rashly and unreasonably, that she should have taken her concerns to someone in the company, and that she should have used the internal complaint mechanism available, so that the company could have taken some action.

A jury awarded the plaintiff $310,000 -- $25,000 for noneconomic injury, $35,000 for economic injury and $250,000 for punitive damages—for constructive discharge as a result of her jury service, a protected right under that state's law.

Halsbach v. Med-Data, Inc., No. 98-882-HU (D. Ore., verdict Jan. 6, 2000). The decision was upheld on appeal.

IN A NUTSHELL

(1.) The Supreme Court has declared the civil rights remedies in the Violence Against Women Act unconstitutional.

(2.) Although the VAWA may no longer be used by plaintiffs in cases involving work-related violence, other legal theories remain to address such situations.

(3.) Intentional infliction of emotional distress, battery, sexual harassment and negligent hiring, retention or supervision may be used by victims of workplace violence against supervisors and the company itself.

(4.) Companies should explore the variety of means available to minimize the possibility of workplace violence occurring.