Wednesday, March 23, 2011

The Potentially Violent Employee: Employer's Legal Duty

I worked as a paralegal at the law firm of Akin, Gump, Strauss, Hauer & Feld from March 3, 1988 to October 29, 1991.  In late October 1991, I lodged a harassment complaint against my supervisor and coworkers.   As part of its investigation into my complaint Akin Gump consulted a psychiatrist who had not examined me personally.  The psychiatrist reportedly advised the employer that my harassment complaint was a symptom of the "disorder" ideas of reference, which caused me to attach a negative meaning to trivial events.  The psychiatrist further reportedly advised the employer I was potentially violent.  My supervisor and some coworkers told Akin Gump's managers that my behavior was frightening, disruptive and bizarre, or so Akin Gump claimed.  The employer terminated my employment on the grounds that my mental illness rendered me a tort risk to the firm.  The Americans With Disabilities Act (ADA) had not yet become law as of the date of my job termination.

Would Akin Gump's investigation and resulting violence risk assessment -- and the firm's ultimate decision to terminate -- pass muster under the ADA as currently interpreted?  Probably not.

The ADA contains a specific exception for employees with mental disabilities who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that 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 essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:
  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.
Employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:
  1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.
  2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.
  3. Some employers are opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.
  4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create an artificial cooling-off period and help limit the risk that the employee returns to do harm.
  5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.
-- In my case, Akin Gump did not base its violence risk assessment on the best available professional guidance.  The firm should have had me examined personally by a psychiatrist or other mental health professional competent to make a violence risk assessment.  The mental health professional should have been asked to write up a formal report.

-- The firm should have obtained written statements from firm personnel documenting with specificity the facts of any threatening, intimidating or violent behavior I had engaged in.

-- The firm should have terminated me at the end of the work day, not at noon.

-- The firm should not have allowed me to go home to get a suitcase so I could transport my belongings from the firm's premises.

-- Perhaps the firm should have contacted the police.

-- Perhaps the firm should have arranged for a security escort to accompany me home.

-- Perhaps the firm should have spoken to my sister

-- When I filed for unemployment benefits in November 1991, the unemployment office required certain documentation about my employment -- documentation in the custody of the firm's Personnel Director, Laurel Digweed.  I telephoned Laurel Digweed about the matter and she requested that I stop by her office (in about mid-November 1991) to get the documentation I needed.  Laurel Digweed, who was one of the three decisionmakers who approved my job termination based on a concern I might become violent allowed me to return to the firm's premises for the limited purpose of retrieving required documentation.  Perhaps Laurel Digweed should have mailed me the documentation, obviating my need to visit the firm a few weeks after my termination.

(Interestingly, I specifically recall my visit to the firm in about mid-November 1991 to see Laurel Digweed because I had an idea of reference during my meeting with her. She needed to sign something and looked for a pen.  She said: "I can't find a black pen.  I want to sign this with a black pen."  I thought her statement could be interpreted as a reference to racism, a possible attempt to prompt me to complain about racism or antisemitism at the firm.  What's interesting is that at that point in time I did not know that my supervisor had been accused of racism.  I only learned that in 1993 when a black coworker, Pat McNeil, telephoned me in March or April 1993 in connection with her Title VII lawsuit against Akn Gump.)


Gary Freedman said...

The U.S. Marshal has determined that I pose a direct threat to a federal judge and that judge's family. The USMS has imposed continuing and indefinite protective measures.

The action of the USMS is probative of my lack of employability under the ADA. I pose an indefinite immediate threat according to the USMS.

Gary Freedman said...

When milking the cow it's always useful to have the assistance of Farmer Brown! The USMS is my Farmer Brown.