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Workplace violence: The universe of legal issues

James B DolanDefense Counsel Journal. Chicago: Jul 2000.Vol. 67, Iss. 3;  pg. 332, 10 pgs


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9190,  6500,  8305,  4300


United States,  US


James B Dolan

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Defense Counsel Journal. Chicago: Jul 2000. Vol. 67, Iss.  3;  pg. 332, 10 pgs

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Abstract (Document Summary)

Violence in the workplace has become a hot topic for the defense community. 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 3rd party, a citation based on the Occupations 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.

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Copyright International Association of Defense Counsel Jul 2000


Employers face an array of issues and theories when trying to prevent violence in their workplaces, and they need competent counsel





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.


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


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.


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


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.


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


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


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


1. Brzonkala v. Morrison, 120 S.Ct. 1740 (2000).





2. National Census of Fatal Occupational Injuries, U.S. Dep't of Labor, Bureau of Labor Statistics, 1995.

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).

4. Hayne v. Union St. Railway, 189 Mass. 557 ( 1905).





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.





6. Violence in the Workplace: Risk Factors and Strategies, NIOSH Current Intelligence Bulletin 57 (July 1996).

7. Census of Fatal Occupational Injuries, U.S. Dept of Labor, Bureau of Labor Statistics, 1994.





8. Peters' Case, 291 N.E.2d 158 (Mass. 1972) (assault by former employee compensable).

9. Foley v. Polaroid, 413 N.E.2d 711 (Mass. 1980).






11. See, e.g., Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207 (Cal. 1993).





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.

13. Folkerson v. Circus Circus Enterprises Inc., 107 F.3d 754 (9th Cir. 1997).

14. See, e.g., Sharpe v. Peter Pan Bus Lines, 519 N.E.2d 1341 (Mass. 1988).

15. See Rosanne Lienhard, Negligent Retention of Employees: An Expanding Doctrine, 63 DEF. CouNS. J. 389 (1996).





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).

17. COLO. REV. STAT. 24-5-101.

18. Randi W. v. Livingston Union Sch. Dist., 49 Cal.Rptr.2d 471 (Cal.App. 1995).

19. 916 F.Supp. 638 (E.D. Mich. 1995).





20. The Americans with Disabilities Act and Psychiatric Disabilities, at 33.

21. Id. at 34-35.

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).

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).





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.





25. Burlington, 524 U.S. at 765.

26. Burlington, 524 at 760, 763.

27. 120 S.Ct. 1740 (2000).

28. 107 F.3d 754 (9th Cir. 1997).





29. 17 OSHC (BNA) 1337 (OSHRC 1995).

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).

31. Guidelines, supra note 30, at 2.





35. See James B. Dolan Jr., An Introduction to Employment Practices Liability Insurance, 39 FoR THE DEFENSE 20 (December 1997).




[Author Affiliation]

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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