Threatening Behavior — A Mental Health Disability? Quirky Question # 132
Quirky Question # 132:
One of our employees has been very belligerent of late. He has made comments to co-workers that were intimidating and frightening. Some of his co-workers have considered them to be threats of violence and have reported them to our HR group.
HR investigated, corroborated the accuracy of the allegations, and confronted the employee. He basically admitted making the statements, but attributes his behavior to some unspecified mental health disability. We plan to terminate his employment. Is this plan prudent?
Roy’s Analysis:
Your question is very interesting, implicating a number of fundamental aspects of the Americans With Disabilities Act (ADA) and the parallel state anti-discrimination statutes. Further, your question contains within it several issues that warrant your consideration. First, is your employee a “disabled” employee under the ADA? Second, what types of disability claims could be asserted by the employee if your company carries out its plan to terminate his employment? And third, what defenses would your company have to any such claims? Let’s examine each of those issues sequentially.
As noted above, the first question is perhaps the most fundamental – is your employee a “disabled” employee under the ADA? The ADA prohibits discrimination against a “qualified individual with a disability.” In turn, an individual has a “disability” under the ADA if one of three conditions are met: a) he has a physical or mental impairment that substantially limits one or more major life activities; b) he has a “record of” such an impairment; or c) he is “regarded as” having such an impairment.
Here, your employee might have a cognizable disability and might be able to structure his claims based on either on the assertion that he “has a mental impairment” or that he is “regarded as” having a mental impairment. Perhaps your employee is suffering from a mental or emotional disorder (e.g., severe depression or paranoia) that is affecting the way he interacts with his co-workers and is contributing to his threatening behavior. Even if your employee is not suffering from a physical or mental impairment, he nevertheless could assert that he is perceived as (or “regarded as”) someone with a disability. As you described in your question, co-workers complained that his behavior has been “belligerent,” “intimidating,” and “frightening,” and your HR group investigated the situation and corroborated the underlying facts. Arguably, then, he is regarded as an employee who has, charitably described, a “difficult personality.” Again, whether that problem is linked to a cognizable psychological problem can’t be ascertained from your question.
A corollary inquiry when evaluating whether your employee is disabled is – what “major life activity” is substantially limited by the impairment? Somewhat surprisingly, some plaintiffs have made the argument that their inability to interact appropriately with others is itself a “major life activity” under the ADA. Who knew? Other plaintiffs advance a somewhat broader concept that has gained traction in the courts, which is that the disability (be it physical or mental) affects the major life activities of “working or learning.” Regardless of the theory advanced with respect to the “major life function” involved, many courts analyzing these issues have skipped over this issue to assess other critical aspects of a disability claim.
The second basic question referenced above is what types of claims could your employee bring pursuant to the ADA. Essentially, there are three. Your employee could claim disparate treatment. He could contend that you failed to accommodate his disability. Or, depending on what he communicated and when he communicated it, he could claim retaliation. Let me touch briefly on each.
As to the disparate treatment claim, as I have stated in other Blog posts, the key to these types of claims is the concept of differential treatment. This leads to the question of whether you have had any other employees who have engaged in threatening or intimidating behavior and how your company responded in those situations. If you have addressed these kinds of situations in a consistent and balanced manner, adopting a response appropriate to the perceived risk, your company should not have to worry unduly about a disparate treatment claim. Keep in mind too that courts have emphasized that for employees to succeed on disparate treatment claims in disciplinary contexts, the other individuals against whom the comparison is being made must be comparable in “all material respects” (e.g., same type of job, same supervisor, comparable experience, comparable qualifications, same conduct, etc.). Needless to point out, these variables make it difficult for a plaintiff to pursue successfully a disparate treatment claim when it comes to an employer’s disciplinary response to unacceptable conduct.
Another common claim under the ADA is a failure to accommodate claim. It is not clear from your question whether this employee requested any type of accommodation or made any comments that put your company on notice that it needed to engage in the interactive process associated with disability claims. A separate question is whether any accommodation would even be possible, given the nature of the conduct involved here. This will depend on the nature of the job involved, the degree of interaction with co-workers and the public, and other factors bearing upon whether your company could do anything to mitigate the consequences of the intimidating behaviors.
The third type of claim is a potential retaliation claim. Here, I’ll simply reiterate my standard advice to my clients – do NOT convert a weak underlying claim of employment discrimination into a compelling retaliation claim. Time and time again, employers confronting weak and easily defensible discrimination claims take actions that are retaliatory. Then, even if the underlying discrimination claim is dismissed, the retaliation claim will likely survive.
Assuming that your employee institutes litigation and pursues a disability discrimination claim, your company should have a strong defense to the claim based on the employee’s conduct. If your company carries forward with the discharge it is planning as a result of the reasons you described above, your soon-to-be-ex-employee will have to demonstrate that these reasons are a pretext or cover-up for discrimination. This will be a tough hurdle for your former employee. Remember, to show pretext, a plaintiff “must show more than [defendant’s] decision was mistaken, ill considered or foolish, and as long as [the employer] honestly believes those reasons, pretext has not been shown.” See Hague v. Thompson Distributing Co., 436 F.3d 816, 823 (7th Cir. 2006).
Another interesting defense in the context of your question is the concept that under the ADA, an individual is not a qualified individual with a disability if he is a direct threat to himself or others. You may recall that there were a number of these kinds of cases, which arose in the early stages of the AIDS crisis. At that time, there were fewer effective medical treatments for individuals who were HIV positive and there was a high level of public anxiety about what initially was a nearly always a fatal disease. Therefore, cases involving HIV carriers worked their way through the legal system, often examining whether the job performed by the HIV infected employee created a risk for the employee himself/herself or others.
This same analytical framework has applicability to your situation, or any context where an employer is concerned by the risk of workplace violence. If your company can demonstrate (and you have the burden of persuasion on this point) that your employee poses a direct threat to himself or others, he ceases to be a qualified individual with a disability.
Yet a third compelling defense in a context like this is grounded on the distinction between a mental health disability and the behaviors linked to that disability. Think of this issue, for example, in the area of alcohol or drug dependency. Although an employer may have an obligation to accommodate an employee with alcoholism who is receiving treatment, an employer does not have to tolerate an employee who shows up at work under the influence of drugs or alcohol. Analogizing to the fact pattern you described, even assuming that: a) your employee had a cognizable mental health disability; b) that substantially impaired a major life activity; and c) requested an accommodation; your company still would not be obligated to tolerate the behavioral manifestations of his disability in the workplace.
In short, even if you discharged this employee and he sued your company for disability discrimination, it would appear that you would have several persuasive defenses. Of course, your company would not need to advance those defenses if the court concluded that your employee was not disabled under the ADA.
An interesting case that implicates many of the issues addressed above is Bodenstad v. County of Cook, et al., No.08-1450 (7th Cir. June 22, 2009). In Bodenstad, a physician/anesthesiologist at Cook County Hospital claimed that he was fired in violation of the ADA. After approximately nine years of employment with the hospital, Bodenstad was diagnosed with a cancerous lesion on his mouth. When discussing his own health and his fears about his cancer metastasizing, he told a friend that if his health deteriorated, he was going to kill his supervisor and several other physicians. His friend was sufficiently concerned about these comments that she shared them with the Chicago police and the FBI. The police felt that the threats were credible.
The hospital’s initial response was to suspend Bodenstad, with pay, pending a psychiatric evaluation. Although Bodenstad first refused to submit to an examination, he later agreed to obtain treatment at the Professional Renewal Center (PRC), where he completed a five-day multi-disciplinary assessment. The PRC assessment was that Bodenstad suffered from paranoid and narcissistic personality features and “occupational and interpersonal stressors.” Bodenstad agreed to be treated at the PRC for three additional months, at the end of which Bodenstad was directed to continue to treat with a psychiatrist, a directive he disregarded. Not long thereafter, the hospital conducted a hearing involving Bodenstad’s behavior, after which the hospital decided to terminate his employment. After being fired, Bodenstad sued.
The federal district court granted the defendants’ motion for summary judgment and the case was appealed to the Seventh Circuit. The appellate court affirmed the decision. Even assuming that “interacting with others” constituted a “major life activity” and that Bodenstad was “substantially limited” in this activity, the Court of Appeals still found that Bodenstad could not establish a viable ADA claim. Essentially, the appellate court concluded that the hospital’s reasons for discharging the physician were legitimate and that Bodenstad could not demonstrate that the reasons articulated by the defendant for its decision were pretextual. As the court emphasized, “summary judgment was . . . appropriate because Cook County presented undisputed evidence that it fired Bodenstad for threatening his co-workers.” The court also pointed out that “there is no legal obligation to ‘accommodate’ conduct, as opposed to a disability.” The appellate court noted, “The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee’s misconduct, even if the misconduct is related to a disability.”
Finally, in the area of employment law, employers often are forced to evaluate competing risks. Here, the competing risks are litigation by a belligerent, intimidating, threatening employee who is terrifying his co-workers, or litigation by a co-worker injured by that person, or worse yet, by the co-worker’s estate in the event of his or her death. Which lawsuit would your company rather defend? As I’ve stressed in other Blog posts involving risks of workplace violence, employers cannot be responsible for risks of which they were unaware, but known risks cannot be ignored. Assuming that your investigation corroborated the basic underlying facts and your best judgment is that your employee poses a risk of violence to his co-workers, I think your path is clear.
Observations About Workplace Violence, Quirky Question # 43
Quirky Question # 43:
We are a governmental agency. There recently was a highly publicized situation in which an employee at a company across town shot and killed his two supervisors and wounded several other employees before taking his own life. Yesterday, one of our more problematic employees, known to have a strained relationship with his boss, was overheard remarking with regard to the workplace violence story, “Those bastards got what they deserved.” We want to fire this guy before he acts on these kinds of thoughts here at our agency. Are there any risks?
Roy’s Analysis:
Like prior Blog questions, this inquiry illustrates the difficult balancing of two important, and sometimes conflicting, societal interests. On one hand, you have employers’ critical interests in maintaining a violence-free workplace. On the other, for public employers, there is a legitimate First Amendment right. The challenge confronted by governmental employers (and, ultimately, the courts) is how to ensure a safe workplace without chilling individuals’ free speech rights.
In a case from just over one year ago, the Second Circuit Court of Appeals determined that the public employer’s interest in maintaining a violence-free workplace was paramount. In Blackman vs. New York City Authority, (Civ. File No. 06-4714, June 21, 2007), the Court upheld the employer’s right to terminate an employee who stated that two supervisors who were killed in a workplace shooting “deserved what they got.” Assuming that the fired employee had engaged in protected speech (itself a close question), the court found that the employer’s need to protect its workers “plainly outweighed” the employee’s right to make the offending remark.
In the New York case, there was some history involving the same employee (Blackman) that presumably made the decision somewhat easier. On a prior occasion, Blackman had had a heated altercation with his supervisor, which ended when Blackman stated, “I am not leaving; I have a Transit Authority pass, a Union Card, and a .38 . . ..” Blackman was involved in the disciplinary process relating to these initial comments when the additional inflammatory remarks were made. Exacerbating the situation, the two supervisory employees who had been murdered, and about whom Blackman made his “deserved what they got” comment, worked for Blackman’s employer, the NY Transit Authority. Further, Blackman’s comment expressed the view that the two supervisory employees deserved to be shot because of their role in terminating the employment of the ex-employee who had murdered them. With these facts as the backdrop, the Court observed, “Even assuming that Blackman’s [deserved what they got comment] may have addressed matters of public concern, the opinions expressed by Blackman, when viewed in light of his earlier threat against [his supervisor], reveal him to be a person of violent disposition, who was potentially deeply disruptive of the workplace.” With this history, the court found the government’s interests in discharging Blackman to be “especially weighty.”
The facts presented in this Blog question are a bit closer than the Second Circuit case from which the question was drawn. In a context where the employee had not demonstrated any prior violent propensity (no previous threatening conduct or comments) and where the shooting to which the employee referred did not occur at his own place of employment, a public employer may have had a somewhat more difficult task persuading a court that the employee truly represented a risk of workplace violence warranting his dismissal.
In close cases, employers are in the unenviable position of trying to evaluate risks of workplace violence, assessing whether an idle or heated observation by an employee realistically reflects the employee’s propensity to act violently in the workplace. Of course, if the employer treats the comments dismissively, concluding that they truly were just idle observations or comments made in anger on which the employee will never act, and subsequent developments later prove the employer wrong, it is very easy to second-guess the employer’s judgment. In this context, there always is a risk of litigation from the decedent’s estate on the theory that the employer negligently supervised or negligently retained the employee who made the threat and later acted on it. Conversely, however, if the employer takes the precautionary step of discharging the employee who made the comment, despite the absence of any history of threatening comments or violent conduct, the employer risks litigation from the discharged employee who will contend that his termination constituted a disproportionate response and that the public employer was attempting to chill his freedom of expression.
The bottom line, however, is that workplace violence is an all-too-common component of the 21st century workplace. Incidents of workplace violence are reported far too frequently, such as the June 25, 2008, shooting at a Henderson, Kentucky plastics plant that left five workers dead. The Department of Labor has estimated that approximately ten percent of workplace deaths are attributable to workplace violence.
Given these grim statistics, every employer needs to give thought to how it will handle situations involving the risk of workplace violence. The good news is that courts have recognized that this is a serious problem and, for the most part, validate employers’ steps to minimize the risk of harm to employees, including the discharge of employees perceived to present a risk of harm to their co-workers and managers. This is true even when the discharge may result in some infringement of a public employee’s right to express him/herself in the workplace.
Quirky Question # 29, Maintaining Electronic Records
Quirky Question # 29:
Our company has offices in California. This year we want to improve our document retention practices. We’ve decided to maintain electronic records of personnel files. Can we do this in California? We were told that California law requires the records to be available at the job site. If this is true, can we switch to an electronic database in California?
[Readers: Today we post another one of our California-specific analyses. The analysis below was prepared by Mandana Massoumi and Gabrielle Wirth of our firm's Irvine, California office. Gabrielle is a 1982 graduate of the University of California, Davis, School of Law, and Mandana is a 1987 graduate of the University of San Francisco School of Law. Their resumes are available on our firm's website at www.dorsey.com.]
Mandana’s and Gabrielle’s Analysis:
The California Labor Code, § 1198.5, specifically addresses the subject of your question. Under the Labor Code, a California employer is permitted to retain personnel files electronically. That right, however, is circumscribed somewhat, to ensure that employees are permitted access to their personnel files.
In short, you can switch to an electronic database. But, you have to make sure the records can be downloaded, stored on a disk, and maintained at your California location. California Labor Code Section § 1198.5 requires employers to permit an employee to inspect his or her personnel records. Inspection pursuant to this section must be allowed at “reasonable intervals and reasonable times.” (L.C. § 1198.5(b).)
Section 1198.5( c) requires the employer do one of the following:
(1) Keep a copy of each employee’s personnel records at the place where the employee reports to work.
(2) Make the employee’s personnel records, available at the place where the employee reports to work within a reasonable period of time following an employee’s request.
(3) Permit the employee to inspect the personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee.
L.C. § 1198.5(c) (emphasis added). Therefore, § 1198.5 permits the employer to keep the original personnel records at a location other than that were the employee reports to work, so long as a copy is available at the location where the employee works and can be made available for inspection upon request.
Subject to the provision in section (2) above, the employer is not required to make personnel records available immediately upon request. The California Department of Labor Relations, Division of Labor Standards Enforcement (“DLSE”) offered some guidance in its August 27, 1998 opinion letter on how soon such personnel records should be provided to an employee for inspection. (See Wage-Hour Opinion Letter No. 1998.08.27 (1998).)That letter reiterated the employers’ obligation to make records available to an employee within a “reasonable” time. The August 27, 1998 opinion explained that while reasonable attempts at a timely response must be made, there was no per se rule and would be subject to a “case by case” evaluation. The DLSE stated as follows:
“The Division has historically taken the position that the flexibility demanded by the clear language of this statute means that reasonableness can only be determined on a case by case basis. …
Other difficulties in setting any hard and fast rule on access to an employee’s personnel file would allow, for example, an out of state employee who maintains their personnel files in an out of state location, or one who has statewide operation and employee, but maintain their personnel files at a central location, to provide access to these files within a “reasonable period of time” after a request is made to inspect them by the employee. On the other hand, it would not be unreasonable to expect fairly immediate access to an employee’s personnel file maintained at the place where the employee works as required by statute, absent compelling reasons or unusual circumstances that the employer would have the burden of establishing.
In the event your constituent is denied access to their personnel files outside of these time parameters, or altogether, he or she may file a complaint with the nearest office of the Division of Labor Standards Enforcement.” (Emphasis added.)
In sum, the regulations permit employers to keep electronic copies of the personnel files. However, employers must ensure a copy (electronic or hard copy) is maintained and retrievable (to be printed in hard copy format upon request), at the location where the employee works in California.
A separate issue is what materials you wish to include in the electronic personnel records. When maintaining electronic copies of personnel files, we recommend that you consider segregating certain types of materials to ensure that they are not inadvertently produced when the personnel file materials are made available to the employee. For example, business records, confidential data, and privileged communications should be scrutinized carefully to assess whether any of this data belongs in the personnel file. Consideration also should be given to the retention periods that govern different types of documents. While certain types of documents have mandated retention periods, other materials (e.g., emails and other routine communications) do not and may be destroyed after a reasonable period of time. One potential problem with maintaining materials electronically is that you may find yourself retaining documents that could be (and should be) disposed of. Therefore, if you elect to maintain electronic personnel files, you may want to conduct periodic file reviews to cull information that no longer needs to be retained.
Racist Ideas, Quirky Question # 16
I am both disappointed and embarrassed to report that one of our employees is an outspoken White Supremacist. His views are abhorrent to me personally, as well as to nearly all of our company’s employees, both minority and non-minority. The organization to which our employee belongs advocates violent conduct toward minorities. Given that fact, should we take any action? Can we fire this idiot? (That’s my preference but I admit he has never engaged in any violent conduct in the workplace.) If he ever engaged in any violent conduct in the workplace, as espoused by the organization to which he belongs, could the company be held liable?
I would strongly recommend against the “Do Nothing” approach. Although the risks of physical violence to members of your workforce may be extremely low, the potential consequences of violent behavior by this individual are extremely serious, especially since the company is on notice of his racist beliefs. On the other hand, I certainly understand that your company may be reluctant to discharge an employee solely because of the organization to which he belongs, no matter how unpalatable the belief system advanced by the organization.
At a minimum, however, the situation should be monitored very carefully. If the employee articulates his hateful beliefs in the workplace, discharge him. If he brings literature into the workplace advocating violence toward minorities, discharge him. If his conduct toward minorities is antagonistic or belligerent, discharge him. In all of these contexts, the company’s discharge position will be easily defended, inasmuch as the employee undoubtedly would be violating your company’s proscriptions against discriminatory conduct and would be creating a hostile and offensive working environment for your employees.
The tougher call is whether you should fire the employee in the absence of any violent conduct (and you stated that he has not exhibited any to date) and in the absence of specific conduct at the worksite that would warrant a discharge (as described above). [I wonder, however, how you know the employee is a member of the White Supremacist organization? Did he share his beliefs with his co-workers? Did he attempt to interest others in the organization? Did he exhibit behaviors in the workplace that led others to question him? If those questions are answered affirmatively, go back to the preceding paragraph for the solution.]
Even if he is not a manager and has no supervisory or hiring/firing authority, does he have to work with other employees? To the extent that the employee must interact regularly with others, if his perspectives and attitudes are well known to his co-workers, allowing him to continue working may be very disruptive. It would be difficult to establish a collegial, professional and productive working environment for a diverse workforce when one member of the group holds views deeply offensive to others. Given that fact, it may be appropriate to terminate the employee even in the absence of specific threatening conduct or workplace proselytizing.
Another reason to consider discharge is that if the company allows the employee to continue working and a tragedy ensues, the company may be at risk. This is the situation in which Lockheed Martin found itself several years ago. In the case of Tanks v. Lockheed Martin, a former Lockheed Martin employee who belonged to a racist organization that advocated violence toward minorities came to work and murdered and wounded several African American and Caucasian co-workers before killing himself. According to the Complaint, there had been numerous incidents over many years that put the company on notice of the employee’s violent proclivities and his racist beliefs, including specific threats of violence toward minority co-workers. The question presented was whether the company could be held liable for this tragic event under various common law theories. The federal District Court rejected the Lockheed Martin’s summary judgment motion, seeking dismissal of the case based on the exclusivity provisions of the Mississippi Workers’ Compensation Act. Although the District Court rejected the company’s arguments, it did certify an interlocutory appeal to the Fifth Circuit Court of Appeals. Somewhat surprisingly, the appellate court reversed, finding that the actions of the murderer fell within the exclusivity provisions of the Workers’ Compensation statute. See, Tanks v. Lockheed Martin Corp., 417 F.3d 456 (5th Cir. 2005). The resolution of the Tanks case (and other related cases) from that point forward is unclear.
Putting aside the question of whether the applicable workers’ compensation statute may provide the exclusive remedy for violent workplace conduct, the cases involving violence by one employee toward another often turn on the issue of whether the company knew or should have known of the violent propensities of the employee who caused the injuries to a co-worker, or at times, a member of the public. These types of cases implicate issues of negligent hiring, supervision and retention. These issues, however, will be addressed in future Quirky Question analyses.
In a brief, unpublished, per curiam, decision, announced just last week, the Fifth Circuit affirmed the summary judgment dismissal of the claims of all of the other plaintiffs injured by the “deranged employee who went on a violent rampage at work.” The appellate court found that the Tanks case was “factually and legally indistinguishable from the case here.” Therefore, the court held that the claims of all of the other plaintiffs were “exclusively compensable by state workers’ compensation laws.” See, Bailey, et al. vs. Lockheed Martin Corp., et al., No. 07-60399 (5th Cir. January 17, 2008). Barring further appeal, this ruling seemingly has brought the litigation to an end.
Employee Cooperation in Investigations, Quirky Question # 9
Quirky Question # 9:
Two of our employees are involved in a romantic relationship. We recently learned that our male employee assaulted our female employee at her apartment. He was charged with domestic assault based on her report and convicted.
We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers. She refused to answer our questions, claiming they invaded her privacy. We do have a policy that requires cooperation with our investigations. What options do we have? Can we fire her for refusing to assist in our investigation?
Roy’s Analysis:
Your questions implicate difficult issues that highlight the tension between the competing interests of employers to provide a safe, violence-free work environment, and employees’ legitimate privacy interests. Here, the interests of the employer predominate.
Every employer has a duty to attempt to provide a safe work environment. While all risks cannot be anticipated, known risks cannot be ignored.
Consider, for example, the potential consequences of a “do-nothing” approach. If the male employee escalated the violence towards his significant other, and committed a violent crime against her in the workplace (or anyone else who intervened, or who just happened to be an innocent bystander), it would be extremely difficult to justify the company’s lackadaisical response, particularly if the injuries suffered by your female employee or your other workers were serious. Defending a lawsuit by your other injured employees (or their families in the event of a death), would be difficult, at best.
Given this potential, it is imperative that you attempt to gather additional information from the employee involved to enable the company to assess the risk and, if necessary, take appropriate precautions. Even in the absence of a company policy requiring cooperation in company investigations, your firm would be justified in exploring these issues thoroughly with the female employee. Since your company has a specific policy requiring cooperation, your firm’s position is even stronger.
If your employee refuses to cooperate in the investigation, you could impose any discipline you deem appropriate, including discharge. I would not advocate jumping to that ultimate sanction. Rather, I would explain to her that a failure to cooperate jeopardizes her continued employment. I also would explain why the company needs to explore these issues, both from a practical and legal perspective. If she nevertheless refuses to reveal any of the information that you consider necessary to evaluate the situation accurately, you could impose a progressive disciplinary approach, starting with suspension with pay, then suspension without pay, and finally termination. But, again, you need not pursue a progressive disciplinary approach if you have concluded that discharge is the appropriate response to this situation.
The fact pattern you describe is very similar to a case decided by the United States District Court for the Northern District of Ohio in late 2005, Rowe v. Guardian Automotive Products, Inc., 2005 WL 3299766 (N.D. Ohio). In Rowe, like the situation you describe, two employees were living together. The male employee assaulted the female employee, breaking three of her ribs. The male employee was charged with assault and convicted. This information came to the company’s attention when the male employee later received a 30-day jail sentence for driving without a license. When the company explored the situation, it discovered the male employee had a lengthy criminal history involving alcohol abuse, threats to kill his ex-wife, physical acts of violence against his ex-wife, and the assault on Rowe. Based on this history of violence, the company terminated the male employee. The company also tried to obtain additional information directly from Rowe to ascertain whether the now-ex-employee posed a risk of harm to her, her co-workers, or her supervisor.
On three separate occasions, the company tried to elicit this information from Rowe and each time she refused to cooperate, arguing that the inquiries invaded her privacy. She pointed out that she was on leave when the assault occurred and that it had not occurred at work. Despite those facts, the company terminated her employment based on her refusal to cooperate with the company’s legitimate investigation. The federal District Court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment.
The bottom line is that employers have an obligation to attempt to create a safe, violence-free working environment. If an employee refuses to support that effort by refusing to participate in an investigation bearing upon this issue, the employer is justified in discharging that employee.
Readers’ Responses:
I think it’s worth highlighting that in both the question and the cited case, the Company had a policy in place that required employees to participate in the investigatory process. Therefore, the employee should understand she is being approached consistent with the normal practices of the Company. I also believe it behooves the Company to articulate to the female employee one or more reasons to pursue the investigation that may make her feel uncomfortable. For example, if there is enough evidence (as appears to be the case in both instances) to terminate the male employee without the female’s input, she might naturally feel the investigation (and her part in it) is unnecessary. Therefore, having someone from the Company articulate the Company’s concerns about retaliatory acts by the male or other potential targets at the Company might enable the female employee to understand the Company is not merely voyeuristically interested in what she may perceive as a personal matter. Finally, in the cited case, the female was given numerous opportunities to comply with the Company’s investigation. This appears to be a prudent course of action where the female employee may be initially reluctant to speak — whether it be to “protect” the male or because she does not want to “relive” a traumatic experience.
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