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Copyright
International Association of Defense Counsel Jul 2000
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[Headnote]
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Employers
face an array of issues and theories when trying to prevent violence in
their workplaces, and they need competent counsel
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INTRODUCTION
VIOLENCE
in the workplace" has become a hot topic for the defense community.
Although a recent U.S. Supreme Court decision has declared the federal
Violence Against Women Act unconstitutional,' employers still face a
significant risk of liability for unpredictable acts of workplace
violence. Why so? Violent incidents at places of employment are nothing new,
nor do they seem to be increasing.' However, occasional spectacular
events receive widespread publicity. Claims are increasing because of
news media attention to these incidents. Changes in the United States
legal system are another explanation for this increase.
Not
long ago, even the most serious incident would result in no more than a
workers' compensation claim by the injured employee and a criminal
prosecution against the perpetrator. Other efforts to subject the
employer to liability ran afoul of restrictive common law agency rules
governing vicarious liability for intentional acts committed by
employees.3 Ordinarily the rule of Section 219 of the Restatement
(Second) of Agency was followed, and liability attached only if the
employee was acting "within the scope" of employment.
Employees
who perpetrate serious violent acts rarely are acting on behalf of their
employers. In the picturesque language of older case law, they are
"off on a frolic of their own." A few exceptions were applied,
mostly to common carriers, where the violent act could be characterized
as a breach of contract, as, for instance, in a 1905 Massachusetts case
in which a street railway passenger was able to recover for injuries
received when a dead chicken was hurled at a trolley car by a railway
employee.4
However,
courts have been moving away from "scope of the employment" as
the touchstone for employer responsibility for employee intentional
wrongdoing. Traditional agency concepts are now being interpreted much
more liberally. One current trend, reflected most notably in two recent
U.S. Supreme Court cases, is toward imposing liability when an employee
was "aided in accomplishing the tort by the existence of the agency
relation."4 This analysis may apply to unauthorized acts performed
for purely personal gratification, whenever the agency relationship made
it easier for an employee to commit an intention tort. Other cases find
ratification of misconduct where an employer fails to stop it.5
The
current trend is toward imposing a greater duty on employers to provide
safety in the workplace by protecting employees and others against
violent acts. Defense counsel who represent employers must consider
possibilities such as a premises liability claim by a third party, a
citation based on the Occupational Health and Safety Act, an employment
discrimination claim, or even a criminal prosecution against the
employer. Lawyers who are employers themselves should realize that their
firms could be adversely impacted by litigation arising from incidents in
their own offices. Few have done so.
DEFINITION
Defining
"workplace violence" has generated considerable discussion.
Some would include in the definition any language or actions that make
one person uncomfortable in the workplace. Others would include threats
and harassment. All would include any bodily injury inflicted by one
person on another. Thus, the spectrum of workplace violence ranges from
offensive language to homicide, and a reasonable working definition is:
violent acts, including physical assaults and threats of assault,
directed toward persons at work or on duty.6
State
and federal agencies concerned with workplace violence often categorize
incidents into three types:
Type
I: Offenses by strangers;
Type
II: Offenses by customers, clients or consumers of the services offered
by the employer; and
Type
III: Offenses by current or former employees and their acquaintances.
Statistically,
the overwhelming majority of serious incidents are of the Type I variety.
In the most typical event, the perpetrator is a stranger, usually an
armed robber, who kills a convenience store cashier. "Disgruntled
postal worker" and domestic stalker incidents get heavy coverage by
print and electronic mass media. This creates the false impression that they
are prevalent. In fact, they are not statistically frequent. The classic
instance of workplace violence is probably a fight between a chef and a
salad man in some restaurant kitchen with no significant injuries to
anyone.
"Personal
acquaintances"-husbands, former husbands, boy friends, former boy
friends, other relatives-account for only 4 percent of workplace
homicides. About one thousand workplace homicides occurred in the United
States in 1994. Coworkers and former co-workers accounted for only 5 percent.7
This means that there were about 40 incidents in which domestic violence
was involved and about 50 in which co-workers or former co-workers
participated. If all U.S. states had equal population and crime rates
(which they definitely don't!), one could expect one or two such
incidents in a state in a typical year.
News
media reporting creates a liability problem for employers. The resulting
mindset treats this type of event as likely. This attitude will result in
unfair imposition of liability on employers. The defense bar should be
hesitant to buy into the idea that any epidemic of workplace violence
necessitates extraordinary protective measures by most employers.
The
types of issues that employers' counsel might face now or in the future
when they defend or advise their clients fall in several separate
categories:
*
Worker's compensation
*
Premises liability and other negligence claims
*
Employment discrimination * OSHA citations and fines
*
Criminal prosecutions
WORKERS'
COMPENSATION
Probably
all American jurisdictions would recognize the compensability of personal
injuries sustained by employees who are assaulted in the workplace.8 Do
employees have some form of civil action against their employers in
addition to their right to receive workers compensation? In general,
exclusive remedy provisions bar negligence claims for personal injuries.
However, claims for something other than negligence or seeking damages
for something other than personal injuries might not be barred.
Jurisdictions may vary considerably in what additional claims are
allowed. Discrimination claims, for instance, usually are not precluded
by the exclusive remedy provisions of workers' compensation acts.9
An
important question raised by OSHA's recent interest in workplace violence
is this: If an employer violates an OSHA directive concerning employee
safety, does this deprive the employer of the protection of the exclusive
remedy provision? The answer depends on the wording and judicial
interpretation of each state's statute. In most states, an employer is
exposed only to an increase in the rate of workers' compensation as a
penalty for the violation.10 A few jurisdictions, however, allow the
employee the option of a negligence suit, if the injury is caused by
"willful misconduct" of the employer. Sometimes, a knowing or
intentional failure to abide by safety regulations has been characterized
as "willful misconduct."
Premises
liability claims, described below, probably will be barred by the
exclusive remedy doctrine, but employment-related discrimination claims
probably will not be barred.
PREMISES
LIABILITY AND NEGLIGENCE CLAIMS BY THIRD PARTIES
A.
Negligent Security
Workplace
violence has the potential of injuring non-employees, especially if a
business is open to the public. Of course, the exclusive remedy
provisions of workers' compensation statutes never bar third party
negligence claims.
The
traditional standard of care towards persons lawfully on premises is
stated in Section 344 of the Restatement (Second) of Torts (1965),
comment f:
Duty
to Police Premises. Since the possessor is not an insurer of the
visitor's safety, he is ordinarily under no duty to exercise any care
until he knows or has reason to know that the acts of the third person
are occurring, or are about to occur. He may, however, know or have
reason to know, from past experience, that there is a likelihood of
conduct on the part of third persons in general which is likely to
endanger the safety of the visitor, even though he has no reason to expect
it on the part of any particular individual. If the place or character of
his business, or his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of third persons,
either generally or at some particular time, he may be under a duty to
provide a reasonably sufficient number of servants to afford a reasonable
protection.
Essentially,
the Restatement imposes liability for negligent failure to prevent
foreseeable acts by third parties. But what is "foreseeable"?
Most American jurisdictions follow either a similar events test or a
totality of the circumstances test. The totality approach is less
restrictive. It might pen-nit the claimant to rely on events outside the
premises and even on the general crime rate in the neighborhood. But even
a totality state may in fact require prior similar acts.11
How
do these rules apply to a negligent security claim by a third party
injured in a serious incident of workplace violence?
The
ordinary "disgruntled postal worker" type of claim would be
easy to defend in theory, at least in a similar prior acts jurisdiction.
Such incidents are so statistically infrequent that it seems most
unlikely that a prior massacre would have transpired on the same
premises. A totality jurisdiction would pose more of a challenge to the
defendant, but the extraordinary nature of the event weighs against
foreseeability even there. This assumes that a motion for summary
judgment is allowed. Any case involving horrifying events is dangerous to
try to a jury.
Exposure
to a negligence claim for an event involving domestic violence of the
"stalker" variety would seem to depend heavily on who is the
victim. Stalkers and other perpetrators of domestic violence frequently
communicate threats to their prospective victims. Unless the victim is an
employee, it seems unlikely that the employer would have any knowledge of
such threats. If the victim is an employee, she may well have advised the
employer of the threats. Conceivably, the perpetrator may have visited
the workplace previously and behaved in a way that would put the employer
on notice of the risk.12
It
would seem to be easier in this type of claim to prove that the employer
was aware of the risk of injury and failed to act. However, the workers'
compensation defense is usually successful as to employees' negligence
claims. But the defense might not be successful as to sex discrimination
claims premised on a failure to protect employees against injury by third
parties.13
As
to business visitors, it seems very unlikely that the employer would have
any knowledge of their domestic problems. Without such knowledge, a
foreseeable need to protect visitors against injury by stalkers is
unlikely. Of course, such a claim could always be asserted on the theory
that the general crime rate in the area was high and therefore required
unusual safety measures.14
B.
Negligent Hiring, Retention and Supervision
As
indicated above, the principal ob stacle to subjecting employers to
liability for violent acts by their employees has been found in agency
law. The older case law consistently refused to find employers
vicariously liable for intentional torts committed by their employees
unless their acts were within the "scope of the employment,"
and violent acts rarely are.
The
practical significance of negligent hiring, supervision and retention
claims is that they evade these common law restrictions by seeking to
impose direct, as opposed to vicarious, liability on employers. Basic
rules are found in Section 213 of the Restatement (Second) of Agency:
A
person conducting an activity through servants or other agents is subject
to liability for harm resulting from his conduct if he is negligent or
reckless:
(a)
in giving improper or ambiguous orders or in failing to make proper
regulations;
(b)
in the employment of improper per
sons
or instrumentalities in work involving risk of harm to others; or
(c)
in the supervision of the activity. Some recent cases have employed these
traditional principles of agency to impose liability on employers for
incidents of workplace violence.15
Background
checks are a useful way of keeping violent people off the payroll. The
potential for racial discrimination and other claims by job applicants
dictates that such inquiries be conducted in strict compliance with state
and federal laws and regulations. 16 Amazingly, a few states even
prohibit refusing to hire convicted felons!"
C.
Failure to Warn
Another
type of negligence claim is failure to warn about known criminal
propensities of former employees. This lacks the dramatic headline
potential of the massacre type of incident, but it might be of more
frequent occurrence and practical significance.
A
much-discussed case involves a California school district's letter of
recommendation for an educational administrator. The man had been accused
of molesting several students. A letter of recommendation gave a
favorable impression and didn't mention the allegations. The district was
sued later by a sexually assaulted student at the administrator's new
place of employment.18
EMPLOYMENT
DISCRIMINATION LAWS
A.
Handicap Discrimination
Ideally,
the most effective way to reduce the risk of assaults by employees is not
to hire persons who are prone to violence in the first place. Failing in
that, the employment of potential perpetrators should be terminated once
their dangerous propensities are discovered by management.
Such
terminations avoid one risk by incurring another and can lead to a
classic game of "Pick Your Plaintiff!" The potential perpetrator
can sue the employer, claiming a mental illness and thus that he is a
victim of handicap discrimination. One reported case, Collings v. Blue
Cross Blue Shield,19 illustrates this hazard. The employee made remarks
such as, "I hate the bitch. She is living on borrowed time and she
doesn't know it. I have killed her a thousand times in my mind."
This threatening behavior would clearly fit within most definitions of
workplace violence. Yet the court found that the terminated employee's
depression constituted a disability under the Americans with Disabilities
Act and awarded not only damages but reinstatement. In so doing, it
relied heavily on the opinion of an examining psychiatrist who testified
that the employee was not homicidal.
The
U.S. Equal Employment Opportunity Commission in 1997 issued an
"Enforcement Guidance" on the subject of The Americans with
Disabilities Act and Psychiatric Disabilities. While this document has
been criticized as ambiguous and incomplete, it does provide some concrete
information on the commission's attitude toward workplace violence:
Under
the ADA, an employer may lawfully exclude an individual from employment
for safety reasons only if the employer can show that employment of the
individual would pose a "direct threat." Employers must apply
the "direct threat" standard uniformly and may not use safety
concerns to justify exclusion of persons with disabilities when persons
without disabilities would not be excluded in similar circumstances.
The
EEOC's ADA regulations explain that "direct threat" means
"a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by
reasonable accommodation." A "significant" risk is a high,
and not just a slightly increased, risk. The determination that an
individual poses a "direct threat" must be based on an
individualized assessment of the individual's present ability to safely
perform the functions of the job, considering a reasonable medical
judgment relying on the most current medical knowledge and/or the best
available objective evidence." With respect to the employment of
individuals with psychiatric disabilities, the employer must identify the
specific behavior that would pose a direct threat." An individual does
not pose a "direct threat" simply by virtue of having a history
of psychiatric disability or being treated for a psychiatric
disability.20
The
"Enforcement Guidance" goes on to consider this example of
threatened workplace violence:
Example:
An individual applies for a position with Employer X. When Employer X
checks his employment background, she learns that he was terminated two
weeks ago by Employer Y, after he told a co-worker that he would get a
gun and "get his supervisor if he tries anything again." Employer
X also learns that these statements followed three months of escalating
incidents in which this individual had had several altercations in the
workplace, including one in which he had to be restrained from fighting
with a co-worker. He then revealed his disability to Employer Y. After
being given time off for medical treatment, he continued to have trouble
controlling his temper and was seen punching the wall outside his
supervisor's office. Finally, he made the threat against the supervisor
and was terminated. Employer X learns that, since then, he has not
received any further medical treatment. Employer X does not hire him,
stating that this history indicates that he poses a direct threat.
This
individual poses a direct threat as a result of his disability because
his recent overt acts and statements (including an attempted fight with a
co-worker, punching the wall, and making a threatening statement about
the supervisor) support the conclusion that he poses a "significant
risk of substantial harm." Furthermore, his prior treatment had no
effect on his behavior, he had received no subsequent treatment, and only
two weeks had elapsed since his termination, all supporting a finding of
direct threat.21
Thus,
the "Enforcement Guidelines" clearly recognize the need for
employers to exclude certain people from the workplace. Few recent
decisions have been willing to support an ADA claim based on employee
misconduct.22
Cases
like Collings, it can be hoped, will represent an aberration. Still, the
"Enforcement Guidelines" serve as a warning that mentally ill
employees cannot be terminated unless their behavior is a significant
problem.
B.
Sexual Discrimination
The
federal Violence Against Women Act, 42 U.S.C.sec 13981, was enacted by
Congress in 1994. Its civil remedy provision immediately attracted the
rapt attention of the plaintiffs' bar. (Unlike many discrimination
statutes, the act does not require exhaustion of administrative remedies
and has a relatively long four-year statute of limitations.) However, the
act does require plaintiffs to prove a violent felony and gender-based
motivation. These requirements proved too much for at least some
claimants.23
Of
course, plaintiffs' attorneys have a negligible interest in suing actual
perpetrators of workplace violence. Few of those defendants could pay a
substantial judgement. As always, the issue is how to hold a monied
corporation strictly liable for employees' wrongdoing on some agency
theory. The extent of vicarious employer liability under the Violence Against
Women Act was hotly disputed.
Some
argument focused on the fact that unlike Title VII of the Civil Rights
Act of 1964, the Violence Against Women Act does not specifically impose
liability for the acts of "agents." However, since the
statutory language did not preclude such liability, it probably would
exist when plaintiffs met applicable requirements of agency law.
But
what did agency law require? As noted, the traditional analysis requires
proof of a purpose, however misguided, to serve the interests of the
employer. Since gender-motivated felonious violence would rarely or never
have such a purpose, the classic approach would always or almost always
result in non-liability. But in two recent Title VII cases, the U.S.
Supreme Court abandoned the scope of employment test for an "aided
by the existence of the agency" test.24
These
cases considered whether employers were liable for sexual harassment by
supervisors in the absence of any fault on their part. Both cases
concluded that vicarious liability was appropriate. Where the supervisor
has taken some "tangible employment action," such as
discharging the employee, there is no defense to vicarious liability, the
Court ruled. However, when there has been proof of an actionable hostile
environment without such action, employers have an affirmative defense.
To succeed, they must prove that they took reasonable steps to prevent
workplace harassment and that the injured employee failed to take
advantage of such opportunities as were offered by the employer to
prevent the harm.25
The
Supreme Court refused to state a "definitive explanation" of
the scope of liability that an aiding test would provide. Writing for the
majority, Justice Kennedy noted that this was "a developing feature
of agency law" and that more precision as to its requirements would
have to await later cases. However, he did intimate that there should be
some limitations, since "in a sense, most workplace tortfeasors are
aided . . . by the existence of the agency relation; proximity and regular
contact may afford a pool of potential victims." His opinion points
out that the standard thus "requires the existence of something more
than the relation itself," intimating that wrongdoing by
non-supervising coworkers who were not aided by their authority would be
subject to a "knew or should have known" or negligence tests.26
Applying
these tests to the Violence Against Women Act suggested that employers
might be held strictly liable for supervisor violence but would receive
the benefit of a negligence standard as to coworker violence. This
analysis became obsolete in May 2000 when the U.S. Supreme Court, by a
5-4 vote, held the Violence Against Women Act unconstitutional in
Brzonkala v. Morrison.27
While
this decision obviously is helpful to employers, it unfortunately does
not end the risk that sexual discrimination statutes will be used as a
basis for employer liability for incidents of workplace violence. This is
so for at least two reasons. First, there are still plenty of state and
federal statutes that could be used as a basis for such claims. Title VII
is an obvious example. Second, the rationale for declaring the act
unconstitutional was essentially that Congress did not have power under
the commerce clause to legislate about "gender-motivated crimes of
violence" because no "economic activity" was involved. If
Congress reacts to Brzonkala by passing a statute that applies only to
workplace violence, that statute probably would be constitutional.
One
of the most potentially influential employment discrimination cases was
decided in 1997 by the Ninth Circuit, Folkerson v. Circus Circus
Enterprises Inc.28 The facts are picturesque. The claimant was hired to
perform as a mime at a Las Vegas casino. Her act involved wearing a
costume that made her appear to be a lifesized mechanical toy. Customers
often become curious about whether she was a human being or a machine.
They sometimes touched her to learn the truth. She was fired after she
reacted to one such incident by assaulting a man who felt her shoulder.
The
defense to her claim was that the casino was not liable for sexual
discrimination because of improper acts by its customers. The Ninth
Circuit rejected this position, concluding that there could be liability
under Title VII of the Civil Rights Act for failing to protect her
against workplace sexual harassment by third parties. However, the
employer prevailed in the end because of evidence that it made sufficient
efforts to prevent the offensive touching of performers by customers.
This
case has significant implications for workplace violence claims by
employee victims. By concluding that there is a duty to prevent assaults
by third parties, the court really allowed the employee to recharacterize
a negligence-based premises liability case as an employment
discrimination case. At least as to female employees, this offers a
chance to evade the exclusive remedy provisions of workers' compensation
acts.
OSHA
CITATIONS AND FINES
The
Occupational Safety and Health Act of 1970 contains a "general
duty" clause (29 U.S.C.sec 654 (a)(1)) requiring employers to
"furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees."
While
in its origin the act was directed towards accidental injury, this has
not stopped OSHA from citing employers for failure to protect employees
from intentional injury by third parties. In Secretary of Labor v.
Megawest Financial Inc.,29 the agency cited a property management company
for failure to protect its employees against assaults by tenants in
managed buildings. An agency review commission judge vacated the
citation, but this did not end the issue. The judge's reasoning
emphasized the failure of OSHA to provide standards specifying what
employers were supposed to do to prevent criminal acts by others.
The
agency replied by promulgating guidelines and recommendations for several
types of employers with high violence rates-hospitals, convenience stores
and taxicab companies." The agency stated:
These
are not regulations but only recommendations. They start with the idea
that employers should adopt a "violence prevention program including
five components: (1) management commitment and employee involvement; (2)
work site analysis; (3) hazard prevention and control; (4) safety and
health training; and (5) evaluation. [Employers should consider that] A
written program for job safety and security, incorporated into the
organizations overall safety and health program, offers an effective
approach for larger organizations. In smaller establishments, the program
need not be written or heavily documented to be satisfactory. What is
needed are clear goals and objectives to prevent workplace violence
suitable for the size and complexity of the workplace operation and
adaptable to specific situations in each establishment. 31
The
OSHA documents offer some highly practical suggestions. For example, as
to night retail establishments, the agency suggests consideration of the
following measures:
*
Improve visibility by providing adequate lighting and installing mirrors;
keep signs and shelves low.
*
Install drop safes and signs that indicate little cash is kept on hand.
*
Maintain video surveillance.
*
Provide silent and personal alarms.
*
Establish emergency procedures, including communications systems,
training and education.
*
Restrict customer access by reducing store hours and closing portions of
the store.
*
Take precautions when going to remote, isolated areas, such as garbage
sites and outdoor freezers.
*
Lock doors not in use.
*
Increase staffing during high-rise periods.
*
Install bullet-resistant enclosures.
In
May 2000, OSHA issued a press release describing its fact sheet
recommendations for protective measures to help prevent violence against
taxi drivers. Again, the focus was on practical measures.32
CRIMINAL
PROSECUTION
There
are federal criminal penalties under 29 U.S.C. sec666 (e) for violating
OSHA regulations. An employer can be imprisoned for up to six months, or
fined up to $10,000, or both when: "( 1 ) the employer violates any
regulations prescribed pursuant to OSHA, or if the employer violates any
standard, rule or order promulgated pursuant to 29 U.S.C.sec 655; (2) the
violation is willful; and (3) the violation causes an employee's
death." Repeat offenders can be imprisoned up to one year or fined
up to $20,000, or both.
However,
there is no federal criminal penalty for violating OSHA's "general
duty" clause. Therefore, federal criminal prosecution of an employer
because of an incident of workplace violence seems unlikely at present.
The
serious hazard for employers may be the potential for some form of state
court prosecution. There appear to be no cases in which a state prosecuted
an employer for failure to prevent third party violence. However, given
the widespread media attention to the problem, such a prosecution might
be a substantial possibility, at least in states noted for anti-business
politics.
States
often have prosecuted employers for assault, manslaughter, criminally
negligent homicide, etc. for conduct that could also be considered in
violation of OSHA regulations.33 Some employers have contended that OSHA
pre-empts state criminal prosecution, but this argument has been almost
uniformly rejected.34
CONCLUSION
This
is only an introductory survey of litigation that can result because of
violence in the workplace. While it is far from comprehensive, it does
show the increasing number of theories available for imposing liability
on employers because of these incidents. While the extent of the
workplace violence problem has been exaggerated, it is nevertheless real.
Avoidance of these incidents and minimizing resulting exposure to
litigation are legitimate subjects for concern. An ability to demonstrate
management involvement in planning and implementing specific measures to
reduce the risk of violence is the best defense to most of these possible
claims.
Counsel
who advise or defend employers should be familiar with the literature
mentioned in this article. A review of the guides and regulations is a
good way to start learning about the new responsibilities being imposed
on employers.
Compliance
with administrative regulations offers some degree of protection against
litigation, but certainly not immunity. Perhaps the best advice about
workplace violence any counsel can give any employer is to be sure that
the employer's liability insurance coverage is adequate. Businesses
usually have coverage for most of the possible claims described above but
have to purchase an additional policy to insure against claims for
employment discrimination.35
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[Footnote]
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1.
Brzonkala v. Morrison, 120 S.Ct. 1740 (2000).
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[Footnote]
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2.
National Census of Fatal Occupational Injuries, U.S. Dep't of Labor,
Bureau of Labor Statistics, 1995.
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3.
Allen v. Nat'l Peanut Co., 75 N.E.2d 240 (Mass. 1947) (employer not
liable for employee's rape of fellow employee in store). Accord City of
Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir. 1965).
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4.
Hayne v. Union St. Railway, 189 Mass. 557 ( 1905).
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[Footnote]
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5.
See Burlington Indus. v. Ellerth, 524 U.S. 742 ( 1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998), both of which apply the rule
of Section 219(2)(d) of the Restatement (Second) of Agency.
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[Footnote]
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6.
Violence in the Workplace: Risk Factors and Strategies, NIOSH Current
Intelligence Bulletin 57 (July 1996).
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7.
Census of Fatal Occupational Injuries, U.S. Dept of Labor, Bureau of
Labor Statistics, 1994.
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[Footnote]
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8.
Peters' Case, 291 N.E.2d 158 (Mass. 1972) (assault by former employee
compensable).
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9.
Foley v. Polaroid, 413 N.E.2d 711 (Mass. 1980).
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[Footnote]
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10.
LAWSON'S WORKERS' COMPENSATION LAW 69.00.
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11.
See, e.g., Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207 (Cal.
1993).
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[Footnote]
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12.
Former FBI agent John E. Douglas gives a chilling account of one such
episode of workplace violence in his 1998 book Obsession, pages 239-51.
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13.
Folkerson v. Circus Circus Enterprises Inc., 107 F.3d 754 (9th Cir.
1997).
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14.
See, e.g., Sharpe v. Peter Pan Bus Lines, 519 N.E.2d 1341 (Mass. 1988).
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15.
See Rosanne Lienhard, Negligent Retention of Employees: An Expanding
Doctrine, 63 DEF. CouNS. J. 389 (1996).
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[Footnote]
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16.
M. Clark Spoden & A. Michael Rosen, Background Checks and Negligent
Hiring: A Health Car Industry Hazard, FoR THE DEFENSE 26 (August 1998).
Somewhat related problems are raised by testing employees for the use
of unlawful drugs. J. Conroy, Workplace Drug Testing in Massachusetts,
Mass. LAw REV. 105 (Winter 1998).
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17.
COLO. REV. STAT. 24-5-101.
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18.
Randi W. v. Livingston Union Sch. Dist., 49 Cal.Rptr.2d 471 (Cal.App.
1995).
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19.
916 F.Supp. 638 (E.D. Mich. 1995).
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[Footnote]
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20.
The Americans with Disabilities Act and Psychiatric Disabilities, at
33.
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21.
Id. at 34-35.
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22.
See Palmer v. Circuit Court of Cook County, 117 F.3d 351 (?th Cir.
1997) (upholding firing of depressed, paranoid employee who threatened
to kill her supervisor); No Sudden Impact: Courts Rejecting Mental
Disability Claims Despite EEOC Guidelines Intended to Protect Mentally
Ill, ABA J. 24 (November 1997).
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23.
See Braden v. Piggly Wiggly, 1998 WL 230027 (M.D. Ala.) (general
allegation of sexual assault not sufficient where no specific felony
pleaded); Crisonino v. N.Y.S. Hous. Auth., 985 F.Supp. 385 (S.D. N.Y.
1997) (allegation that defendant called plaintiff "dumb
bitch" before attacking her sufficient to show gender bias).
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[Footnote]
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24.
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998), both of which apply the rule of
Section 219(2)(d) of the Restatement (Second) of Agency.
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[Footnote]
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25.
Burlington, 524 U.S. at 765.
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26.
Burlington, 524 at 760, 763.
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27.
120 S.Ct. 1740 (2000).
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28.
107 F.3d 754 (9th Cir. 1997).
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[Footnote]
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29.
17 OSHC (BNA) 1337 (OSHRC 1995).
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30.
Guidelines for Preventing Workplace Violence for Health Care and Social
Service Workers and Guidelines for Workplace Violence Prevention Programs
for Night Retail Establishments. These standards are analyzed in R.
Sampson & J. Topazian in, Violence in the Workplace, 38 FOR THE
DEFENSE 20 (December 1996).
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31.
Guidelines, supra note 30, at 2.
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[Footnote]
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35.
See James B. Dolan Jr., An Introduction to Employment Practices
Liability Insurance, 39 FoR THE DEFENSE 20 (December 1997).
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|
[Author
Affiliation]
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IADC
member James B. Dolan is a founding partner of the Boston firm of
Badger, Dolan, Parker & Cohen, where he has been active in most
types of civil litigation. He has degrees from Boston College (A.B.
1966) and Cornell Law School (J.D. 1969).
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