Employer Bulletin No. 318
May 1999

WORKPLACE VIOLENCE CALLS FOR AMENDED HARASSMENT POLICIES

Events at Littleton, Colorado, have increased awareness of the potential for violent behavior in every aspect of American life, including the workplace.  News reports from Littleton have included plans by relatives of those killed or injured to file lawsuits against parents and school officials.  The gist of these lawsuits will be that those in authority should have known of the violent tendencies of the killers and therefore should have taken preventive steps.

Alarmingly, homicide ranks among the top two leading causes of fatal occupational injury in the United States.  When violence occurs at work, employers are frequently the target of "negligent supervision" type lawsuits alleging that the company should have recognized a potential threat and should have taken preventive action.

We have given much thought to this problem, as have many of our clients.  We have helped some clients develop extensive policies for dealing with potentially violent employees; however, many clients have been reluctant to address this sensitive issue.  As with many other difficult issues, we avoid taking pro-active steps, for we do not want to acknowledge that we could ever be faced with such a problem. 

Sadly, studies have shown that in America today the number of employees exposed to workplace violence is on the rise.  What should a prudent employer do?  We believe that at a minimum every employer should have a policy and procedure in place through which employees can report potentially violent or threatening behavior so that the Company can address and attempt to avoid potential problems.  We believe that a "head in the sand" approach will lead only to increased liability.  The time has come to be pro-active.

Violent and threatening behavior is very similar to unlawful harassment based on factors such as race and sex.  Both types of conduct interfere with employees' ability to perform their jobs, and both cause employees to feel uncomfortable at work.  The legal standard applied in "negligent supervision" lawsuits of this nature is very similar to that used by the courts to evaluate harassment claims. 

After significant consideration of the trends and implications, we recommend that all employers consider, as a minimum step, amending their harassment policies to include a prohibition on violence and threats and to provide for reporting procedures with subsequent investigations and corrective action. 

A sample policy is enclosed for your review and consideration.  Should you wish to amend your policy or implement a similar policy for your company, please contact your CB&S attorney.


HARASSMENT, THREATS, AND VIOLENCE

I. PURPOSE
The purpose of this policy is to help assure a working environment where all employees can maximize productivity in their jobs by eliminating offensive or threatening conduct that might interfere with maximum productivity.  There are several types of antisocial behavior that can interfere with this goal, including:  (1) sexual harassment; (2) racial, religious and other forms of harassment; and (3) violence and threats of violence.  All of these types of behavior can distract employees from their job-related duties, and it is the policy of our Company to prohibit and eliminate these types of behavior.

II.DEFINITIONS
A. Sexual Harassment

Sexual harassment can include:

1. Physical assaults or physical conduct that is sexual in nature (touching, pinching, or brushing against another's body).

2. Unwelcome sexual advances, propositions, comments, "kidding," "teasing," or requests for sexual favors.

3. Sexual displays or publications such as calendars, cartoons, graffiti, or computer pornography.

4. Other verbal or physical conduct of a sexual nature that would interfere with an individual's work performance, or create an intimidating, hostile or offensive work environment.

5. Retaliation for complaints of harassment.

B.Racial, Religious, National Origin, Disability, or Age Harassment

These types of harassment can include:

1. Any conduct based on race, religion, national origin, disability, or age that makes an employee uncomfortable at work or which interferes with an employee's ability to perform the job.

2. Jokes which refer to race, religion, national origin, or disability or which portray age in a negative light.

3. The posting or distribution of cartoons, drawings, or any other material which adversely reflects on a person's race, religion, national origin, disability, or age.

4. The use of "slurs" or other offensive language.

5. Practical jokes, horseplay, or teasing which tends to make fun of a person's race, religion, national origin, or disability or which reflects negatively on a person's age.

6. Retaliation for complaints of harassment.

C.Violence and Threats of Violence

This type of antisocial behavior can include:

1. Any conduct which involves the offensive touching of another employee.

2. Intimidating or threatening gestures or body posture that reflects possible violence or a threat of violence.

3. Verbal threats to "get even" or "go postal" or similar statements that cause an employee to fear possible harm by another employee.

III. WHAT TO DO IF YOU EXPERIENCE HARASSMENT, THREATS OF VIOLENCE, OR VIOLENT BEHAVIOR
These types of antisocial behaviors can be blatant or they can be subtle.  Despite the definitions given above, it is sometimes difficult to recognize whether particular conduct falls within these types of antisocial behaviors.  Any employee who feels that he or she is the victim of any of these types of antisocial behaviors should report the conduct immediately.  Further, any employee who observes conduct that could be a violation of this policy should report that conduct promptly.

Reports should be made to                      or                     .  In addition, reports can be made by telephone (                       ) to                         .  While verbal reports will be accepted, in most cases an employee reporting these types of behaviors will be asked to make a written report providing as much detail as possible concerning who has engaged in the behavior, when, where, and exactly what was done or said.


IV.HOW REPORTS WILL BE HANDLED
Reports of antisocial behavior will be promptly investigated.  In most cases, the investigators will meet with the person making the report to get a complete and accurate statement concerning the nature of the problem.  The investigators usually will then meet with the accused employees and other potential witnesses.  Once the facts have been gathered, the Company will try to address and eliminate any problems through one or more of the following actions:  (1) verbal counseling sessions with those committing possible antisocial behavior; (2) group meetings or training sessions; (3) referrals to formal counseling or employee assistance programs; (4) written disciplinary action or suspension; or (5) termination of employment. 

In most cases, the employee reporting the antisocial behavior will be informed of the results of the investigation and of the remedial action taken.

While all reports of antisocial behavior will be treated as confidentially as possible, the requirement to conduct an impartial investigation means that complete confidentiality cannot be assured.


V.YOUR ROLE AND RESPONSIBILITY
First and foremost, each of us is responsible for our own conduct and should avoid the types of behaviors addressed in this policy.

Second, each of us has a responsibility to report antisocial behavior that we experience or observe.

With your help in enforcing this policy, we can make our Company a better and more productive place to work for all employees.