Workplace violence is considered a hazard subject to occupational health and safety regulation either expressly or directly via application of the so called “general duty” clause in OSHA and OHS statutes. But the failure to protect employees against violence in the workplace can also lead to liability under other laws. Let’s look at five of them.

1. Negligence

Under tort law, every person has a duty to use reasonable care to protect against foreseeable risks. Failing to prevent an incident of workplace violence could lead to negligence liability to the extent that the employer saw or should have seen the incident coming. Trial lawyers use two main negligent theories to hold employers responsible for workplace violence:

a. Negligent Hiring: If the person who engages in violent behavior had a record of attacks, the employer may be held liable for hiring him in the first place. Example: A rental car employee rapes a co-worker. The rental car company hadn’t checked his background before hiring him. If it had, it would have discovered that the man had served three years in prison for an armed robbery conviction. The jury found the company guilty of negligence and awarded the victim $750,000.

b. Negligent Retention: If the attacker has engaged in previous incidents of violence with co-workers or customers, keeping him on the payroll may lead to negligence liability for subsequent attacks. Example: A railroad worker shoots his supervisor in the kneecap after being reprimanded for eating during his shift. The worker had made threats against other co-workers but hadn’t been disciplined. The supervisor sued the company for negligently retaining the employee and won $3.5 million [Smith v. Amtrak, 865 F.2d 467 (2d Cir. 1987)].

2. Vicarious Liability

A worker who engages in workplace violence might be considered an agent of the employer for whom the employer is legally responsible. This is called vicarious liability, or to use the legal term, respondeat superior.

3. Breach of Contract

In Canada, some courts have held that employers have an implied contract to treat workers with respect and dignity so they can do their job. A victim of workplace violence might be able to claim that an employer violated this contractual duty.

4. Discrimination

The U.S. and Canada protect employees against discrimination in the terms and conditions of employment on the basis of race, ethnicity, gender, religion, disability, family status and national origin. Canada and a few U.S. states also ban sexual preference discrimination. If victims of violence are members of a minority protected by the EEOC/human rights laws, they might be able to claim that the employer’s failure to protect them against violence was illegal discrimination. Example: If an employee is subjected to threats or attacked because he’s Muslim, he could argue that the employer’s failure to protect him was discrimination.

5. Infliction of Mental Distress

U.S. and Canadian employers are under a duty to safeguard employees against not only physical but psychological violence. Thus, harassment and intimidation can be the basis of liability even if nobody actually touches the victim. If the complained-of conduct is “outrageous”, the victim can sue the employers for intentional infliction of mental distress. Example: For three and a half years, a Canadian supervisor, a large man with a loud voice, bullies a smallish employee he knows to be mentally frail. He spews insults and threats like “I’ll bash your head in,” occasionally brandishing a hammer for effect. The employee has a mental collapse and sues the company for infliction of mental distress. She wins $35,000 [R. v. Boothman, [1993] 3 F.C. 381 (Fed. T.D.).

Conclusion

Next Monday is Presidents’ Day. We’ll resume our discussion in two weeks by looking at efforts to combat violence in the workplace and the practical shortcomings of a zero tolerance policy.

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