Workplace Violence and The Facility Manager

Workplace Violence and
The Facility Manager

Workplace Violence and
The Facility Manager
by Joseph F. Gustin
Library of Congress Cataloging-in-Publication Data
Gustin, Joseph F., 1947-

Workplace violence and the facility manager / by Joseph F. Gustin.
pages cm.
Includes bibliographical references and index.
ISBN 0-88173-532-9 (alk. paper) -- ISBN 0-88173-533-7 -- ISBN 978-0-8493-8143-0
(taylor & francis distribution : alk. paper) 1. Violence in the workplace. 2. Facility
management. 3. Plant engineering. 4. Industrial safety. I. Title.
HF5549.5.E43G87 2013
658.4’73--dc23
2013001284

Workplace Violence and the Facility Manager/by Joseph F. Gustin.
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Table of Contents
Chapter 1—Violence in the Workplace..........................................................1
Crime in the Workplace: An Overview................................................1
Occupations at Risk.................................................................................7
Other Data..............................................................................................10
Workplace Homicide............................................................................. 11
Defining Workplace Violence..............................................................14
Categories of Workplace Violence.......................................................15
Chapter 2—Workplace Violence—A Safety Issue......................................21

The Directive..........................................................................................22
The Inspection........................................................................................27
The Conference......................................................................................33
Chapter 3—Workplace Violence—What’s at Stake....................................41

Impact of Workplace Violence.............................................................41
Stakeholder Responsibilities................................................................42
Law Enforcement Agencies..................................................................48
Chapter 4—Developing the Program..........................................................53

Management and Worker Involvement.............................................54
Worksite Analysis..................................................................................55
Records Review and Analysis.............................................................56
Screening Surveys.................................................................................61
Workplace security analysis.................................................................62
Hazard prevention and Control..........................................................62
Minimizing Risk....................................................................................63
Employer Response to Incidents of Violence....................................66
Training...................................................................................................68
Maintaining Records.............................................................................70
Program Evaluation..............................................................................71
Chapter 5—Developing the Plan..................................................................75

Policy Statement....................................................................................75
Preventive Practices..............................................................................77
Security Measures.................................................................................79
Workplace Security................................................................................79
v
Prevention—Training............................................................................81
Addressing Threats and Threatening Behavior................................83
Threat Assessment.................................................................................83
Questions to Ask....................................................................................85
Defining A Threat..................................................................................88
Chapter 6—The Legal Ramifications...........................................................91

Tort Law..................................................................................................91
Employer Liability.................................................................................93
Role of Worker’s Compensation.........................................................95
Elements of Negligence........................................................................96
Avoiding Liability..................................................................................97
Prohibited Employment Policies/Practices.......................................98
Reasonable Accommodation.............................................................101
Harassment...........................................................................................102
Pre-employment Issues......................................................................103
Dress Code............................................................................................ 111
Constructive Discharge...................................................................... 112
Prevention—The Final Word............................................................. 112
Chapter 7—Domestic Violence................................................................... 113

Defining Domestic Violence............................................................... 113
Recognition........................................................................................... 116
Commitment........................................................................................ 116
Multidisciplinary Approach.............................................................. 117
Prevention............................................................................................. 118
Mandates.............................................................................................. 118
Detection, Investigation and Risk Assessment...............................120
Safety/Security Measures..................................................................121
When Employees Are Abusers..........................................................122
Domestic Violence and Stalking in the Workplace.........................123
Role of Law Enforcement...................................................................124
Chapter 8—Racial Harassment...................................................................127

Harassment Defined...........................................................................127
Examples of Racial Harassment—EEOC Cases..............................129
Employer Liability...............................................................................139
Prevention.............................................................................................140
Co-Worker Harassment......................................................................140
vi
Chapter 9—Sexual Harassment..................................................................143
Facts About Sexual Harassment........................................................143
Examples of Sexual Harassment—EEOC Cases.............................145
Summary...............................................................................................156
Chapter 10—Disability Harassment..........................................................159

Disability Defined................................................................................159
Enforcement.........................................................................................160
Examples of Disability Harassment—EEOC Cases........................161
The ADA Amendments Act of 2008..................................................169
Summary...............................................................................................170
Appendix A—2011 Workplace Data (Preliminary).................................173

Workplace Homicides by Selected Characteristics.........................195
Fatal Occupational Injuries by Event or Exposure......................... 211
Appendix B—2010 Workplace Data..........................................................221

Fatal Occupational Injuries by Event or Exposure 2010................234
Appendix C—Occupational Homicides by

Selected Characteristics, 2010......................................................................259
Appendix D—Potential Abatement Methods..........................................271
Appendix E—Questions and Answers for Small Employers on

Employer Liability for Harassment by Supervisors.......................281
Appendix F—Laws Enforced by EEOC....................................................287
Index...............................................................................................................291
vii
Preface
• The head of a private school in Jacksonville, Florida, was gunned
down by a teacher whom she had terminated earlier that day. The
gunman was a 28-year-old Spanish teacher who concealed the AK 47
in a guitar case. He then committed suicide. No one else was injured
in the shooting.
• Two people were killed and nine wounded in New York City in a
shooting that took place in front of the Empire State Building in Au-
gust 2012. The shooter was killed by police in a hail of bullets. The
shooter was a disgruntled former designer who was laid off from his
job a year before the incident.
• A former employee, who was fired only hours earlier, came back
to the Minneapolis sign shop where he worked, killing five people
including the shop owner and a UPS driver before killing himself.
• In the summer of 2012, a husband in Memphis shot his wife to death

as she arrived for work before turning the gun on himself.
• A judge, a court reporter, and a deputy were killed in a Georgia

courtroom despite high security in the courthouse.
• In what is believed to be the nation’s deadliest workplace shooting

committed by a woman, a former postal worker who was on medical
leave for psychological problems, returned to a California mail pro-
cessing center in 2006 and killed six former colleagues before killing
herself.
Each year violence in the workplace takes its toll. Lives are lost and
people are injured. Business operations are interrupted and can come to a
grinding halt. As a result, the costs for doing business soar. And everyone
from the boardroom to shareholders to the assembly line to consumers—
pays the price.
The key to understanding the complexities of workplace violence
and its impact on business operations lies in focusing upon the issue
of prevention. As part of a company’s disaster and recovery planning
ix
initiative, workplace violence much be approached from the perspective
of prevention. As such it must focus upon identifying those factors and
issues that create or have the potential for creating this type of incident.
It must also define the strategies that can be used to address the issues
that contribute to workplace violence. While this book is written for
facility managers, it also targets other professionals who are charged
with the designing, installing, and maintaining various programs and
systems within a company. These include safety compliance officers, risk
managers, consultants, engineers, as well as maintenance executives and
human resources managers.
This book can also be used by CEOs, building owners, and their
senior staff. It can guide them in heightening their sensitivities to the issue
of workplace violence. More than just physical violence, there are the
issues of bullying, domestic violence or intimate partner violence, sexual
harassment, racial discrimination, intellectual disability, and physical
disability. Perpetrators of workplace violence can be current or former
co-workers, supervisors, managers, or strangers.
The book can also assist senior staff in meeting their own specific
responsibilities for ensuring the safety and well being of their employees,
tenant-occupants, or companies. It does so by raising awareness of what
was known prior to an incident occurring as well as when it was known
and what preemptive measures were taken to prevent the incident. Finally,
it raises the awareness of what measures need to be taken to ensure that
such incidents will never be repeated.
Developing plans and procedures for preventing workplace violence
is an integral part of a company’s long-range plan; it supports business
operations while ensuring business continuity—and that is where its
significance lies. A company’s effective disaster and recovery plan is of
strategic importance to employees, occupants, tenants, other business
entities, customers and clients and the community in general.
x
Acknowledgment
Our thanks go to Wayne Pearsall, J.D., who has been practicing
law for over 32 years and is licensed in Florida and Ohio. He has taught
Business Law and numerous other law courses since 1979 at both the
undergraduate and graduate levels.
He earned his Bachelor of Science Degree from Eastern Kentucky
University in 1974 and his Juris Doctor Degree from Wayne State
University Law School in 1978. He is a BV Distinguished rated lawyer
and has written about issues in the workplace involving employees and
the internet.
xi
Chapter 1
Violence In The Workplace

OSHA, The Occupational Safety and Health Administration, cites
workplace violence as a serious recognized occupational hazard, ranking
among the top four causes of death in workplaces during the past 15 years.
More than 3,000 people died from workplace homicide between 2006 and
2010, according to the Bureau of Labor Statistics (BLS). Additional data
indicate that an average of more than 15,000 nonfatal workplace injury
cases was reported annually during that time.
CRIME IN THE WORKPLACE: AN OVERVIEW
According to preliminary statistical data issued by the Bu-

reau of Labor Statistics (BLS) Census of Fatal Occupational Injuries
(CFOI), there were 4,609 fatal work injuries in 2011, down from the
final total of 4,690 fatal work injuries in 2010 (See Figure 1-1). The
rate of fatal work injury for U.S. workers in 2011 was 3.5 per 100,000
full time equivalent workers (FTE), as compared to a final rate of 3.6
per 100,000 FTE’s for 2010.
Fatal Injuries by Event

Violence and other injuries by persons or animals accounted
for 780 fatalities, or about 17 percent of the fatal injuries in the
workplace in 2011. This number includes 458 homicides and 242
suicides that occurred in 2011. Table 1-1 lists fatal occupational
injuries by event or exposure for 2011. Since there was a major revi-
sion in the Occupational Injury and Illness Classification System
(OIICS) that describes the characteristics of fatal work injuries,
information is available for 2011 only. As such, there are no com-
parisons of past data showing how 2011 fared in comparison to
previous years. Therefore, Appendix A provides 2011 data while
1
2
Figure 1-1. Number of fatal work injuries, 1992-2011

Workplace Violence and the Facility Manager
Violence in the Workplace 3
Appendix B provides data for previous years.

As noted in Table 1-1, there were 780 workers killed as a result
of violence and other injuries. Of the 458 homicides committed, 78
percent involved shootings. Shootings accounted for 45 percent
of the 242 suicides. Animal or insect related incidents claimed 37
lives. There were 375 fatal work injuries involving female workers.
Twenty-one percent of these work fatalities involved homicides.
Figure 1-2 shows fatal injury events for 2011 by gender of worker.
Current and/or former spouses and/or domestic partners account-
ed for nearly 2 out of every 5 female workers. Figure 1-3 shows
work-related homicides by gender of decedent and assailant type
for 2011.
2010 Data
As noted in Figures 1-2 and 1-3, data for 2011 are not compa-
rable to prior years, due to the implementation of the revised Occu-
pational Injury and Illness Classification System. However, statisti-
cal data for the prior year, issued by the BLS, reported a decline of
more than 50 percent from the high of 1080 homicides reported in
1994.
The 2010 statistics report that homicides involving women
were up 13 percent. Also, while the number of worker fatalities due
to homicide decreased since reaching a peak in 1994, the BLS noted
that from 2006 through 2010, more than 3000 people were victims of
workplace homicide.
Workplace suicides increased slightly from 263 cases in 2009 to
270 cases in 2010. This increase represented the highest annual total
for suicides reported by the fatal injury census. In contrast the final
number of workplace homicides in 2010 (518) was the lowest ever
reported. (N.B.: If the 2011 preliminary statistics released by the BLS
hold, 2011 will record the lowers number of workplace homicides).
During the same time period, the Department of Justice’s National
Crime Victimization Survey showed an overall decline in the rate
per 1,000 people of workplace nonfatal violence against employ-
ees, starting at 7.96 in 2000 and ending at 3.86 in 2009. The rate of
violent crime against employed persons has declined since 1993.
4 Workplace Violence and the Facility Manager
Table 1-1. Fatal occupational injuries by event or exposure, 2011

Violence in the Workplace
Figure 1-2. Distribution of fatal injury events, by gender of worker, 2011

5
6
Figure 1-3. Work-related homicides by gender of decedent and assailant type, 2011.
In 2009, an estimated 4 violent crimes per 1,000 employed persons

age 16 or older were committed while the victims were at work or
on duty, compared to 5 violent crimes per 1,000 employed persons
age 16 or older in 2002. In 1993, the rate of nonfatal violence was 15
violent crimes per 1,000 employed persons while at work, a rate 75%
higher than in 2009. From 2005 through 2009, strangers instigated
the majority of non-fatal incidents. Strangers committed about 53%
of workplace violence against males and about 41% against females.
Similar proportions of males and females were victims of intimate
partner violence in the workplace. Roughly 26 % of workplace vio-
lence perpetrated against males and about 33% against females were
committed by a person with whom that victim has a work relation-
ship. These work relationships include offenders who were custom-
ers, clients, patients and current or former supervisors, employees or
coworkers of the victim(s).
Among the work relationships examined, coworkers were the
most likely to attack persons in the workplace. Current or former
coworkers committed 16% of workplace violence against males and
about 14% against females. Patients committed a higher percentage
of workplace violence against females than males.
In its 2011 “Special Report on Workplace Violence, 1993-2009,”
the U.S. Department of Justice, Office of Justice Programs Bureau of
Justice Statistics reports that while 19% of victims of workplace vio-
lence worked in law enforcement, that occupation only represents
2% of all employed persons. Additionally, the report notes that 13%
of workplace violence victims worked in retail, while representing
9% of total employed persons. 10% of victims worked in medical
occupations Table 1-2 shows the workplace and non-workplace vio-
lence by occupation for 2005 -2009.
OCCUPATIONS AT RISK
From 2005-2009, of the occupational groups examined, law

enforcement occupations had the highest annual rate of workplace
violence (48 violent crimes per 1000 employed persons age 16 or
8
Table 1-2. “Workplace and non-workplace violence, by occupation, 2005-2009

Table 1-2 (cont’d). “Workplace and non-workplace violence, by occupation, 2005-2009
Violence in the Workplace
9
older), followed by mental health occupations (21 per 1000). Among

the individual occupations examined, no occupation had workplace
violence rates higher than those for law enforcement officers, securi-
ty officers, and bartenders. Bartenders (80 per 1000) had the highest
workplace violence rate of all retail sales occupations. Persons work-
ing in all mental health occupations had a similar rate of workplace
violence. Among teaching occupations, no occupation had a higher
rate of workplace violence than persons working in technical or in-
dustrial schools. All transportation occupations had a similar rate of
workplace violence.
OTHER DATA
During the 2005-2009 period, males had a higher rate of work-

place violence than females. In terms of race, whites had a higher
rate of workplace violence than blacks. There was no statistically sig-
nificant difference between whites and Native Americans in the rate
of workplace violence. Hispanics were similar to blacks and Asians
in their rates of workplace violence.
As noted above, males had a higher rate of workplace violence—
males accounted for 63% of the victims, while females accounted for
37% of workplace violence victims. While blacks and Hispanics ac-
counted for 9% and 8%, respectively of workplace violence victims,
whites made up the largest percentage of victims (78%).
A larger proportion of older workers were victims of workplace
violence. 54% of persons of employed persons 35 and older account-
ed for 54% of the victims of workplace violence compared to 17% of
workplace violence victims who fell in the 16-24 year age category.
Other survey data shows that 35% of victims of workplace vio-
lence had never married as compared to 47% of workplace violence
victims who were married. Roughly 46% of workplace violence vic-
tims were in households with annual incomes with at least $50,000.
Among those employed persons between the ages of 20-34 had
the highest rate of workplace violence. Persons who had never mar-
ried had a higher rate of workplace violence than those who were
married and the same rate as persons who were widowed, divorced
or separated. Persons in households with annual incomes of $50,000-
$74,999 had similar rates of workplace violence as persons in house-
holds with annual incomes of $7,500-$14,999.
WORKPLACE HOMICIDE
According to the Bureau of Labor Statistics’ Census of Fatal

Occupational Injuries (CFOI), the number of workplace homicide
victims ages 16 or older decreased by 39% from 1068 in 1993 to 648
in 1999. Figure 1-4 lists the workplace homicides of employed vic-
tims age 16 or older for the years 1993-2009. The number decreased
again in 2004 to 559. In 2009, there were 521 workplace homicides, a
decrease from 2008, when there were 526 workplace homicides.
From 2005-2009, a third of workplace homicide victims worked
in sales-related and office occupations (28% were sales-related, while
5% were office positions). And roughly another third of workplace
Figure 1-4. Workplace homicides, 1993-2009, number of employed victims age

16 or older
homicide victims worked in various service occupations, including

protective services; these occupations accounted for 17% of work-
place homicide victims.
The Department of Justice’s Special Report indicates that the
majority of workplace homicides from 2005-2009 were male and
middle-aged. Males accounted for 80% of the victims of workplace
homicides Table 1-3 shows the workplace homicide victims by sex,
age, race/Hispanic origin for 2005-2009. From 2005-2009, about 48%
of all workplace homicide victims were between the ages of 35 and
Table 1-3. Workplace homicide victims, by sex, age, race/Hispanic origin,

2005-2009
54; about 21% were ages 55 and older; and about 10% were ages 16-
24. Whites accounted for about half of all workplace homicide vic-
tims, while blacks represented a fifth of all victims. In comparison,
Hispanics accounted for 16% of all workplace homicide victims and
Asians accounted for 11 per cent.
Robbers and other assailants accounted for the majority of
workplace homicide offenders. From 2005-2009, about 38% of work-
place homicide offenders were robbers Table 1-4 show workplace
homicides by offender and type for 2005-2009. Work associates
accounted for about 20%, and customers and clients represented
about 10% percent of all workplace homicide offenders. Current and
former co-workers committed 11% of workplace homicides. Spouses
accounted for about 3% of offenders in workplace homicides.
Most workplace homicide resulted from shootings. Shootings
accounted for about 80% of workplace homicides from 2005-2009.
Table 1-5 shows workplace homicides by incident type for 2005-
Table 1-4. Workplace homicides, by offender type 2005-2009.

Table 1-5. Workplace homicides, by incident type, 2005-2009
2009. About 14% of workplace homicides resulted from hitting, kick-

ing, stabbings, or beatings.
DEFINING WORKPLACE VIOLENCE
A specific category of violent crime, workplace violence is more

than a physical attack. According to the FBI, homicide, as well as
other physical assaults, is on a continuum that includes domestic vi-
olence, stalking, threats, harassment and bullying. Emotional abuse,
intimidation and other forms of conduct that create anxiety, fear or a
climate of distrust in the workplace falls into this definition.
The Occupational Safety and Health Administration, OSHA,
defines workplace violence as “any act or threat of physical violence,
harassment, intimidation, or other threatening disruptive behavior
that occurs at the work site. It ranges from threats and verbal abuse
to physical assaults and even homicide. It can affect and involve em-
ployees, clients customers and visitors.”
The Center for Disease Control and Prevention, National Insti-
tute of Occupational Safety and Health (NIOSH) defines workplace
violence as “violent acts (including physical assaults and threats of
assaults) directed towards persons at work or on duty.”
Other definitions include those of the International Labour
Organization (ILO) and Ontario’s Health & Safety Act (OHSA).
The ILO defines workplace violence as “Any action, incident, or

behavior that departs from reasonable conduct in which a person is
assaulted, threatened, armed, injured in the course of, or as a direct
result of his or her work. Internal workplace violence is that which
takes place between workers, managers, including managers and
supervisors. External workplace violence is that which takes place
between workers (and managers and supervisors) and any other
person present at the workplace.”
Ontario’s Health and Safety Act (OHSA) defines workplace
violence as “The exercise of physical force by a person against a
worker, in a workplace, that causes or could cause physical injury to
the worker; an attempt to exercise physical force against a worker,
in a workplace, that could cause physical injury to the worker; a
statement or behavior that is reasonable for a worker to interpret as
a threat to exercise physical force against the worker, in a workplace,
that could cause physical injury to the worker.”
However, regardless of its definition and how it might manifest
itself, workplace violence is a growing concern for both employers
and employees.
CATEGORIES OF WORKPLACE VIOLENCE
The FBI classifies workplace violence into four broad catego-

ries, which include:
1. Violence committed by criminals who enter to commit robbery
or another crime and who have no connection with the work-
place.
2. Violence directed at employees by customers, clients, patients,
etc., for whom an organization provides service;
3. Violence against co-workers, supervisors or managers by a
present or former employee; and
4. Violence committed in the workplace by someone who is per-
sonally involved with an employee such as an abusive spouse,
domestic partner, boyfriend or girlfriend, etc.
A Closer Look
A closer look provides a clearer understanding of which occu-
pations or employee groups are most at risk.
Category 1
This offender is not associated with the workplace. Robbery
is the prime motivator for the majority of workplace homicides.
(The common idea that workplace homicides are committed by co-
workers, clients or spouses—employees going “postal”—is false.
Only one in seven homicide victims were killed by a co-worker or
personal associate). Nearly 80% of workplace homicides are commit-
ted by criminals unconnected to the workplace. In these incidents
the motive is usually theft, and in many cases a criminal is carrying
a gun or other weapon that increases the likelihood that the victim
will be killed or seriously wounded. Occupational groups that are
more vulnerable and fall in category 1 are taxi drivers, late-night re-
tail or gas station clerks. Persons who are on duty at night and who
work in isolated locations or dangerous neighborhoods and who, in
fact, carry cash or have access to cash are also most vulnerable.
Preventive strategies for this category emphasize physical se-
curity measures, as well a special employer or company policies in
employee training. The FBI notes that the reasons for the decline in
workplace homicides since the early 1990s is due to the safety and
security measures adopted by companies or businesses that may be
particularly vulnerable.
Category 2
The category 2 offender is the person who has received some
type of service from an employee. Subsequently, the violent act
typically involves assaults on the employee who is providing that
service. In effect, the offender is a client of the service provider. Most
often, when the violent acts occur, it is when the provider is perform-
ing normal, routine tasks. In some occupations, dealing with danger-
ous and volatile people is inherent in the job. Victims of Type 2 vio-
lence are members of law enforcement and safety forces (both public
and private), health care providers, social service providers, court
personnel and teachers. For other occupations, violent reactions by

a customer, or client are unpredictable. The violent act could be trig-
gered by an argument, anger at the quality of the service provided,
or because the service was either delayed or denied.
Statistically, the employees who experience the largest number
of category 2 assaults are those who are in health care occupations.
Those occupations include medical response teams and health care
personnel who work in admissions, emergency rooms, and crisis or
acute care units. Nurses, in particular, as well as doctors and aides
who deal with psychiatric patients are most vulnerable.
Other high risk occupations that have contact with the public
and, therefore, have an increase for the risk of workplace violence
include:
• Police officers;
• Private security guards;
• Taxi drivers;
• Prison guards;
• Bartenders;
• Mental health professionals;
• Gas station attendants;
• Convenience store clerks;
• Liquor store clerks;
• Mental health custodial workers;
• Bus drivers; and
• Teachers.
Category 3
The third category of offender involves a person who has some
relationship with the company or a company employee. This of-
fender would be a current or former employee or coworker as well
as friends and/or relatives of current or former employees. Former
customers would also be included in this category. Generally speak-
ing, this type of violence occurs in companies with a large employee
base.
Category 4
The violence that occurs within this category involves current
employees and their personal relationships. Those relationships
would include abusive spouses, domestic partners or other personal
relationships. While both men and women can and are the victims
of domestic violence female employees are more vulnerable to this
type of violence.
Because domestic violence can spill over into the workplace,
it brings not only a danger to the worksite, but it brings with it in-
creased absenteeism and decreased productivity.
Violence in the workplace, whether it is conducted by an out-
sider, employees, former employees or domestic partners of current
or former employees is equally as dangerous or damaging as any
other form of a violent act. However, when these types of violence
come either with employees or someone close to the employee, there
is a greater chance that warning signs have already presented them-
selves. This knowledge along with an appropriate violence preven-
tion training program can mitigate the potential for violence.
As noted earlier, OSHA has identified workplace violence as
one of the four major causes of occupational death. In fact, work-
place violence has remained one of the four major causes of worker
death over the course of the past 15 years. The Agency also notes
that nearly two million American workers report being victims of
workplace violence each year.
The statistics presented in this chapter have sobering conse-
quences for everyone. Companies and their employees are thrown
into a tailspin when senseless acts of violence occur. From an eco-
nomic perspective, companies lose millions of dollars in lost produc-
tivity and downtime. A study of the effects of workplace violence
conducted by the U.S. Department of Justice reveal that workplace
violence costs employers millions of lost work days each year. Those
lost workdays may be due to worker anxiety as well as depression or
other after effects of a violent episode including anger, nightmares,
sleeplessness, withdrawal, paranoia and in some cases, substance
abuse. These lost workdays translate into millions of dollars in lost
wages. Also impacted by workplace violence are the legal and secu-
rity costs, medical costs and worker’s compensation costs.

Finally, from a human perspective, the toll is even more exact-
ing. Employees, who are the victims of violence, as well as their co-
workers, can and often do ride an emotional roller coaster. As noted
above, reaction to violence in the workplace can manifest itself in
response to violence-induced stress. Most significant, of course, is
the needless loss of human life.
Sources
Gustin, Joseph F., Disaster and Recovery Planning, A Guide for Facility Manag-
ers, 5th. ed., Lilburn, GA: The Fairmont Press, Inc. 2010.
Gustin, Joseph F., Safety Management, A Guide for Facility Managers, 2nd. ed.,
Lilburn, GA: The Fairmont Press, Inc. 2008.
United States Bureau of Labor, United States Bureau of Labor Statistics, 2011.
United States Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics, Special Report, “Workplace Violence, 1993-2009,”
March 2011.
Chapter 2
Workplace Violence—
A Safet y Issue
Because the issue of workplace violence is first and foremost a
safety issue, facility managers must be prepared to assist employers
in responding to this issue. However, before a response can be pre-
pared, several questions need to be answered. These questions can
best be answered within the context of the General Duty Clause of
the Occupational Safety and Health Act.
Since there is an Occupational Safety and Health Administra-
tion (OSHA) requirement that employers provide “a safe and health-
ful working environment” for their employees, the questions that
employers, building owners and managers ask are:
• What are employers required to do in order to provide this

“safe and healthful working environment?”
• What can employers do to prevent violence from occurring on

the worksite?
• What should employers do to assist employees—victims as

well as co-workers, to cope with the after-effects of the violent
act?
Answers to these questions are important to employers, build-

ing owners and their agents and representatives. As is the case with
any other worker safety issue, employers may be found in violation
of the general duty clause if they fail to reduce or eliminate serious
recognized hazards, including an employer’s duty to “prevent em-
ployees from feasibly preventable hazards.” As a result, OSHA has
issued its first ever directive that describes the enforcement proce-
dures of investigating or inspecting workplace violence incidents.
21
THE DIRECTIVE
With an effective date of September 8, 2011, this directive (Di-

rective Number: CPL 02-01-052) establishes OSHA’s general enforce-
ment policies and procedures for field offices to apply when con-
ducting inspections related to workplace violence. The instruction
also highlights the steps that should be taken in reviewing incidents
of workplace violence. These steps are important to consider when
deciding when and if to initiate an inspection in those industries
that OSHA has identified as susceptible to the workplace violence
hazard. The directive provides guidance on how an OSHA work-
place violence case is developed and which steps OSHA area offices
should take to assist employers in addressing the issue of workplace
violence.
The significance of this directive lies in the fact that it is “the
first instruction on the enforcement procedures for investiga-
tions and inspections that occur as a result of workplace violence
incident(s). It also specifically speaks to those worksites in those
industries that OSHA has identified as susceptible to workplace
violence. It clarifies and expands the Agency’ policies and proce-
dures in these areas.”
This directive is not intended to require an OSHA response to
every complaint or fatality of workplace violence, or to require that
citations or notices be issued for every incident inspected or inves-
tigated. Rather, it provides general enforcement guidance to be ap-
plied in determining whether to make an initial response and/or cite
an employer. As the directive also notes, an instance of workplace
violence is presumed to be work-related if the violence results from
an event occurring in the workplace.
Employers may be found in violation of the General Duty
Clause if they fail to reduce or eliminate serious recognized hazards.
Under this directive, however, inspectors should gather evidence to
determine whether an employer recognized the existence of a poten-
tial workplace violence hazard that affects employees. Additionally,
an investigation should focus on the availability to employers of
feasible means of preventing or minimizing workplace hazards.
Workplace Violence—A Safety Issue 23
Application
This directive applies to inspections or investigations conduct-
ed by OSHA officials (i.e., Compliance, Safety and Health Officers
[CSHOs] and regional and national office officials) who:
• Conduct inspections in response to a complaint of workplace

violence; or
• Conduct programmed inspections at worksites that are in in-

dustries with a high incidence of workplace violence. These
industries are healthcare, social service settings, and late-night
retail establishments.
Note that this directive is not intended to exclude other pro-

grammed inspections when workplace violence is uncovered and
well documented.
Background
Workplace violence is recognized as an occupational hazard
in some industries and environments, which like other safety is-
sues, can be avoided or minimized if employers take appropriate
precautions. At the same time, it continues to negatively impact the
American workforce. Workplace violence has remained among the
top four causes of death at work for over fifteen years and it impacts
thousands of workers and their families annually. Figure 2-1 shows
these four most frequent work-related fatal injury events for 1992-
2010.
Research has identified factors that may increase the risk of
violence at worksites. Such factors include working with the public
or volatile, unstable people. Working alone or in isolated areas may
also contribute to the potential for violence. Handling money and
valuables, providing services and care, and working where alcohol
is served may also impact the likelihood of violence. Additionally,
time of day and location of work, such as working late at night or in
areas with high crime rates, are also risk factors that should be con-
sidered when addressing issues of workplace violence.
24
Figure 2-1. Four Most frequent work-related fatal injury events, 1992-2010*
As noted in Chapter One, The Bureau of Labor Statistics’ (BLS)

Census of Fatal Occupational Injuries (CFOI) shows an average of
590 homicides a year from 2000 through 2009, with homicides re-
maining one of the four most frequent work-related fatal injuries.
Workplace homicides remained the number one cause of workplace
death for women in both 2009 and 2010.
The BLS also noted that while there was some fluctuation over
this ten year period there was an overall decline, 677 victims in 2000
and 521 in 2009. During this same time period, the Department of
Justice’s National Crime Victimization Survey showed an overall
decline in the rate per 1,000 people of workplace nonfatal violence
against employees, starting at 7.96 in 2000 and ending at 3.86 in
2009. From 2005 through 2009 strangers instigated the majority of
non-fatal incidents. In addition, during the same time period, results
showed that 19% of victims of workplace violence worked in law
enforcement, while 13% worked in retail. 10% of victims worked in
medical occupations.
Over the last several years, research has provided some frame-
works for developing methods to prevent or minimize the likelihood
of workplace violence. As more has been learned about workplace
violence, it has become apparent that workplace violence prevention
is a concern spread across many responsible entities. The National
Institute of Occupational Safety and Health (NIOSH) published
“Workplace Violence Prevention Strategies and Research Needs.”
In this report, NIOSH notes that a multidisciplinary team approach
to workplace violence prevention is needed. “The involvement of
persons with diverse expertise and experience is especially critical
due to the depth and complexity of [workplace violence] preven-
tion. Such teamwork is crucial for planning, developing and imple-
menting programs…” that includes “management, union, human
resources, safety and health, security, medical/psychology, legal
communications and worker assistance.”
Prevention programs can reduce incidents of workplace vio-
lence. By assessing their worksites employers can identify methods
for reducing the likelihood of incidents occurring. OSHA believes
that a well-written and implemented Workplace Violence Preven-
tion Program, combined with engineering controls, administrative

controls and training can reduce the incidence of workplace violence
in both the private sector and federal workplaces. The Agency has
developed several guidelines to assist employers, including poten-
tial abatement methods for the retail industry, health care and social
services facilities and taxi/for-hire drivers.
Purpose
OSHA’s September, 2011 directive states “the purpose of the
instruction is to provide general policies and procedures…to apply
when conducting inspections in response to incidents of workplace
violence.” While incidents of violence can and do occur in any work-
place setting, there are industries that are more prone to violence. As
such, workplace violence is recognized as an occupational hazard in
those industries and environments.
As noted above, OSHA has identified healthcare and social
service settings, as well as late-night retail settings, as high-risk in-
dustries.
Health care and social service settings. This category covers a
broad spectrum of workers who provide services in hospital emer-
gency departments, psychiatric facilities, community mental health
clinics, drug abuse treatment clinics, pharmacies, community-care
facilities, residential facilities and long-term care facilities. Workers
in these fields include physicians, registered nurses, pharmacists,
nurse practitioners, physicians’ assistants, nurses’ aides, therapists,
technicians, public health nurses, home health care workers, social
and welfare workers, security personnel, maintenance personnel
and emergency medical care personnel.
OSHA published voluntary, generic safety and health program
management guidelines in January 1989. These guidelines can be an
employer’s foundation for their safety and health programs, which
can include workplace violence prevention programs.
The goal is to eliminate or reduce worker exposure to condi-
tions that lead to death or injury from violence by implementing
effective security devices and administrative work practices, among
other control measures.
Late-night retail settings. This includes entities such as con-

venience stores, liquor stores and gas stations. Factors that put
late-night retail employees at risk include the exchange of money,
twenty-four hours operations, working alone, isolated work sites,
the sale of alcohol and poorly-lit stores and parking areas.
In 1994, OSHA developed recommendations to help late-night
retail employers design and implement prevention programs tai-
lored to those workplace hazards unique to their businesses. With
specific recommendations, the guidelines assists employers and
workers in recognizing the hazards that lead to violent incidents, by
adopting practical appropriate prevention and control methods.
While not limited to these high-risk industries, workplace vio-
lence can happen anywhere and at any time and in any industry, com-
pany or facility. OSHA notes “Violence inflicted on employees may
come from many sources—external parties such as robbers or mug-
gers and internal parties such as coworkers and patients.” Although
the guidelines that the agency promulgated for health care and social
service workers address only the violence inflicted by patients or cli-
ents against staff, they are relevant to all industry types. All employers
can use these guidelines as a foundation for their safety and health
program initiative. Because the guidelines are performance oriented,
their utility will be based on a specific worksite’s hazard analysis.
OSHA’s violence prevention guidelines build on these generic guide-
lines by identifying common risk factors and describing some solu-
tions. Although not exhaustive, the workplace violence guidelines
include policy recommendations and practical corrective methods to
help prevent and mitigate the effects of workplace violence.
THE INSPECTION
A compliance officer represents OSHA and is expected to dem-

onstrate knowledge and expertise in the safety and health field in a
courteous and professional manner. Before the inspection, the com-
pliance officer will become familiar with as many relevant facts as
possible about the workplace, such as its inspection history, the na-
ture of the business, and the particular standards that might apply.
This preparation provides the compliance officer with the knowl-

edge of the potential hazards and industrial processes that may be
encountered and aids in selecting appropriate personal protective
equipment for use against any hazards during the inspection.
Inspection Scope
OSHA will initiate an inspection when two things occur: (1) a
complaint or referral happens and when a fatal or catastrophic event
occurs; and (2) where workplace violence is identified as an issue.
An inspection is considered when there is a complaint, referral,
or fatality and/or catastrophic event involving a workplace violence
incident, particularly from a workplace identified by OSHA as hav-
ing a potential for workplace violence.
An inspection is also considered when a potential for work-
place violence is recognized. It is also conducted if and when the
hazard is identified as existing.
When threats of co-worker violence are made the Safety
Agency will refer those threats to the local authorities. OSHA then
informs the employer when a referral is made to any of these agen-
cies/departments.
Inspection Scheduling
Inspections are generally conducted in response to the follow-
ing:
• Complaints and referrals;

• As part of a fatality and/or catastrophic event; and
• Where reasonable grounds exist.
The criteria used for reasonable grounds include formal com-

plaints and non-formal complaints.
Workplace Violence Complaints and Referrals. When a formal com-
plaint is generated, an on-site inspection is considered. When the
inspection criteria for formal complaints and referrals are not met,
non-formal complaint procedures take place.
In addition to formal complaint and referral procedures, OSHA
personnel will determine if reasonable grounds exist to conduct an

inspection. The Agency will conduct a factual screening—talking to
the source of the complaint or referral—to assess the feasibility of
initiating an inspection.
The known workplace violence risk factors are considered.
While each of the factors is considered, individually they would not
trigger an inspection. The risk factors include the following:
• Working with unstable or volatile persons in certain healthcare,

social service or criminal justice settings;
• Working alone or in small numbers;
• Working late at night or during early morning hours;
• Working in high-crime areas;
• Guarding valuable property or possessions;
• Working in community-based settings, such as community
mental health clinics, drug abuse treatment clinics, pharmacies,
community-care facilities and long- term care facilities;
• Exchanging money in certain financial institutions;
• Delivering passengers, goods or services; and
• Having a mobile workplace such as a taxicab.
Evidence of employer and/or industry recognition of

workplace violence potential
An inspection will be initiated when, in those high-risk indus-
tries identified by OSHA, there is the recognition that the employer
and/or industry knew of the workplace violence risks. In addition
to the high-risk industries/employers identified above, delivery
service mobile workplaces, e.g., taxicabs, pharmacies, etc. are also
considered high-risk.
Examples of existing industry abatement methods

for addressing workplace violence risks
Listed below are four examples where an inspection for work-
place violence could be initiated and the subsequent criteria for

inspection. The first example presents facts where OSHA would
investigate, the second is a case where OSHA would not investigate
and the final two are examples that require OSHA area director dis-
cretion.
Example 1—A patient in the psychiatric ward at a local hospital

attacks a nurse. In this example, OSHA would investigate because
there is a known risk factor—an employee working with an unstable
or volatile person is attacked. Additionally, this particular scenario
is recognized by the industry and employer as a risk factor; there is
a large body of studies regarding potential workplace violence in
these types of healthcare settings. Finally, an investigation would be
conducted because there are feasible means of abatement. A large
body of work on feasible means of abatement is available to address
this type of violence. For example, having two or more employees
present when unstable clients are at the facility minimizes the risk of
the violent act occurring.
Example 2—A disgruntled acquaintance stabs a bookstore employee

at work. In this example there would be no investigation because
there is no known risk factor that exists. The incident covers only
some of the risk factors, and the hazard could not have been reason-
ably anticipated. Other reasons why an inspection would not be
conducted in this particular case include:
• The bookstore was not in a high crime area;

• The incident occurred at 10 a.m. in a store with five employees
present;
• The only knowledge the employer had was that the employee
and acquaintance appeared to argue prior to the stabbing;
• There is no industry and/or employer recognition for this type
of incident;
• No industry history of violence at bookstores and no reason for
the employer to anticipate such an incident; and
• No feasible means of abatement exists. There are no known

prevention measures for random acts of violence in this type of
workplace setting.
Example 3—A shooting was reported at a local grocery store. Even

though this incident is a known risk factor, evidence needs to be
gathered to determine if an investigation should take place. The un-
known evidence to be considered include:
• Is the store in a high-crime area?

• Have there been past threats or acts of violence and is there a
pattern of violence against employees at the store?
• What time of day or night did the incident occur?
• How many times have police responded to disturbances at this
location?
• How many employees were working at the time?
• Was the incident a robbery?
It is unknown if there is industry and/or employee recognition

of known violence risks. Therefore, answers to the above questions
will help determine if the local grocery store may be considered a
late-night retail establishment. If it is determined that the store is
considered a late-night retail establishment, an inspection will occur.
Information will also be gathered on any safety precautions
taken by the employer and a review will be conducted of injury and
illness logs to determine whether the employer recognized the po-
tential for violence or knew of past incidents. It is unknown if there
is the existence of feasible means of abatement. The OSHA represen-
tative, therefore, will determine if there are feasible means of abate-
ment available to the local grocery store to eliminate or reduce the
possibility of future incidents. This scenario requires the discretion
of the OSHA area director.
Example 4—Employees at a financial institution were shot. In this

example, the OSHA area director will exercise discretion. Even
though working at a financial institution is a known risk factor be-

cause of the exchange of money, information still needs to be gath-
ered regarding the type of workplace where the incident occurred.
Is it a stand-alone bank, a credit union in an office building, a quick
loan or check cashing storefront? Other information that will be
gathered includes:
• Was the establishment in a high crime area?

• Was the financial institution held up?
• What were the circumstances surrounding the violent incident?
• Was the perpetrator an acquaintance of any of the employees?
• What interactions occurred between the perpetrator and em-
ployees?
There is also the industry and/or employer recognition that

the financial industry is a known risk factor since studies exist on
the potential for armed robberies at financial institutions. Another
question then must be answered to determine the feasibility of an
inspection, i.e., were there any engineering controls in place to ad-
dress incidents of workplace violence, such as bulletproof glass and
“buzz-in” entries?
It is also unknown if there exists effective abatement methods
available to reduce or eliminate the possibility of future incidents.
These feasible abatement methods would depend on the type of in-
cident that occurred and the institution.
Fatality/Catastrophe. Inspections are generally conducted where

there is a death of one or more employees or hospitalization of three
or more employees. However, the area director may decide not to
initiate an inspection for a workplace violence fatality based upon
fact assessment criteria and application of the above listed criteria.
OSHA representatives will not conduct their own inspections at
the same time as other law enforcement personnel. If an OSHA rep-
resentative arrives during a police investigation, they will stop their
investigation, contact the law enforcement commander and request
to be notified once the on-site police investigation is complete.
Programmed Inspection. OSHA may pursue an investigation for

workplace violence during programmed inspections where there is
recognition of the potential for workplace violence in that industry,
or where the hazard is identified as existing.
Inspection Procedures
This section outlines procedures for conducting inspections and
issuing citations or notices for workplace violence hazards. The pro-
cedures OSHA follows for conducting an inspection involves compli-
ance officers and regional workplace violence program coordinators.
Compliance officers should consult the OSHA directives as
well as the appendices and other references for guidance. The re-
gional workplace violence program coordinators should contact the
National Office Agency Workplace Violence Program Coordinator
via e-mail within ten working days after any enforcement action
that has been taken in response to workplace violence. The e-mail
should provide the name of the company/business, the inspection
number(s), a list of any expected violations, the six-month date, the
approximate penalty amount, if available, and the current status of
the case. Coordinators are encouraged to track all complaints re-
ceived and inspections conducted involving workplace violence in
order to monitor any potential patterns.
CSHOs who are conducting inspections for a local, regional or
national emphasis program and who identify incidents or workplace
violence through observations, employee interviews and/or injury
and illness records, may expand the scope of the inspection to ad-
dress these safety and health hazards.
THE CONFERENCE
There are four major parts in an OSHA conference; each section

is discussed below.
• Opening conference;
• Walk-around and records review;
• Citation and notification procedures; and
• Closing conference.
Opening Conference
In the opening conference, the compliance officer explains the
reason for the inspection to the employer including the incident that
prompted the investigation. The compliance officer may provide
employers with a copy of OSHA’s Guidelines for Preventing Workplace
Violence for Health Care & Social Service Workers, Recommendations for
Workplace Violence Prevention Programs in Late-Night Retail Establish-
ments, or other appropriate guidance. The officer will also request
information on any hazard assessments performed and incident
reviews at the facility concerning issues of workplace violence. They
will identify all employees who are in charge of security and/or re-
sponsible for the workplace violence prevention program, if any.
CSHOs will initially determine whether the employer has a
workplace violence prevention program. The officer will conduct
interviews and request relevant documents to determine whether
the employer has considered or implemented a hierarchy of controls
for worker protection against potential acts of workplace violence.
These controls include engineering or administrative controls, work
practices and personal protective equipment.
The evaluation of an employer’s workplace violence preven-
tion program should be based on any written safety programs
and record-keeping for injury and illness data. In addition, other
information that will be reviewed includes medical records related
to incidents of workplace violence, police incident reports, actions
taken to prevent future incidents and any other information deemed
appropriate by the CSHO.
CSHOs should request all information regarding worker train-
ing programs and other methods used to inform workers of the
potential for, and prevention of, workplace violence. Where appro-
priate, CSHOs should also request any discipline records related to
violence or aggression shown at the workplace.
Walk-around and Records Review

CSHOs should use professional judgment in determining
which areas of the facility will be inspected. Documenting resident
or patient handling activities by videotaping or photography re-
quires the resident’s informed, written consent. Family members or

guardians may give consent for those residents who are incapable of
giving informed consent. CSHOs should identify jobs or locations
with the greatest potential for workplace violence, as well as any
processes and procedures that put workers at risk, including: build-
ing layout, interior and exterior lighting, communication systems
and absence of security systems.
CSHOs will interview all available employees on all work
shifts who observed or experienced any acts of workplace violence.
CSHOs should also interview first responders, police officers, man-
agers and any others who observed the incident or its aftermath.
Access to Employee Medical Records. In situations where the
CSHO determines that medical records should be reviewed, an
administrative subpoena should be obtained and served on the
employer concurrently with the Medical Access Order (See CPL 02-
02-072, Rules of Agency Practice and Procedure Concerning OSHA
Access to Employee Medical Records, August 2007). CSHOs may
also consider obtaining specific written consent from an employee
pursuant to 29 CFR 1910.1020(e)(2)(ii)(B) and should ensure that the
agency or agency employee receiving the information is listed on the
consent form as the designated representative.
Injury/Illness Records. To establish any existing trends of work-
place violence, the CSHO should review the employer’s injury and
illness records from five years prior. This review will not only iden-
tify those workers with recorded injuries associated with workplace
violence but also identify the frequency and severity of incidents. If
there is evidence that a particular work-related incident that meets
the record-keeping criteria has not been recorded by the employer, a
citation for violation of 29 CFR 1904.5 may be issued.
Other Records. Whenever possible, CSHOs should review the
following types of records to determine if other incidents of work-
place violence occurred and were undocumented in the OSHA log:
• Workers’ Compensation Records;
• Insurance Records;
• Police Reports;
• Security Reports;
• First-Aid Logs; and

• Accident or near-miss logs.
As with the injury and illness records, CSHOs should identify

the frequency and severity of the incidents.
Citation and Notice Procedures

Prior to issuing a citation or notice, Area Directors are required
to ensure that there is:
• A thorough evidentiary development/documentation of the

case file;
• Early involvement in the investigation by the Regional Work-
place Violence Program Coordinator, Regional Solicitor and the
National Office Workplace Violence Program Coordinator; and
• Approval for issuance from the Directorate of Enforcement
Programs (DEP) at least three weeks before the six month statu-
tory deadline for issuing citations. Note that approval from the
DEP is not required for cases that solely address record keeping
violations.
The following requirements, although not comprehensive, are

used to determine employee exposure to incidents of workplace vio-
lence:
Section 5(a)(1) General Duty Clause; or
29 CFR 1960.8(a) Executive Order 12196, Section 1-201(a)

for Federal facilities (the General Duty
Clause for Federal agencies)
29 CFR 1904 Recording and Reporting Occupational

Injuries and Illnesses
29 CFR 1910.151 Medical Services and First Aid
29 CFR 1926.23 First Aid and Medical Attention
29 CFR 1926.35 Employee Emergency Action Plans

It is important to note that the language used in the citations

should focus on the hazard and in no way stigmatize groups of
persons as being prone to violent behavior. Additional guidance on
writing citations that address workplace violence will be provided
during the CSHO training.
Where present, CSHOs should document the existence of in-
dustry and/or employer recognition of the hazard.
Industry Recognition
• Documentation from the business groups and associations
(including the Joint Commission for healthcare facilities) affili-
ated with the employer identifying the problem of workplace
violence;
• Journal articles and research showing the existence of work-

place violence in the given industry;
• NIOSH and OSHA publications;
• National consensus standards; and
• State and local laws that address workplace violence in specific

industries, such as healthcare facilities or late-night retail.
Employer Recognition
• Documentation of any employees informing the employer of
the hazard or related inspections of the employer;
• Employer awareness of any prior incidents, injuries or close

calls related to workplace violence;
• Any precautions/protective measures taken by the employer to

prevent or minimize workplace violence;
• Documentation of how the employer currently addresses
workplace violence including a security plan, training plan,
presence of a preventative plan and other safety documents;
• Interviews of management, including the person responsible

for certifying the OSHA 300 logs;
• Employee interviews;
• Union complaints;
• Employer awareness of local and state laws, i.e., state or mu-
nicipal licensing or accrediting regulations;
• The hazard caused or was likely to cause death or serious
physical harm;
• Documentation that the workplace violence hazard caused or
was likely to cause serious physical harm. Examples include
employee interviews, injury and illness logs and police reports;
and
• Evidence of actual instances where employees were threatened
with physical harm or seriously injured or killed as a result of
workplace violence.
There are feasible abatement methods available to address the hazard.

CSHOs should document any feasible abatement methods and an
explanation of how these methods would reduce the hazard. See Ap-
pendix D for information on types of feasible abatement methods.
In certain cases, an expert knowledgeable in the industry may need
to be retained to show that the proposed abatement measures are
feasible and recognized within that industry. Area Directors should
consult with the Regional Solicitors in such situations.
Observation of hazards. If potential workplace violence hazards
noted by a CSHO during an inspection are not covered by a particu-
lar standard and do not rise to the level of a 5(a)(1) General Duty
Clause violation, a hazard alert letter recommending the implemen-
tation of protective measures that address identified hazards shall be
considered.
Closing Conference—Abatement Methods

In workplaces where a potential for violence against employees
has been identified, the employer should be encouraged to develop
and implement a workplace violence prevention program. CSHOs
should discuss with the employer potential controls for these types
of hazards. However, it is the employer’s responsibility to employ

the most effective feasible controls available to protect its employees
from acts of workplace violence.
The selection of abatement methods should be based on spe-
cific hazards identified in a workplace analysis of the facility/place
of employment, temporary duty locations and workers’ travel routes
while on duty. (See Appendix D: OSHA’s Potential Abatement Meth-
ods).
Training. It is the responsibility of OSHA’s Area Directors and
Regional Training Coordinators to ensure that Compliance Officers
who perform workplace violence inspections are familiar with the
most recent guidelines on the subject. Compliance Officers must also
be adequately trained on workplace violence prevention, recogni-
tion of high-risk situations, and ways to defuse hostile situations.
Training should also include instruction on potential workplace risk

factors, types of workplace violence, and abatement measures avail-
able to address the hazard. CSHOs are also encouraged to review
training materials developed by the NIOSH, the FBI, and USDA.
This training is intended to assist CSHOs to understand specific
workplace violence incidents, to identify hazard exposure and to as-
sist the employer in abating the hazard.
Sources
Centers for Disease Control and Prevention, The National Institute for Occupa-
tional Safety and Health, NIOSH, Workplace Violence Prevention Strategies
and Research Needs, NIOSH Publication: No. 2006-144.
Gustin, Joseph F., Disaster and Recovery Planning, A Guide for Facility Managers,
5th. ed., Lilburn, GA: The Fairmont Press, Inc. 2010.
U.S. Bureau of Labor, Bureau of Labor Statistics, Workplace Injuries, 2011.
U.S. Department of Labor, Occupational Safety and Heath Administration,
Enforcement Procedures for Investigating or Inspecting Workplace Violence
Incidents, Directive Number: CPL 02-01-052, Effective Date: September 8,
2011.
Guidelines for Preventing Workplace Violence for Health Care and Social Ser-
vice Workers, OSHA Publication: 3153, 2009.
Recommendations for Workplace Violence Prevention Programs in Late-Night
Employers, OSHA Publication: 3153-12R, 2009.
U.S. Office of Personnel Management, Office of Workforce Relations, Dealing
with Workplace Violence: A Guide for Agency Planners, Publication Number
OWR-09, February 1998.
Chapter 3
Workplace Violence—
What’s at Stake
If workplace violence is defined as any threatening behavior
that occurs in the work environment, then workplace violence can
take many forms. According to the FBI, the consensus among oc-
cupational safety specialists is that violence requires attention to
more than a physical attack. Homicides, as well as other physical as-
saults, are on a continuum that includes domestic violence, stalking,
threats, harassment, bullying, emotional abuse, intimidation and
any other type of conduct that can create anxiety or fear in the work-
place. These types of behavioral events are as much of the workplace
violence problem as the physical assault.
As previously noted, the FBI has identified four major catego-
ries, or types of workplace violence. These types are:
• Criminal outsider;
• Client;
• Co-worker; and
• Domestic partner.
THE IMPACT OF WORKPLACE VIOLENCE
Workplace violence has an all-pervasive effect on a business,

the community it serves, and the country as a whole. The economic,
social, psychological impact that a violent act has on all stakeholders
is not only measured in terms of financial loss, but it can be mea-
sured in terms of human loss as well. Like any other form of violent
crime, workplace violence has its victims. But unlike most other
violent crimes, workplace violence leaves a company, its business
41
operations and its employees with the collateral damage of distrust,

loss of security and fear in its path. In that sense, all stakeholders
have a vested interest in preventing violence.
STAKEHOLDER RESPONSIBILITIES
The success of an organization’s violence prevention initiatives

depends upon the commitment made and actions taken by employ-
ers, business owners, employees and the community, in general. It is,
in all cases, an issue of shared responsibilities.
Who is responsible for the safety of employees and staff of a
company/industry? All employees involved share in the respon-
sibility for maintaining a safe work environment. The following
section, outlined by the United States Department of Agriculture
(USDA) provides a more detailed description of the responsibilities
of various persons or offices including:
• Employers;
• Employees;
• Managers and Supervisors;
• Department Heads;
• Human Resources Staff;
• Employee Assistance Program Counselors;
• Union Employee Organizations;
• Facilities Staff;
• Security Staff;
• Law Enforcement Agencies;
• Occupational safety and criminal justice agencies ;
• Medical, Mental Health and Social Service Communities;
• Conflict Resolution Offices; and
• Legislators, policymakers and the legal community.
Employer Responsibilities
Employers have the legal and ethical obligation to provide a
safe and healthful working environment for its employees free from
threats and violence. The actions that an employer and the company
can take include:
Workplace Violence—What’s at Stake 43
• Adopting a workplace violence policy prevention program;

• Communicating the policy and program to employees;
• Providing regular training in preventive measures for all new
and current employees, supervisors and managers;
• Supporting, not punishing, victims of workplace or domestic
violence;
• Adopting and practicing fair and consistent disciplinary proce-
dures;
• Fostering a climate of trust and respect among workers;
• Fostering a climate of trust and respect between employees and
management; and
• Seeking advice and assistance from outside resources, includ-
ing threat-assessment psychologists, psychiatrists and other
professionals, social service agencies and law enforcement as
needed.
Employee Responsibilities
Employees have the right to expect a work environment that
promotes safety from violence, threats and harassment. Employees
can actively contribute to preventive practices by doing the follow-
ing:
• Accepting and adhering to an employer’s preventive polices
and practices;
• Becoming aware of and reporting violent or threatening behav-
ior by coworkers or other warning signs;
• Following procedures established by the workplace violence
prevention program, including those for reporting incidents;
• Becoming familiar with the company policy regarding work-
place violence;
• Accepting their responsibility for securing their own work-
place;
• Questioning and/or reporting strangers to supervisors;

• Becoming aware of any threats, physical or verbal, and/or any
disruptive behavior of any individual and report such to super-
visors;
• Familiarizing themselves with the procedures for dealing with
workplace threats and emergencies;
• Not confronting threatening individuals; and
• Taking all threats seriously.
Manager and Supervisor Responsibilities

Responsibilities of the management and supervisory team in-
clude:
• Informing employees of company policies and procedures;

• Ensuring that employees know specific procedures for dealing
with workplace threats and emergencies including:
— How to contact police;
— How to contact fire; and
— How to contact other safety and security personnel.
• Ensuring that employees with special needs are aware of emer-
gency evacuation procedures and have assistance, as necessary,
regarding evacuation situations;
• Responding to potential threats and escalating situations by
utilizing proper resources from the following:
— Local law enforcement and medical services;
— Human resources staff; and
— The Employee Assistance Program, if available.
• Taking all threats seriously; and
• Checking prospective employees’ background prior to hiring.
Department Head Responsibilities

Department head responsibilities include:
• Ensuring that the company’s workplace prevention policy is

available to employees;
• Making certain that employees are aware of the policies, proce-
dures and instructions in the company policy;
• Guaranteeing that safety and law enforcement personnel have
completed an on-site review of the safety and security of the
building and offices;
• Providing adequate resources for employee training and
awareness;
• Verifying that performance standards of appropriate staff re-
flect the importance of workplace safety and security; and
• Providing for briefings on workplace violence at staff meetings.
Human Resources Staff Responsibilities

The human resources staff is responsible for providing for su-
pervisory training that includes basic leadership skills such as:
• Setting clear standards of conduct and performance;

• Addressing employee problems promptly;
• Using the probationary periods, performance counseling, disci-
pline, and other management tools conscientiously;
• Providing technical expertise and consultation to help supervi-
sors determine what course of administrative action is most
appropriate in specific situations;
• Determining whether disciplinary action should be taken; and
• Helping supervisors determine proper reasonable accommoda-
tion.
Employee Assistance Program Counselor Responsibilities

For those companies that have an Employee Assistance Pro-
gram (EAP) in place, the responsibilities of the program counselors
involve providing short-term counseling and referral services to
employees at no cost. The program counselors also help in the pre-

vention of workplace violence through:
• Early involvement in organizational change;

• Training employees in dealing with angry co-workers and cus-
tomers, conflict resolution and communication skills;
• Training supervisors to deal with problems as soon as they sur-
face without diagnosing the employee’s problem;
• Consulting with supervisors to identify specific problem areas;
• Developing action plans to resolve problems in the early stages;
• Encouraging employees to contact the EAP, if available, for in-
dividual counseling;
• Consulting with incident response teams when a potential for
violence exists or an actual incident is reported; and
• Participating in critical incident stress debriefing teams in the
event of a violent situation.
Union/Employee Organization Responsibilities

Since unions play an important role in the defense of wages
and other contractual rights, unions should regard workplace safety,
including safety from violence, as an employee right. The duties of a
union/employee organization should include:
• Supporting employers’ violence prevention policies and prac-

tices;
• Partnering in the design and execution of violence prevention
programs;
• Cooperating with and contributing to training efforts;
• Being familiar with and actively support policy and contract
language on workplace violence prevention;
• Staying alert to security issues and potential threats;
• Being aware of procedures for addressing workplace threats

and emergencies;
• Working closely with all levels of management to ensure that
employees are up-to-date on company workplace violence pre-
vention policy and procedures; and
• Participating fully with management in all phases of workplace
violence prevention and response, including membership on
threat assessment and incident response teams.
For those companies with an EAP, the union or employee or-

ganization must because familiar with the EAP, including the pro-
cedures/policy regarding the ability of designated union officials to
make employee referrals to the EAP.
Facilities Staff/Securities Staff Responsibilities

Since facility personnel serve as their company’s expert on se-
curity matters and as liaison with law enforcement, the responsibili-
ties of the facilities/security staff include:
• Conducting regular threat assessment survey of the facility to

determine the level of security preparedness and any gaps in
the security posture;
• Serving as the facility security expert;
• Keeping management advised of the risk of violence;
• Keeping management advised of the security gaps identified
by threat assessments and the means to close these gaps, in-
cluding the latest technologies;
• Working with facility personnel to improve the security levels
of the buildings, grounds, parking lots, etc.; and
• Training facility personnel in security measures and violence
prevention techniques.
Facilities personnel should work closely with security staff to

ensure that the buildings, areas and grounds are safe for employees
and visitors. This includes not only keeping buildings and grounds
well maintained but participating with security personnel in threat
assessment surveys, keeping management informed of the status of
the physical plan, and providing budget request with justification
for security upgrades.
Security Staff Responsibilities

The responsibilities of the security staff include:
• Identifying in advance the types of situations that may occur

and when and how law enforcement should be notified of an
incident;
• Indicating whether law enforcement officers have jurisdictional

restrictions;
• Identifying alternative law enforcement agencies that may be

able to provide assistance;
• Indicating whether law enforcement officers have arrest au-

thority;
• Providing threat assessment personnel who can assist the com-

pany in determining the best way to protect personnel;
• Suggesting safety and security measures that need to be imple-

mented; and
• Arranging for all-employee briefings or training on specific
workplace violence issues.
LAW ENFORCEMENT AGENCIES
Previously, law enforcement usually became involved after a

crime occurred. However, police and other law enforcement agen-
cies now place greater emphasis on prevention and response to
threats and minor incidents. Those changes have placed greater em-
phasis in prevention and responding to threats and minor incidents,
rather than the traditional view that police become involved only af-
ter a crime has occurred and that serious effort and police resources
should be reserved for serious offenses. This current law enforce-
ment approach can be applied in workplace situations as well. For
example, this approach can:
• Reach out to employers, especially to smaller employers that
do not have the resources to maintain their own security staff;
• Establish contact and regular consultation with mental health

and social service providers;
• Help to set up a system for assisting employers in background

checks, workplace site reviews, evacuation plans, etc.;
• Assist employers in developing prevention programs and as-

suring that threats or less serious incidents will include a re-
sponse;
• Train officers in threat assessment and/or establish a special-

ized threat assessment unit; and
• Train officers in relevant laws (e.g., harassment and stalking)

and response procedures for workplace problems.
Occupational Safety and Criminal Justice Agencies

Federal and state agencies have an important role in meeting
the workplace violence challenge. Their efforts include:
• Improving monitoring;
• Refining methods of calculating the incidents and costs of

workplace violence;
• Conducting public awareness campaigns to inform employers

about preventive strategies; and
• Developing strategies that can improve violence prevention in

smaller companies and for lower-paid, lower-status workers.
Medical, Mental Health, and Social Service Communities

These agencies also have a valuable role to play. Their contribu-
tions can include:
• Refining and improving threat assessment methods and inter-

vention strategies;
• Reaching out to employers both large and small to educate the
employers about the risks involved;
• Offering services for problem employees;
• Offering services in violence prevention planning; and
• Conducting additional research in such areas as:
— Detecting warning signs;
— Treating potentially dangerous people;
— Providing workplace violence prevention training;
— Monitoring and measuring incidents;
— Providing support services for victims; and
— Helping employees after a traumatic event.
Legislators, Policymakers and the Legal Community
Legislators, policymakers and the legal community can review

legal questions raised by efforts to prevent and mitigate threats and
violence. They might consider also whether adjustments to gun
laws, laws governing privacy and defamation, the Americans with
Disabilities Act (ADA), wrongful termination, and other legal areas
have to be made to facilitate preventive efforts while still protecting
individual rights.
Since organizations vary, each company will need to formulate
and develop specific plans that identify the resources available to
them. The largest companies and organizations can tap the exper-
tise from their own human resources, legal, and internal security
departments. Smaller companies and organizations may have to tap
into the expertise of outside assistance from local police and human
service organizations. However, in any and all cases, collaboration
with inter- and intra-organizational entities will help to ensure a safe
workplace.
Sources
United States Department of Agriculture, The USDA Handbook on Workplace
Violence Prevention and Response. Publication Number 2008-10-09, October
2001.
U.S. Department of Justice, Federal Bureau of Investigation, Critical Incident
Response Group. Workplace Violence: Issues in Response. National Center
for the Analysis of Violent Crime, FBI Academy, Quantico, 2002.
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statis-
tics, Special Report, Workplace Violence, 1993-2009, March 2011.
U.S. Bureau of Labor, Bureau of Labor Statistics, Census of Fatal Occupational
Injuries, 2011.
Chapter 4
Developing the Program

The goal of any violence prevention program is to encourage
employers to identify the risks of workplace violence and to imple-
ment corrective measures. Such was the purpose of the voluntary
generic safety and health program management guidelines that
OSHA published in 1989, and the recommendations for late-night
retail establishments that the Agency published in 1998.
While these guidelines do not necessarily serve as a strategy
that is appropriate for all business types and organizations, the
guidelines do describe those elements of violence prevention that
are key to the company’s written safety plan. These basic elements
of an effective safety and health management program also apply to
the prevention of workplace violence. They are:
• Management commitment and work involvement;

• Worksite analysis;
• Hazard prevention and control; and
• Safety and health training.
While OSHA encourages employers to develop a written

program for workplace violence prevention, the extent to which
the components of the program are in writing is less important
than how effective the program is in practice. By implementing
appropriate hazard prevention and control measures, and ensur-
ing management and worker involvement, employers will take the
most critical steps in protecting their workplace from violent acts.
A written statement of policy serves as the touchstone for the many
separate plans, procedures and actions required for an effective
prevention program.
53
MANAGEMENT COMMITMENT AND

WORKER INVOLVEMENT
Management commitment and worker involvement are both

complimentary and essential to effective prevention.
By obligating resources—both human capital and financial—
management provides the motivation and ability to effectively
address workplace violence. Management commitment should in-
clude:
• Demonstrating organizational concern for worker emotional

and physical safety and health, including medical and psycho-
logical counseling and debriefing for personnel who experience
or witness assaults and other violent incidents;
• Exhibiting equal commitment to the safety and health of front-
line workers, employees, clients, tenant occupants and retail
store patrons;
• Assigning responsibility for the various aspects of the work-
place violence prevention program to ensure that all managers,
supervisors and workers understand their obligations;
• Allocating appropriate authority and resources to all respon-
sible parties;
• Maintaining a system of accountability for involved managers,
supervisors and workers;
• Supporting and implementing appropriate recommendations
from safety and health committees; and
• Working constructively with other parties, including landlords,
lessees, local police and other public safety agencies to improve
security in and around the worksite.
Worker involvement in violence prevention is critical. Front

line workers are often the most knowledgeable of the procedures
and environment within the company/business. Employees’ expe-
riences can help to identify practical solutions to safety challenges.
Developing the Program 55
The more inclusive the approach to developing a workplace violence

prevention plan, the more comprehensive and effective it will be.
In addition, employees who are engaged in violence prevention
programs are more likely to support them and ensure their effective-
ness.
Employee involvement means the employee will:
• Contribute to the development of procedures that address
safety and security concerns;
• Respond to surveys on these issues;
• Understand and comply with the workplace violence preven-
tion program and safety and security measures;
• Report violent incidents promptly and accurately;
• Participate in safety and health committee teams that receive
reports of violent incidents or security problems;
• Make facility inspections and respond with recommendations
for corrective strategies; and
• Take part in training programs and/or on-the-job experiences
that cover techniques to recognize escalating agitation, aggres-
sive behavior or criminal intent.
WORKSITE ANALYSIS
A worksite analysis involves a step-by-step assessment to iden-

tify environmental and operational risks for violence. The analysis
entails reviewing specific procedures or operations that contribute
to hazards, identifying areas where hazards may develop and per-
forming periodic safety audits. Since the hazard analysis is the foun-
dation for the violence prevention programs, it is important for the
employer to carefully consider the person/persons or team that will
conduct the analysis. If a team is used, it should include representa-
tives from the following:
• Senior management;
• Operations;
• Workers;
• Security;
• Occupational safety and health personnel;
• Legal; and
• Human resources staff.
A small business may only need to assign the duty to a single

worker or consultant. The recommended program for worksite
analysis includes, but is not limited to:
1• Analyzing and tracking records;

• Conducting screening surveys; and
• Analyzing workplace security.
RECORDS REVIEW AND ANALYSIS
When beginning a hazard analysis, the management or business

owner should review several years of previous business experiences.
Documents that should be collected and examined include any medi-
cal, safety, and worker’s compensation and insurance records. These
records are needed to identify any incidents of workplace violence.
The review also should include the OSHA Log of Work-Related
Injuries and Illnesses, OSHA Form 300, (Figure 4-1), if required, as
well as OSHA Form 300A, Summary of Work-Related Injuries and Ill-
nesses (Figure 4-2); and OSHA Form 301, Injury and Illness Incident
Report, (Figure 4-3). (N.B. Employers with 10 or fewer employees are
exempt from maintaining an OSHA injury and illness log. Businesses
classified in specific low-hazard retail, service, real estate, finance, or
insurance are also exempt from keeping injury and illness records). In
addition, worker and police reports of incidents or near-incidents of
assaults or aggressive behavior should be analyzed.
Employers with more than one worksite should also review
each location’s history of violence. By establishing the frequency and
severity of incidents, a baseline for measuring improvements can
be identified. And by using several years of data, employers should
gain a clearer understanding of existing hazardous trends.
Figure 4-1. Work-Related Injuries and Illnesses, OSHA Form 300

57
58
Figure 4-2. OSHA Form 300A, Summary of Work-Related Injuries

59
Figure 4-2a. Optional Worksheet

60
Figure 4-3. OSHA Form 301, Injury and Illness Incident Report
CONDUCTING SCREENING SURVEYS
Finding only a few documented cases of workplace violence

should not be dismissed and seen as a green light for a safe work-
place. Incidents may go unreported or undocumented and therefore
management may not be aware of low intensity incidents or threats
of violence that workers experienced. Therefore, using a worker
questionnaire or survey about workplace violence issues can be use-
ful in identifying the following:
• If there have been assaults on workers by customers;

• If other issues/crimes have occurred such as shoplifting;
• If employees have experienced threats or harassment while on
duty;
• If firearms were used and/or carried;
• The number of employees on duty at the time of the incident;
• The activity of the employees before and during the incident;
• If preventive measures were in place at the time of the incident;
• If preventive measures were implemented;
• Where the incidents occurred;
• The frequency of the incidents; and
• If the police were called.
Surveys are also useful for soliciting employees’ ideas on the

potential for violent incidents. Surveys can help identify or con-
firm the need for improved security measures. Detailed screening
surveys can help pinpoint tasks that put workers at risk. Surveys
should be conducted at least annually; when business operations
change; or workplace violence incidents occur. These surveys can
help employers identify new or previously unknown risk factors
in work practices, procedures, or controls. Follow-up and feedback
by the employer concerning the results of the survey and how it
impacts current or future procedures should be conveyed to the em-
ployee as soon as possible.
Surveys may be conducted and analyzed by independent con-

tractors such as safety/health professionals, law enforcement/se-
curity specialists and insurance safety auditors. Their expertise and
advice can provide a fresh “set of eyes” to improve and/or enhance
a violence prevention program.
WORKPLACE SECURITY ANALYSIS
The designated team member, along with a member of local law

enforcement, employee or consultant should, with management’s
encouragement and approval, inspect the worksite periodically to
identify hazards, conditions, operations and situations that could
expose workers to violence. An initial walkthrough survey should
be conducted to identify risks and establish a baseline. To find areas
requiring further evaluation, the team or coordinator should analyze
incidents, including the characteristics of assailants and victims.
Incident descriptions should include an account of what happened
before the incident; during the incident; and the relevant details of
what happened after the incident. When possible, police reports and
recommendations should be obtained.
The team should also identify jobs, locations, processes and
procedures that put workers at the greatest frequency and time
when the risk of violence is greatest. High risk factors such as types
of store patrons or environmental factors, building layouts, interior
and exterior lighting, communication systems such as telephones,
and the location of installed security systems should be noted.
Included in the workplace security analysis is the evaluation of
the effectiveness of existing security measures, their implementation
and reduction or elimination of risk factors. If security measures are
not being implemented, the analysis should determine the cause of
why it is not implemented.
HAZARD PREVENTION AND CONTROL
With an effective hazard workplace violence prevention

program employers are better able to protect workers and avoid
workplace incidents. A systematic worksite analysis will identify

current hazards. Employers or their designees should then develop
the measures needed to reduce or eliminate the likelihood of violent
incidents. These measures should include engineering, procedural,
and/or administrative changes to reduce or eliminate the likelihood
of violent incidents.
Employers will need to use a combination of controls to manage
the hazards identified through the hazard analyses. However, the ef-
fectiveness of each type of approach should be carefully assessed.
Engineering controls are considered the most effective because they
make physical improvements without any dependence on human
behavior. If engineering controls are not feasible, employers should
consider procedural and administrative changes. Once prevention
and control measures are in place, employers should ensure that
procedures are followed and that workers are supported.
MINIMIZING RISK
Engineering Controls and Workplace Adaptations

Engineering controls remove the hazard from the workplace
or create a barrier between the worker and the hazard. Several
measures described below can effectively prevent or control work-
place hazards at retail establishments. The selection of any measure
should be based on the hazards identified in the workplace security
analysis.
Since late-night retail businesses are considered a high risk for
workplace violence, employers should reduce the risk of violence by
improving visibility and surveillance, controlling customers’ access,
and limiting the availability of cash. Such measures could include:
• Limiting window signs to low or high locations; keeping shelv-

ing low allows employees to see incoming customers and po-
lice can observe what is occurring from the outside of the store;
• Ensuring that customer service and cash register areas are vis-
ible from outside the establishment;
• Placing curved mirrors at hallway intersections or concealed

areas;
• Maintaining adequate lighting inside and outside the establish-
ment;
• Installing video surveillance equipment and closed circuit TV;
• Using door detectors alert employees when someone enters the

store;
• Having height markers on exit doors to aid in the description of

the assailants;
• Installing and regularly maintaining alarm systems and other se-

curity devices, panic buttons, handheld alarms or noise devices,
cellular phones and private channel radios;
• Arranging for a reliable response system when an alarm is trig-

gered;
• Installing fences and other structures to direct the flow of cus-

tomer traffic into and around the store;
• Controlling access to the store with door entry (buzzer) systems;

• Installing physical barriers such as bullet-resistant enclosures
with pass-through windows between customers and employees;
and
• Using drop safes to limit the availability of cash; and
• Posting signs stating that employees have limited access to cash.
Administrative and Work Practice Controls

Administrative and work practice controls can help prevent
violent incidents. Policies are needed to ensure that engineering
controls are implemented and used effectively. Effective engineering
controls for employers should:
• Integrate violence prevention activities into daily procedures,

such as checking lighting, locks, and security cameras;
• Require workers to use the drop safes and only keep a minimal
amount of cash in each register;
• Develop and implement procedures for the correct use of phys-
ical barriers such as enclosures and pass-through windows;
• Establish a locked door policy;
• Require workers to keep doors locked before and after official
business hours;
• Require workers to lock doors used for deliveries and garbage
removal when not in use;
• Require that deliveries be made during normal daytime opera-
tions; and
• Develop and implement emergency procedures for workers to
use in the event of a robbery or security breach – such as calling
the police or triggering an alarm.
Other administrative and work practice controls, independent
of engineering controls include:
• Prohibiting transactions with large bills (over $20). If this is not
feasible, cash levels should be kept as low as practical. Employ-
ees should not carry business receipts unless it is absolutely
necessary;
• When possible, increasing staffing levels at stores with a his-
tory of robbery or assaults, or located in high crime areas;
• Using the “buddy system,” to promote personal safety of em-
ployees walking to garbage and outside storage areas;
• Establishing rules and practices to ensure that employees can
walk to garbage areas and outdoor storage areas without in-
creasing their risk of assault;
• Establishing liaison with local police and state prosecutors.
• Reporting all incidents of violence;
• Giving police physical layouts of facilities to expedite investi-
gations;
• Requiring workers to report all assaults or threats to a supervi-

sor or manager;
• Keeping logbooks and reports of incidents; this will help to
determine the actions necessary to prevent recurrences;
• Advising workers of company procedures for requesting police
assistance or filing charges when assaulted;
• Providing management support during emergencies;
• Responding promptly to all complaints;
• Setting up a trained response team to respond to emergencies;
• Use properly trained security officers who follow written secu-

rity procedures to deal with aggressive behavior;
• Discouraging employees from wearing necklaces or chains,

preventing possible strangulation in confrontational situations;
• Providing staff members with security escorts to parking areas

in evening or late hours; and
• Ensuring that parking areas are highly visible, well lit and
safely accessible to the building.
Administrative controls work only if they are followed. Em-

ployers should monitor workers regularly to ensure that proper
work practices are being used. Employers should also provide pe-
riodic constructive feedback to workers to ensure that they under-
stand and appreciate the importance of these procedures.
EMPLOYER RESPONSES TO INCIDENTS OF VIOLENCE
Post-incident responses and evaluations are essential for an

effective violence prevention program. Policies should include
standard operating procedures for management and workers to fol-
low after the occurrence of a violent incident. Response procedures
should ensure that the incident is properly investigated; that work-
ers receive the appropriate attention; and, in the event of injury,

workers receive prompt medical treatment. Procedures may include
the following:
• Providing prompt first aid and emergency medical treatment

for injured workers, including transportation to the local emer-
gency medical facility;
• Reporting incidents to the police or notifying other authorities
as required by applicable laws and regulations;
• Securing the premises to safeguard evidence so that police or
safety authorities may investigate properly;
• Preparing an incident report immediately so that details may
not be forgotten; and
• Informing management about the incident.
Many times victims of workplace violence suffer a variety of con-
sequences in addition to their physical injuries. They may experience:
• Feelings of incompetence, guilt, powerlessness;
• Fear of criticism by supervisors or managers;
• Fear of returning to work;
• Short- and long-term psychological trauma; and
• Changes in relationships with coworkers and family.
Therefore, a strong follow-up program for these workers will

not only help them to deal with these problems, but also to help pre-
pare them confront or prevent future incidents of violence.
The post incident response plan should include types of assis-
tance for the employees/workers affected by the violence incident.
Some of the assistance available include trauma crisis counseling,
critical incident stress debriefing or employee assistance programs.
Other means of assistance includes referrals to certified employee
assistance professionals, psychologists, psychiatrists, clinical nurse
specialists, social workers or referral to an outside specialist.
These individuals or groups are well trained and have a good

understanding of the issues and consequences of assaults and other
aggressive, violent behavior. Appropriate and promptly rendered
post-incident debriefings and counseling reduce acute psychologi-
cal trauma and general stress levels among victims and witnesses.
In addition, this type of counseling educates staff about workplace
violence and positively influences workplace and organizational
cultural norms to reduce trauma associated with future incidents.
TRAINING FOR ALL EMPLOYEES
An effective training program with established policies and

procedures ensures that all staff members become aware of potential
security hazards and how to protect themselves and their cowork-
ers. The concept that violence should be expected but can be avoided
or mitigated through proper precautionary preparation should be
conveyed to all employees including supervisors, managers, front-
line workers, upper management and staff. Workers need to know
the specific hazards associated with their jobs and worksite to help
them minimize their risk of assault and injury. Training should focus
on the following specifics: worksite-specific hazards, instructions on
how to control these hazards; guidance on how to limit worker in-
tervention during workplace altercations except when enough staff
or emergency response teams and security personnel are available.
Specific training topics include:
• An overview of the potential risk of assault;

• The workplace violence prevention policy;
• Operational procedures, such as cash handling rules, designed
to reduce risk;
• Proper use of security measures and engineering controls de-
signed to reduce risk;
• Early recognition of escalating behavior or recognition of warn-
ing signs of situations that may lead to assaults;
• Behavioral strategies such as conflict resolution and aggression

management techniques to defuse tense situations and reduce
the likelihood of a violent outcome;
• The location and operation of safety devices such as alarm
systems, along with required maintenance schedules and pro-
cedures;
• Policies and procedures for reporting the incident to the proper
authorities;
• Policies and procedures for providing and maintaining record-
keeping;
• Policies and procedures for obtaining medical care, counseling,
workers’ compensation or legal assistance after a violent epi-
sode or injury;
• Specific instructions on how to respond to a robbery such as
turning over money or valuables without resistance; how to
respond to attempted shoplifting; and
• Emergency action procedures to be followed in the event of a
robbery or violent incident.
Employers should provide required training at least once a

year. Training should be tailored to the differing job responsibili-
ties, levels and abilities of the workers. Retraining should also be
provided for workers who forget safety measures. Newly hired,
reassigned, temporary and visiting workers should receive the same
training as permanent staff. Additionally, establishments with high
worker turnover may need to provide training more frequently.
Training for Supervisors/Managers and Security Personnel

Once training is completed supervisors and managers should
be well equipped to recognize a potentially hazardous situation;
make any necessary changes in the physical worksite, policies or
procedures and to reduce or eliminate hazards. When supervisors
and managers recognize a high risk situation, workers can be en-
sured that they will not be placed in assignments that compromise
their safety.
In addition, security personnel will be well equipped in the

specific needs of the worksite, including handling aggressive and
abusive patrons, personnel and visitors and should be well equipped
in defusing hostile situations.
MAINTAINING RECORDS
Record keeping is a necessary component of the violence pre-

vention program. It is used to determine its overall effectiveness
over time and to identify any deficiencies in the program. Good re-
cords help employers determine the severity of the problem; evalu-
ate methods of hazard control; identify training needs; and to deter-
mine the program’s success. Records can be especially useful to large
organizations and members of a business group or trade association
who “pool” data. Several processes can help identify problems and
present solutions for an effective program. These processes include
trend analysis, records of injuries, illnesses, accidents, assaults, haz-
ards, corrective actions, histories and training.
Just as employers tailor their training need to job specific work-
ers, employers should tailor their record-keeping practices to the
needs of their violence prevention program. Maintaining records
enables employers to monitor ongoing efforts to deter workplace
violence; to determine if a violence prevention program is working;
and to identify ways to improve it.
As noted earlier, there are several important records employers
should maintain. These include:
• OSHA Form 300, the OSHA Log of Work-Related Injuries and

Illnesses. Employers who are required to keep this log must
record any new work-related injury that results in death, days
away from work, days of restriction or job transfer, medical
treatment beyond first aid, loss of consciousness or a significant
injury diagnosed by a licensed healthcare professional. Injuries
caused by assaults must be entered on the log if they meet the
recording criteria;
• Medical reports of work injury and supervisors’ reports for

each recorded assault. These records should describe the type
of assault, such as an unprovoked sudden attack or patron-to-
patron altercation; who was assaulted; and all other circum-
stances of the incident. The records should include a descrip-
tion of the environment or location, potential or actual cost, lost
work time that resulted and the nature of injuries sustained.
These medical records are confidential documents and should
be kept in a locked location under the direct responsibility of a
healthcare professional;
• Records of incidents of abuse, verbal attacks or aggressive be-

havior that may be threatening, such as pushing or shouting
and acts of aggression toward other clients. These records may
be kept as part of an incident report. Employers should ensure
that the affected department evaluates these records routinely;
• Documentation of minutes of safety meetings, records of hazard

analyses and corrective actions recommended and taken; and
• Records of all training programs, attendees and qualification of

trainers.
PROGRAM EVALUATION
An important component of an effective training program is

evaluation. As part of their overall program, employers should eval-
uate their safety and security measures. Responsible parties, includ-
ing managers, supervisors and workers, should reevaluate policies
and procedures on a regular basis to identify deficiencies and take
corrective action. The program should be reviewed for its content,
methods and the frequency of training, and with each incident,
evaluate its success. These program evaluations should include
input from the supervisor and worker interviews; testing results,
observations, and review of the reports of individuals’ behavior in
the violent threatening situation.
Management should share workplace violence prevention

evaluation reports with all workers. Any changes in the program
should be discussed at regular meetings of the safety committee,
managers, supervisors, union representatives and/or other worker
groups. All reports should protect worker confidentiality either by
presenting only aggregate data or by removing personal identifiers
if individual data are used. The processes involved in an evaluation
should include:
• Establishing a uniform violence reporting system and regular

review of reports;
• Reviewing reports and minutes from staff meetings on safety

and security issues;
• Analyzing trends and rates in injuries, illnesses or fatalities

caused by violence relative to initial or “baseline” rates;
• Measuring improvement based on lowering the frequency and

severity of workplace violence;
• Keeping up-to-date records of administrative and work prac-

tice changes to prevent workplace violence;
• Evaluating the effectiveness of the changes;
• Surveying workers to determine the effectiveness of job or

worksite changes; security measures taken or new systems in-
stalled;
• Keeping up-to-date with new strategies available that address

violence in retail establishments;
• Complying with OSHA and State requirements for recording

and reporting injuries, illnesses and deaths; and
• Requesting periodic law enforcement or outside consultant

review of the worksite for recommendations on improving
worker safety.
SUMMARY
Workplace violence is a major occupational safety and health is-

sue in many industries, especially the retail trade. OSHA’s voluntary
recommendations offer a systematic framework to help employers
protect workers from risks of injury and death from occupationally
related violence. By treating workplace violence as a preventable
hazard, employers can develop practical, effective strategies to pro-
tect their workers from serious risk and provide a safe and healthful
working environment.
Sources
Centers for Disease Control and Prevention, The National Institute for Occupa-
tional Safety and Health, NIOSH, Workplace Violence Prevention Strategies
and Research Needs, NIOSH Publication: No. 2006-144.
Guidelines for Preventing Workplace Violence for Health Care and Social Ser-
vice Workers, OSHA Publication: 3153, 2009.
Injury and Illness Recordkeeping Forms, 300, 300A, 301.
Recommendations for Workplace Violence Prevention Programs in Late-Night
Employers, OSHA Publication: 3153-12R, 2009.
Chapter 5
Developing the Plan

The first step in developing the company’s workplace violence
prevention program is the policy statement.
THE POLICY STATEMENT
The written policy statement articulates the standard for ac-

ceptable workplace behavior. As such, it should include the follow-
ing:
• The types of offenses that contribute to workplace violence in-

cluding physical violence, harassment, intimidation and other
disruptive behavior;
• The types of incidents involving individuals: employee to em-
ployee, and client/customer/non-employee to employee inci-
dents;
• The responsibility of employees for maintaining a safe work
environment;
• The company response to all reported incidents;
• The company actions to stop inappropriate behavior; and
• The assurance of management support.
In summary, the statement should affirm the company’s com-

mitment to a safe workplace, the employees’ obligation to behave
appropriately on the job, and the employer’s commitment to take
action on any employee’s complaint regarding harassing, threaten-
ing, bullying and violent behavior. It should also include an outline
75
of the disciplinary actions that may be taken if violations of the

policy should occur. The written statement should be distributed to
employees at all levels, including senior management.
The statement should also affirm the policy that physical vio-
lence is unacceptable and that bullying, harassment, weapons pos-
session and threatening behavior are prohibited and all such actions
will be vigorously addressed by management. The FBI provides a
sample written policy statement.
Developing the Plan 77
PREVENTIVE PRACTICES
Measures that can be used to prevent violent behavior can in-

clude security preparations, pre-employment screening, and identi-
fying problem situations and risk factors with current employees.
Pre-employment screening is an effective way of identifying and
screening out potentially violent people before the hiring process.
It is an obvious means of preventing workplace violence. A note
of caution; pre-employment screening practices must be consistent
with privacy protections and anti-discrimination laws.
A thorough background check can be expensive and time-
consuming. Therefore, the extent of pre-employment scrutiny will
depend upon the following:
• The level and/or type of job being filled;

• The policies and resources of the prospective employer; and
• The legal requirements of each state.
Risk Factors for Current Employees. Although no one incident

alone can indicate whether an employee might become violent, there
are problem situations/circumstances that could heighten the risk
of violence. These incidents may be a particular event, a particular
employee, or the workplace itself. According to the FBI, risk factors
associated with potential violence include:
• Personality conflicts between coworkers or between worker

and supervisor;
• Mishandled termination or disciplinary action;
• Bringing weapons onto a work site;
• Drug or alcohol use on the job;
• Grudge over a real or imagined grievance; and
• The employee’s personal circumstances such as the breakup of
a marriage or romantic relationship, family conflicts, financial
or legal problems and/or emotional disturbances.
Other problematic behavior can include but is not limited to:

• Increasing belligerence;
• Ominous, specific threats;
• Hypersensitivity to criticism;
• Recent acquisition/fascination with weapons;
• Apparent obsession with a supervisor or coworker or employee
grievance;
• Preoccupation with violent themes;
• Interest in recently publicized violent events;
• Outbursts of anger;
• Extreme disorganization;
• Noticeable changes in behavior; and
• Homicidal/suicidal comments or threats.
Although a suicide threat may not be seen as threatening to

others, it is still a dangerous sign. Some extreme violent acts are
in fact suicidal—wounding or killing someone else in the expecta-
tion of being killed—suicide by cop. Additionally, many workplace
shootings often ends in the suicide of the offender.
Some factors in the workplace environment, although not de-
finitively studied, can contribute to workplace violence. These nega-
tive and stress inducing factors may be responsible for problematic
behavior:
• Understaffing that leads to compulsory overtime and job over-

load;
• Poorly defined job tasks and responsibilities that lead to em-
ployee frustrations;
• Downsizing or reorganization;
• Labor disputes and poor labor-management relations;
• Poor management styles such as:

— Over-monitoring on the part of the supervisor, manager,
etc.;
— Arbitrary or unexplained orders;
— Correcting or reprimanding in front of other employees;
— Inconsistent discipline;
— Inadequate or poorly trained, poorly motivated security
force;
— A lack of employee counseling; and
— A high injury rate or frequent grievances may be clues to
problem situations in a workplace.
SECURITY MEASURES
Maintaining a physically safe workplace is part of any good

prevention program. There are a variety of security measures to help
ensure safety. These include:
• Issuing employee photo identification badges;

• Providing on-site guard services and/or individually coded
card keys for access to buildings and areas within buildings ac-
cording to individual needs; and
• Providing assistance in registering, badging and directing visi-
tors in larger facilities.
WORKPLACE SECURITY
Whether a company has its own in-house security staff,

contracts with private security firms, or depends upon local law
enforcement, a plan should be in place for a workplace violence
prevention program involving the coordination of all these units.
Planning a program for the prevention of workplace violence begins
by working with and coordinating the services of the various law
enforcement organizations.
Meeting with the local police department can help establish a
procedure regarding law enforcement response in the event of an
incident or potential incident. Once a plan has been formulated and

coordinated between the company and local law enforcement, open
lines of communication should exist to avoid later misunderstand-
ings of which department—in-house, off-site or local law enforce-
ment—is responsible when an incident occurs.
In the initial planning stage, the law enforcement/security of-
ficers can determine the following:
• Identify the types of situations they can address and when and
how notification of an incident takes place;
• Indicate whether their officers have arrest authority;
• Identify jurisdictional restrictions;
• Identify alternative law enforcement agencies that can provide
assistance;
• Identify threat assessment professionals who can assist in the
protection of threatened employees;
• Explain anti-stalking laws;
• Explain how and when to obtain restraining orders;
• Suggest security measures to be taken for specific situations;
• Advise on what evidence is necessary and how it can be col-
lected/recorded;
• Arrange for supervisory employee briefings or training on spe-
cific workplace violence issues such as:
— Personal safety and security measures;
— Types of incidents to report to law enforcement/security;
— Types of measures law enforcement/security may take to
protect employees;
— Suggestions on how to react to an armed attacker;
— Suggestions for dealing with angry customers or clients;
— Suspicious packages;
— Bomb threats;
— Hostage situations; and
— Telephone harassment and threats.
WORKPLACE VIOLENCE PREVENTION: TRAINING
Training is the single most important factor in any emergency

preparedness and planning effort. An effective workplace violence
prevention training program that emphasizes management’s com-
mitment to employee safety is an important component of a com-
pany’s disaster prevention plan. The training program must empha-
size that management will take a proactive approach to reported
incidents of threats, intimidation, harassment, etc.
The training program should inform employees that:
• Management will take reports of threats seriously;

• Incidents should be reported; and
• Management is committed to deal with the reported incidents.
As noted in Chapter 4, the training program should also em-

phasize that all employees should know how to report incidents
of violence, intimidation, threatening actions and other disruptive
behavior; and that all employees should know the procedures for
reporting incidents during a crisis or an emergency including the
phone numbers of the appropriate personnel.
Additionally, workplace violence prevention training for em-
ployees may also include the following topics:
• Explanation of the company’s workplace violence policy;

• Encouragement to report incidents;
• Ways of preventing or diffusing volatile situations or aggres-
sive behavior;
• How to deal with hostile persons;
• Managing anger;
• Techniques and skills to resolve conflicts;
• Stress management, relaxation techniques, wellness training; and
• Security procedures, e.g., the location and operation of safety
devices such as alarm systems.
Supervisory training for workplace violence prevention may also

include:
• Procedures for reporting incidents in which employees feel
threatened by anyone within or outside the organization;
• Skills in behaving compassionately and supportive towards
employees who report incidents;
• Skills in taking disciplinary actions;
• Basic skills in handling crisis situations; and
• Basic emergency procedures.
Designated members of the facility’s emergency response team

should be trained in two areas. First, those designated personnel
should be trained in how to respond to violent incidents and, second,
they should be trained in how to respond to threats/confrontations
before these incidents escalate. These organization’s designees should
be provided with a current employee/tenant listing in order to advise
employee/tenants in the event of an emergency situation. They should
also be trained in the procedures for employee/tenant accounting.
Accounting for personnel is not only a critical issue; it can
also be a difficult issue to address. Accounting for people after an
emergency occurs, can be compounded when other non-site person-
nel are occupying the building (e.g., contractors, subcontractors,
vendors, clients, etc.). For these reasons, a designated member of
the facility’s emergency response team should be charged with this
responsibility. Also, this person should have the additional responsi-
bility and authority to inform the police, fire and appropriate medi-
cal personnel of any known or suspected missing people.
The designated members of the facility’s emergency response
team should maintain ongoing discussions/dialogue with local au-
thorities updating and familiarizing them with any changes in evacu-
ation and emergency plans such as updated employee rosters, etc.
Employee Involvement. Employee participation is an important
component in the security process. Employees should be given op-
portunities to participate in frequent surveys that focus upon identi-
fying the potential for violent incidents and to identify any need for
improved security measures. For example, when work procedures

have changed or an incident of violence has occurred, it is the em-
ployee who can help identify new or previously unknown risk fac-
tors. Employee responses can also help identify jobs, locations, or
work situations where the risk of violence appears highest.
Workplace Violence Checklist OSHA

OSHA’s Workplace Violence Checklist (See Table 5-1) can be
used to identify training needs and to evaluate workplace security
hazards. Additionally, it can also be used to gauge employee under-
standing of training. Please note that “TRUE” indicates a potential
risk for serious security hazards:
ADDRESSING THREATS AND THREATENING BEHAVIOR
Dealing with threats and/or threatening behavior--detecting

them, evaluating them and finding a way to address them--may be
the single most important key to preventing violence and is an es-
sential component of a workplace violence prevention plan. Work-
place violence strategies must include measures to detect, assess,
and manage threats and behavior. Assessing threatening behavior
can be a difficult task, much more difficult than responding to an as-
sault or a homicide. The effects of a threat are subjective and subtle.
Usually there is no physical evidence. According to the FBI some
threats are not criminal and, therefore, are not subject to law enforce-
ment intervention and prosecution.
THREAT ASSESSMENT
Threat assessment is the process of determining the magnitude

of a potentially violent or stressful situation and providing a means of
intervention to diffuse the situation. Because of the uncertainty that an
act of violence will occur, the company or organization should respond
as if the threat is real and will be carried out. The first step in assessing
the credibility of the threat is to assess the credibility of the threat—has
this individual made threats previously; does the individual display
Table 5-1. Workplace Violence Checklist.
T F This industry frequently confronts violent behavior and assaults of

staff.
T F Violence has occurred on the premises or in conducting business.
T F Customers, clients, or coworkers use racial or sexual remarks, as-
sault, threaten, yell at, push or verbally abuse employees.
T F Employees are NOT required to report incidents or threats of vio-
lence, regardless of injury or severity.
T F Employees have NOT been trained by the employer to recognize and
handle threatening aggressive or violent behavior.
T F Violence is accepted as “part of the job” by some managers, supervi-
sors, and/or employees.
T F Access and freedom of movement within the workplace are NOT
restricted to those persons who have a legitimate reason for being
there.
T F The workplace security system is inadequate—i.e., door locks mal-
function, windows are not secure, and there are no physical barriers
or containments systems.
T F Employees or staff members have been assaulted, threatened, or ver-
bally abused by clients and patients.
T F Mediation and counseling services have NOT been offered to em-
ployees who have been assaulted.
T F Alarm systems such as panic alarm buttons, silent alarms, or person-
al electronic alarm systems are NOT being used for prompt security
assistance.
T F Alarm systems are NOT tested on a monthly basis to assure correct
function.
T F Security guards are NOT employed at the workplace.
T F Closed circuit cameras and mirrors are NOT used to monitor danger
areas.
T F Metal detectors are NOT available or NOT used in the facility.
T F Employees have NOT been trained to recognize and control hostile
and escalating aggressive behaviors; and to manage assault behavior.
T F Employees CANNOT adjust work schedules to use the “Buddy Sys-
tem” for visits to clients in areas where they feel threatened.
T F Cellular phones or other communication devices are NOT made
available to field staff to enable them to request aid.
T F Vehicles are NOT maintained on a regular basis to ensure reliability
and safety.
T F Employees work where assistance is NOT quickly available.
Source: OSHA
any of the warning signs of violent behavior discussed earlier such as

fascination with violence, etc. The next step is to evaluate the tempera-
ment of the person making the threat. Following these two steps allows
a management to effectively make a judgment as to whether the threat
is real and is immediate or imminent.
Threat assessment also helps management decide how to effec-
tively handle the situation so that the violent act does not occur (i.e.,
the actual carrying out of the threat). Determining the credibility
level of a threat will assist the employer to determine if the person
making the threat has the means, ability and intent to carry out the
threat. If so the situation requires immediate law enforcement as-
sistance/intervention. If the person making the threat possesses
the means but does not possess the ability or intent to carry out
the threat, the assistance of outside social service agencies becomes
a consideration. If the person making the threat does not possess
the means, ability or intent to carry out the threat this may require
employer based intervention and/or outside agency intervention.
Effective threat assessment can analyze the:
• Nature of the threat and/or threatening behavior and its context;
• Target of the threat;
• Motivation of the person making the threat;
• Intent to carry out the threat; and
• Ability to carry out the threat.
Finally, effective threat assessment can analyze the background

of the person making the threat including work history, criminal re-
cord, military history, and past job behavior.
QUESTIONS TO ASK IN A THREAT ASSESSMENT
As a behavioral consultant to law enforcement, the FBI’s Na-

tional Center for the Analysis of Violent Crime (NCAVC), located at
the FBI Academy, Quantico, Virginia, periodically receives requests
to assess the risk for violence posed by an individual in a workplace.
In some cases, this has been precipitated by a verbal or written threat

made in the workplace, at other times it is predicated by unusual or
strange behavior and/or comments made to coworkers.
If a communicated threat, verbal, typewritten, e-mailed or oth-
erwise, is present, an analysis of the verbiage is conducted to deter-
mine credibility and viability of the threat. Further, if the offender is
unknown, a linguistic profile is developed for investigators, which
may identify the offender in the future. In known-offender cases, the
analysis of the communicated threats and of the behavior exhibited
by the offender is assessed in order to determine the level of threat.
In order to assess this risk, the FBI offers the following sug-
gested questions to ask individuals familiar with the offender ’s
behavior, both prior to and after any alleged threat or action.
The effects of a threat are subjective and subtle. Many factors
surround a threat or perceived threat. Usually there is no physical
Risk Assessment Questions

Note: Perpetrators of workplace violence can be both men and women; how-
ever, for the purposes of the questions to be asked, the word “he” is used to
refer to the offender. They include:
- Why has the offender threatened, made comments which have been per-
ceived by others as threatening, or has taken this action at this particular time?
What is happening in his/her own life that has prompted this?
- What has been said to others, i.e., friends, colleagues, coworkers, etc., regard-
ing what is troubling him?
- How does the offender view himself in relation to everyone else?
- Does he feel that he has been wronged in some way?
- Does he accept responsibility for his own actions?
- How does the offender cope with disappointment, loss or failure?
- Does he blame others for his failures?
- How does the offender interact with coworkers?
- Does the offender feel he is being treated fairly by the company?
- Does he have problems with supervisors or management?
- Is he concerned with job practices and responsibilities?
- Has he received unfavorable performance reviews or been reprimanded by
management?
- Is he experiencing personal problems such as divorce, death in the family,
health problems, or other personal losses or issues?
(Continued…)
evidence. Also some threats are not criminal and, therefore, are not
subject to law enforcement intervention and prosecution. Threats
can be objective or subjective. Different people respond differently
to the same words or acts.
Violent acts are often preceded by a threat. The threat can occur
in many differing ways. Some of the ways include:
• The threat may have been explicit or veiled, spoken or unspo-

ken, specific or vague;
• A violent behavior may have been observed by others, suggest-
ing the potential for some type of violent act to occur; and
• An off-handed remark or comments made to people close to the
individual, which may suggest problematic behavior.
Risk Assessment Questions (Continued)

- Is he experiencing financial problems, high personal debt or bankruptcy?
- Is there evidence of substance abuse or mental illness/depression?
- Has he shown an interest in violence through movies, games, books, or maga-
zines?
- Is he preoccupied with violent themes; interested in publicized violent events;
or fascinated with and/or recently acquired weapons?
- Has the offender identified a specific target and communicated with others
his thoughts or plans for violence?
- Is he obsessed with others or engaged in any stalking or surveillance activity?
- Has the offender spoken of homicide or suicide?
- Does he have a past criminal history or history of past violent behavior?
- Does the offender have a plan for what he would do?
- Does the plan make sense, is it reasonable, is it specific?
- Does the offender have the means, knowledge and wherewithal to carry out
his plan?
When many of these questions are answered, an accurate picture of the risk for
violence is developed and from this an intervention plan can be devised.
Source: FBI
Therefore, employees should be encouraged to report any and all

threats made against them to their supervisor. Threats, no matter how
innocuous or trivial they may appear, carry the potential for violence.
Therefore, prompt response to a reported threat should be a priority
for management. When appropriate, management should consult with
their legal department for the best course of action to take.
DEFINING A THREAT
When employees are required to observe a “no-threat” policy,

they must be given a reasonably clear statement of what will be con-
sidered threatening behavior. An expressed intention to hurt someone
can be determined both objectively and subjectively. An objective de-
termination of a threat is one that is obvious. It is disruptive; it disturbs
and interferes with or prevents normal work functions or activities. Ex-
amples of disruptive behavior include yelling, using profanity, waving
arms or fists, verbally abusing others, and refusing reasonable requests
for identification. Employee A will state that the next time Employee B
looks at him, he’ll punch him in the face. That is a clear-cut threat.
On the other hand, a subjective threat is one in which a person
feels threatened but without obvious words or actions such as a look,
body language, etc. As noted earlier, different people can and do
respond differently to the same words or acts. However, subjective
factors cannot be dismissed from the definition of a threat. Employees
can and should be held responsible for a reasonable regard for the
feelings and concerns of coworkers. Employers also have an obliga-
tion to see that employees do not feel frightened or intimidated.
Threatening behavior includes physical actions short of actual
contact/injury such as aggressively moving closer, general or writ-
ten treats to people or property such as “You better watch your
back” or “I’ll get you” as well as implicit threats such as “You’ll be
sorry” or “This isn’t over.”
Violent behavior includes any physical assault with or without
weapons; behavior that a reasonable person would interpret as be-
ing potentially violent such as throwing things, pounding on a desk
or door, or destroying property. Specific threats to inflict physical
Threat Assessment—A True-life Example

During a training session, the 46-year-old subject made comments re-
garding his alcoholism, causing such a disturbance that he was subsequently
referred to the Employee Assistance Counseling Program. On two other oc-
casions, he displayed inappropriate behavior by storming around the office,
cursing, and throwing objects. In another training workshop, he made verbally
abusive comments disturbing the class.
After a month’s leave, he had a verbal outburst during a meeting on his
first day back in the office and requested a transfer due to stress. The request
was denied. He then requested more leave, which was granted. The subject
was noticeably withdrawn and his performance declined. Supervisors docu-
mented a pattern of unusual agitation over minor issues, unreasonable com-
plaints, unacceptable work, and allegations that coworkers were conspiring
against him. The subject was voluntarily hospitalized twice. He was treated for
psychosis and suicidal and paranoid delusions associated with his coworkers.
His physician recommended a disability retirement.
A month before his disability pension was approved, he began to leave
harassing voice mail messages on a coworker’s telephone. An example of the
messages is: “Hi, Darlene. It’s Stan. Just wanted to say Happy Thanksgiving.
And, you give this mess to Yvonne: Tell her if she had been off the property the
day she hollered at me, I would have beat her m____ f____ ass. Bye, Darlene.”
He was diagnosed with delusional disorder, paranoid type. The information
was also provided to law enforcement during the investigation.
His retirement papers contained disturbing comments. For example, re-
calling a meeting with a Human Resources staff member, he said, “I started to
grab her by the throat and choke her until the top part of her head popped off.
Then I was going to step on her throat and pluck her bozo hairdo bald. Strand
by strand…”
Some months later, the subject told a former coworker that he was fol-
lowing a former supervisor and her family. He provided specific information,
stating that he knew where some of the targets lived and the types and colors of
vehicles they drove. The subject also made comments about the target’s family
members and stated that he had three guns for each of his former supervisors.
At this point, law enforcement was notified. While the police investiga-
tion was underway, the subject made threats against five former female co-
workers. A threat assessment was conducted analyzing letters, voice mails,
reports from EAP, and interviews with various individuals. The subject’s com-
munications were organized and contained specific threats. For example, he
wrote, “Don’t let the passage of time fool you, all is not forgotten or forgiven,”
and “I will in my own time strike again, and it will be unmerciful.”
(Continued)
Threat Assessment—A True-life Example (Continued)

The material suggested that he was becoming increasingly fixated on the tar-
gets. His communications articulated an action imperative which suggested that
the risk was increasing. After obtaining additional information, the investiga-
tors informed the subject of specific limits and consequences that would occur
if he continued his threatening behavior and communications.
The subject assured law enforcement agents that his intent was to pursue
legal reparations. Four months later, however, he mailed letters to his five tar-
gets stating that he wanted to “execute” one of them. The letters indicated that
he was close to committing an attack. Based on the ongoing assessment and in-
sight into his thinking and behavior over several months, the threat assessment
team, consisting of an investigator and a mental health professional, initiated
a conference call with the district attorney. In the conference, the mental health
professional provided an assessment of the subject’s potential for violence, and
the investigator presented evidence regarding the laws violated and law en-
forcement actions taken to date.
The threat assessment report, along with other evidence, was used by
the district attorney in obtaining an arrest and search warrant. The final rec-
ommendation by the team was that the subject should be arrested and held
without bond. Six months after the arrest, he was found not guilty by reason of
insanity.
Source: FBI
harm such as a threat to shoot a named individual also is considered

violent behavior.
The threat assessment account provided above by the FBI was
conducted by a criminal investigator and a mental health profes-
sional and reported at the National Center for the Analysis of Violent
Crime’s, (NCVAC’s), Violence in the Workplace Symposium.
Sources
Gustin, Joseph F., Safety Management, A Guide for Facility Managers, 2nd. ed., Lil-
burn, GA: The Fairmont Press, Inc. 2008.
United States Department of Agriculture, The USDA Handbook on Workplace
Violence Prevention and Response. Publication Number 2008-10-09, October
2001
Chapter 6
The Legal Ramifications

Companies are faced with a myriad of complex challenges.
Among those challenges are the seemingly endless array of federal
and state laws that govern a company and its operations. Any failure
to comply with those laws can have deleterious effects upon a busi-
ness and its operations.
Among the myriad of laws that govern a company are those
that involve the employment function. For example, a company’s
failure to exercise due diligence in the performance of those employ-
ment functions, including the screening, hiring and retention of em-
ployees, may result in civil actions under tort law.
TORT LAW
A tort is a civil wrong. It occurs when an entity breaches a duty

that it owes to another entity and that other entity suffers harm, or
damage because of the breach. And, because the tortuous action can
cause harm, or damage, the law allows for the aggrieved party (vic-
tim) to recover damages.
It is equally important to note that under the concept of neg-
ligent retention, employers can be held responsible for failure to
maintain awareness of an employee’s “unfitness,” and/or to take
the corrective measures necessary to remove the threat posed by the
employee. These measures in question include employee coaching,
counseling, job reassignment and/or termination.
A review of various cases underscores the importance of con-
ducting due diligence in the screening/hiring of employees, as well
as in employee retention.
91
• McClean v. Kirby Co. A vacuum cleaner manufacturer was found

liable for $45,000 because one of its distributors hired a sales-
man with a criminal record who raped a female customer in
her home. The court held that the manufacturer should have
required its distributors to do pre-hiring screening in order to
prevent hiring people with criminal histories. McClean v. Kirby
Co., (490 N.W.2d 229 (N.D. 1992)).
• Deerings West Nursing Center v. Scott. A nursing home was

found liable for $235,000 for the negligent hiring of an unli-
censed nurse. The nurse, who had 56 prior criminal convic-
tions, assaulted an eighty-year-old visitor. Deerings West Nurs-
ing Center v. Scott, (787 S.W.2d 494 (Tex. App. 1990)).
• Doe v. MCLO. An employee with a criminal record forced a

child to perform oral sex. The victim was awarded $1.75 mil-
lion. Doe v. MCLO, (Ohio, Cuyahoga County Court of Com-
mon Pleas, No. 74028, 1989)
• Tallahassee Furniture Co., Inc. v. Harrison. A furniture company

was liable for $2.5 million for negligent hiring and retention of
a deliveryman who attacked a female customer in her home.
Tallahassee Furniture Co., Inc., v. Harrison, (583 So.2d 744 (Fla.
App. 1991)).
• Porter v. Proffitts, Inc. A store customer, who was detained by a

security guard as a suspected shoplifter and was injured while
being restrained, was awarded $10 million in damages in a neg-
ligent hiring case. Porter v. Proffitts, Inc., (Tenn., Bradley County
Cir. Ct., No. V-94-676, 1996).
• Daniel Dean v. Oppenheim Davidson Enterprises, Inc. A Califor-

nia Superior court found that American’s Best Carpet Care
was negligent in its hiring and ordered the company to pay a
staggering $11.5 million in damages. Daniel Dean v. Oppenheim
Davidson Enterprises, Inc., (Civil Action No. 809231- 1; Superior
Court of State of. California, Judicial District County of Alam-
eda).
The Legal Ramifications 93
EMPLOYER LIABILITY
When can an employer be held liable for the actions of its em-
ployees? Under the doctrine of respondeat superior, an employer may
be held liable for the actions of its employees when those employees
are working within the scope of their specific duties or responsibili-
ties. Similarly, an employer may also be held liable for the action(s)
of its employee if that employee appeared to speak for, or act on be-
half of the company. And, an employer may be found liable for any
harm or injury caused by the employee’s tortuous actions, particu-
larly in those instances when the employer fails to take all necessary
precautions to prevent such conduct.
With its roots in English Common Law, the employment doc-
trine of respondeat superior has long-established itself as a fixture
of U.S. employment law. As such, it defines the employer-employee
relationship, and the liability of the employer during the course and
duration of the work relationship.
Respective to the issue of workplace violence, this legal doc-
trine served as the basis for employee lawsuits that involved, among
other issues, the intentional and/or reckless actions of a co-worker
that caused harm or injury. And as noted above, this type of litiga-
tion focuses upon the issue of employer negligence in performing
due diligence in the full scope of the employment process that
includes hiring, supervising, retaining and terminating “unfit,”
employees, or those persons who pose a threat. Since employers
have the legal, moral and ethical responsibility to provide a safe
and healthful working environment for their personnel, they must
exercise caution and take all necessary steps to ensure the protection
of their employees, as well as their customers, clients, and visitors,
from employees that may pose a threat, or inflict harm.
In what can be called “mis-steps” in the employment function,
a company’s failure to exercise reasonable care in managing the vari-
ous aspects of the employment function can become problematic.
The proliferation of employee lawsuits filed for workplace torts, can
and does pose a significant challenge to employers. Because a jury
trial is permitted and punitive damages, in addition to compensa-
tory damages, jury awards that can best be described as “astronomi-

cal” are possible.
The following cases provide the details:
• Brown v. Springwood & Associates. In Illinois, a jury awarded

$680,000 against a nursing home for the alleged sexual assault
on a 92-year old female resident by an employee who was hired
without any screening. Illinois statutes provide for tripling of
the award to $2,040,000. Brown v. Springwood & Associates, (No.
LKA94-657. Circuit Court, Kane Co. Ill).
• Jones v. C.H. Robinson Worldwide Inc. An Illinois jury awarded

a $23.7 million judgment against freight broker C.H. Robinson
Worldwide and other defendants for an interstate collision that
killed two people and injured five others in April 2004. The
driver and carrier admitted they were negligent and respon-
sible for the damages caused by their actions. The driver was
charged with driving on a suspended license and falsifying her
logbook. (Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d
630 (W.D. Va. 2008)).
• Santos v. Scott Villa Apartments, L.P. and Francis Property Manage-

ment, Inc.  A civil jury in Los Angeles Superior Court returned a
$12-million verdict against the owner and property manager of
a Burbank apartment complex for the wrongful death of a ten-
ant who went missing. Her body was found in the trunk of her
own car two weeks after she was reported missing.  She had
been raped and murdered. The victim’s mother sued the own-
ers and the management Company of the apartment complex
for negligent hiring. The maintenance man is a convicted felon
and a registered sex offender. Santos v. Scott Villa Apartments,
L.P. and Francis Property Management, Inc., (No. BC 355923, Su-
perior Court of CA., Los Angeles County). In 2012, the Court
remanded the case for retrial.
A further example of negligence is described in the following

case:
• Linhart v. Heyl Logistics LLC, et al. An Oregon jury awarded $5.2

million in a negligent hiring case. A federal court jury awarded
$5.2 million, including punitive damages, to the adult children
of the victim who was killed by a truck driver high on crystal
meth. The company that hired the truck driver ’s employer
failed to do due diligence. That truck driver’s employer, Wash-
ington Transportation, was without insurance and without
operating authority. The owners of the trucking company had
their license revoked for various violations including failure
to perform drug testing on their drivers. The jury agreed that
Heyl should have known about Washington Transportation’s
safety violations before hiring it. Linhart v. Heyl Logistics LLC,
(U.S. Dist. Ct. Oregon, No. 1:10-cv-03100-PA)).
THE ROLE OF WORKERS’ COMPENSATION
Workers’ Compensation is an insurance policy that is designed

to assist employees who sustain on-the-job injuries, or who develop
an illness or disease as a result of their working conditions. Workers’
compensation also applies in those instances if and when injury, ill-
ness or death occur while the employee is engaged in any business
activity for the employer, including those business actions that occur
off-site, or while the employee is traveling for the purpose of con-
ducting employer business. As such, workers’ compensation insur-
ance also has the ability to protect employers from suits filed by an
employee for injuries sustained as a result of employment.
While providing coverage for an employee’s loss of earnings,
or medical costs incurred as a result of injury or illness, workers’
compensation may also include various financial measures for the
family of an employee whose death can be established as the result
of workplace injuries or incidents.
It is important to note that most states require that employ-
ers participate in a workers’ compensation program. In fact, 49 of
the 50 states do participate. While Texas is the only state that does
not mandate employer participation, public employers, as well as
those employers who enter into building or construction contracts

with governmental entities must provide workers compensation
coverage. However, under the Texas Workers’ Compensation Act,
which was adopted by the Texas legislature in December 1989, any
employer who chooses not to maintain coverage must notify its
employees and the state that it does not intend to maintain workers’
compensation insurance.
While workers’ compensation plays a vital role in issues of
workplace violence, it is also important to note that the programs
vary from state to state. Also important to note is that an injury is
compensable if the injury is sustained during the course of employ-
ment, and if and when the nature of the work caused the incident.
In such situations, workers’ compensation is generally the only re-
course that employees have, since they are precluded from filing suit
against their employer. In all cases, employers should check with
legal counsel, or with their respective state department of workers’
compensation.
THE ELEMENTS OF NEGLIGENCE
As evidenced above, for employer negligence to be proved, an

employee, or third party (i.e., the plaintiff) must establish that an
employment relationship does in fact, exist, and that:
• The person causing the injury, or harm was “unfit” for the job
and should not have been hired. Further, said person should
not have been retained without proper supervision;
• The injury/harm sustained by the plaintiff was caused by the
employer’s negligence; and
• The employer knew or should have known that the perpetrator
was unfit for the job.
In addition to negligent hiring, employers can also be held

liable for negligent retention and negligent supervision when the
behavior of its employees can cause harm or injury to a third party.
For example, the principle or concept of negligent retention

comes into play when an employee is retained by the company,
despite the employer’s awareness of, or knowledge regarding the
unsuitability of that employee. Negligent supervision can become a
factor when it can be proved that because of an employer’s failure
to properly supervise an employee, a third party was injured, or suf-
fered harm, as a result of an employee’s action.
In essence, then, in cases of employer negligence, a causal rela-
tionship must be established; i.e., a connection must be established
that the employee’s actions caused injury or harm to a third party.
AVOIDING LIABILITY
Regardless of a company’s structure (public v. private sector),

its governance (privately held v. publicly held), as well as its prod-
uct/service line, the employment function begins with the hiring
process. From the initial screening of applicants to the final selec-
tion process, and through the length of employment, employers are
required to exercise and maintain a reasonable standard of care. This
standard of care is necessary to ensure that any person under con-
sideration for employment, will not present a risk of injury, or harm,
to any individual with whom the hire may come into contact with
through the course of the work assignment.
There are several steps that employers can use to ensure that a
reasonable standard of care is undertaken. These steps include:
• Background and reference checks;

• Job applications;
• Solid interviews; and
• Consistency in policy implementation and enforcement.
It is essential for employers to perform due diligence in con-

ducting a background check on candidates under consideration for
employment. As such, the background check should be as relevant
to the position in question as it is thorough. And in doing so, the
background check must adhere to any and all applicable federal and
state guidelines. It is also important for the employer to insist upon
thorough and complete candidate applications. Doing so gives the
employer the opportunity to investigate any gaps in the applicant’s
employment, as well as to verify the accuracy of the candidate’s
prior work history.
Finally, it also allows for a candid discussion with the applicant
during the interview process. Such a discussion allows the employer
to determine the fitness, or suitability, of the candidate. By doing so,
the employer can make the decision to screen out an unfit applicant
knowing that the decision will be consistent with all federal, state
and local laws.
PROHIBITED EMPLOYMENT POLICIES/PRACTICES
Under the laws enforced by EEOC, it is illegal to discriminate

against someone (applicant or employee) because of that person’s
race, color, religion, sex (including pregnancy), national origin, age
(40 or older), disability or genetic information. It is also illegal to
retaliate against a person because he or she complained about dis-
crimination, filed a charge of discrimination, or participated in an
employment discrimination investigation or lawsuit.
The law forbids discrimination in every aspect of employment.
The laws enforced by EEOC prohibit an employer or other cov-
ered entity from using neutral employment policies and practices
that have a disproportionately negative effect on applicants or em-
ployees of a particular race, color, religion, sex (including pregnan-
cy), or national origin, or on an individual with a disability or class
of individuals with disabilities, if the polices or practices at issue are
not job-related and necessary to the operation of the business. The
laws enforced by EEOC also prohibit an employer from using neu-
tral employment policies and practices that have a disproportion-
ately negative impact on applicants or employees age 40 or older, if
the policies or practices at issue are not based on a reasonable factor
other than age.
Job Advertisements
It is illegal for an employer to publish a job advertisement that
shows a preference for or discourages someone from applying for
a job because of his or her race, color, religion, sex (including preg-
nancy), national origin, age (40 or older), disability or genetic infor-
mation.
For example, a help-wanted ad that seeks “females” or “recent
college graduates” may discourage men and people over 40 from
applying and may violate the law.
Recruitment
It is also illegal for an employer to recruit new employees in a
way that discriminates against them because of their race, color, re-
ligion, sex (including pregnancy), national origin, age (40 or older),
disability or genetic information.
For example, an employer’s reliance on word-of-mouth recruit-
ment by its mostly Hispanic work force may violate the law if the
result is that almost all new hires are Hispanic.
Application & Hiring

It is illegal for an employer to discriminate against a job ap-
plicant because of his or her race, color, religion, sex (including
pregnancy), national origin, age (40 or older), disability or genetic
information. For example, an employer may not refuse to give em-
ployment applications to people of a certain race.
An employer may not base hiring decisions on stereotypes and
assumptions about a person’s race, color, religion, sex (including
information.
If an employer requires job applicants to take a test, the test
must be necessary and related to the job and the employer may not
exclude people of a particular race, color, religion, sex (including
pregnancy), national origin, or individuals with disabilities. In addi-
tion, the employer may not use a test that excludes applicants age 40
or older if the test is not based on a reasonable factor other than age.
If a job applicant with a disability needs an accommodation
(such as a sign language interpreter) to apply for a job, the employer

is required to provide the accommodation, so long as the accommo-
dation does not cause the employer significant difficulty or expense.
Job Referrals
It is illegal for an employer, employment agency or union to
take into account a person’s race, color, religion, sex (including
information when making decisions about job referrals.
Job Assignments & Promotions

It is illegal for an employer to make decisions about job assign-
ments and promotions based on an employee’s race, color, religion,
sex (including pregnancy), national origin, age (40 or older), dis-
ability or genetic information. For example, an employer may not
give preference to employees of a certain race when making shift as-
signments and may not segregate employees of a particular national
origin from other employees or from customers.
An employer may not base assignment and promotion deci-
sions on stereotypes and assumptions about a person’s race, color,
religion, sex (including pregnancy), national origin, age (40 or old-
er), disability or genetic information.
If an employer requires employees to take a test before making
decisions about assignments or promotions, the test may not exclude
people of a particular race, color, religion, sex (including pregnancy),
or national origin, or individuals with disabilities, unless the em-
ployer can show that the test is necessary and related to the job. In
addition, the employer may not use a test that excludes employees
age 40 or older if the test is not based on a reasonable factor other
than age.
Pay and Benefits

It is illegal for an employer to discriminate against an employee
in the payment of wages or employee benefits on the bases of race,
color, religion, sex (including pregnancy), national origin, age (40 or
older), disability or genetic information. Employee benefits include
sick and vacation leave, insurance, access to overtime as well as

overtime pay, and retirement programs. For example, an employer
many not pay Hispanic workers less than African-American work-
ers because of their national origin, and men and women in the same
workplace must be given equal pay for equal work.
In some situations, an employer may be allowed to reduce
some employee benefits for older workers, but only if the cost of
providing the reduced benefits is the same as the cost of providing
benefits to younger workers.
Discipline and Discharge

An employer may not take into account a person’s race, color,
religion, sex (including pregnancy), national origin, age (40 or old-
er), disability or genetic information when making decisions about
discipline or discharge. For example, if two employees commit a
similar offense, an employer many not discipline them differently
because of their race, color, religion, sex (including pregnancy), na-
tional origin, age (40 or older), disability or genetic information.
When deciding which employees will be laid off, an employer
may not choose the oldest workers because of their age.
Employers also may not discriminate when deciding which
workers to recall after a layoff.
Employment References
It is illegal for an employer to give a negative or false employ-
ment reference (or refuse to give a reference) because of a person’s
race, color, religion, sex (including pregnancy), national origin, age
(40 or older), disability or genetic information.
REASONABLE ACCOMMODATION & DISABILITY
The law requires that an employer provide reasonable accommo-

dation to an employee or job applicant with a disability, unless doing
so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the workplace
(or in the ways things are usually done) to help a person with a dis-
ability apply for a job, perform the duties of a job, or enjoy the ben-
efits and privileges of employment.
Reasonable accommodation might include, for example, pro-
viding a ramp for a wheelchair user or providing a reader or inter-
preter for a blind or deaf employee or applicant.
Reasonable Accommodation and Religion

The law requires an employer to reasonably accommodate an
employee’s religious beliefs or practices, unless doing so would
cause difficulty or expense for the employer. This means an em-
ployer may have to make reasonable adjustments at work that will
allow the employee to practice his or her religion, such as allowing
an employee to voluntarily swap shifts with a co- worker so that he
or she can attend religious services.
Training and Apprenticeship Programs

It is illegal for a training or apprenticeship program to discrimi-
nate on the bases of race, color, religion, sex (including pregnancy),
national origin, age (40 or older), disability or genetic information.
For example, an employer may not deny training opportunities to
African-American employees because of their race.
In some situations, an employer may be allowed to set age lim-
its for participation in an apprenticeship program.
HARASSMENT
It is illegal to harass an employee because of race, color, re-

ligion, gender (including pregnancy), national origin, age (40 or
older), disability or genetic information.
It is also illegal to harass someone because they have complained
about discrimination, filed a charge of discrimination, or participated
in an employment discrimination investigation or lawsuit.
Harassment can take the form of slurs, graffiti, offensive or
derogatory comments, or other verbal or physical conduct. Sexual
harassment (including unwelcome sexual advances, requests for

sexual favors, and other conduct of a sexual nature) is also unlawful.
Although the law does not prohibit simple teasing, offhand com-
ments, or isolated incidents that are not very serious, harassment is
illegal if it is so frequent or severe that it creates a hostile or offensive
work environment or if it results in an adverse employment decision
(such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in an-
other area, a co-worker, or someone who is not an employee of the
employer, such as a client or customer.
Harassment outside of the workplace may also be illegal if
there is a link with the workplace. For example, if a supervisor ha-
rasses an employee while driving the employee to a meeting.
Terms and Conditions of Employment

The law makes it illegal for an employer to make any employ-
ment decision because of a person’s race, color, religion, sex (in-
cluding pregnancy), national origin, age (40 or older), disability or
genetic information. That means an employer may not discriminate
when it comes to such things as hiring, firing, promotions, and pay.
It also means an employer may not discriminate, for example, when
granting breaks, approving leave, assigning work stations, or setting
any other term or condition of employment - however small.
PRE-EMPLOYMENT INQUIRIES (GENERAL)
As a general rule, the information obtained and requested

through the pre-employment process should be limited to those es-
sential for determining if a person is qualified for the job; whereas,
information regarding race, sex, national origin, age, and religion are
irrelevant in such determinations.
Employers are explicitly prohibited from making pre-employ-
ment inquiries about disability.
Although state and federal equal opportunity laws do not
clearly forbid employers from making pre-employment inquiries
that relate to, or disproportionately screen out members based on

race, color, sex, national origin, religion, or age, such inquiries may
be used as evidence of an employer’s intent to discriminate unless
the questions asked can be justified by some business purpose.
Therefore, inquiries about organizations, clubs, societies, and
lodges of which an applicant may be a member or any other ques-
tions, which may indicate the applicant’s race, sex, national origin,
disability status, age, religion, color or ancestry if answered, should
generally be avoided.
Similarly, employers should not ask for a photograph of an ap-
plicant. If needed for identification purposes, a photograph may be
obtained after an offer of employment is made and accepted.
Regarding the pre-employment inquiries, the EEOC elaborates
on race; height and weight; credit rating (or economic status); re-
ligious affiliation or beliefs; citizenship; marital status (or number
of children); gender; arrest and conviction; security/background
checks for religious or ethnic groups; disability; and medical ques-
tions and examinations.
Pre-Employment Inquiries and Race

In general, it is assumed that pre-employment requests for infor-
mation will form the basis for hiring decisions. Therefore, employers
should not request information that discloses or tends to disclose
an applicant’s race unless it has a legitimate business need for such
information. If an employer legitimately needs information about its
employees’ or applicants’ race for affirmative action purposes and/
or to track applicant flow, it may obtain the necessary information
and simultaneously guard against discriminatory selection by using
a mechanism, such as “tear-off” sheets. This allows the employer to
separate the race-related information from the information used to
determine if a person is qualified for the job. Asking for race-related
information on the telephone could probably never be justified.
Pre-Employment Inquiries and Height and Weight

Height and weight requirements tend to disproportionately
limit the employment opportunities of some protected groups and
unless the employer can demonstrate how the need is related to the
job, it may be viewed as illegal under federal law. A number of states
and localities have laws specifically prohibiting discrimination on
the basis of height and weight unless based on actual job require-
ments. Therefore, unless job-related, inquiries about height and
weight should be avoided.
Pre-employment Inquiries and Credit Rating or Economic Status

Inquiry into an applicant’s current or past assets, liabilities,
or credit rating, including bankruptcy or garnishment, refusal or
cancellation of bonding, car ownership, rental or ownership of a
house, length of residence at an address, charge accounts, furniture
ownership, or bank accounts generally should be avoided because
they tend to impact more adversely on minorities and females. Ex-
ceptions exist if the employer can show that such information is es-
sential to the particular job in question.
Pre-employment Inquiries and Religious Affiliation or Beliefs

Questions about an applicant’s religious affiliation or beliefs
(unless the religion is a bona fide occupational qualification [BFOQ])
are generally viewed as non job-related and problematic under fed-
eral law.
Religious corporations, associations, educational institutions,
or societies are exempt from the federal laws that EEOC enforces
when it comes to the employment of individuals based on their
particular religion. In other words, an employer whose purpose
and character is primarily religious is permitted to lean towards
hiring persons of the same religion. This exception relieves reli-
gious organizations only from the ban on employment discrimina-
tion based on religion. It does not exempt such organizations from
employing individuals due to their race, gender, national origin,
disability, color, and/or age. Other questions employers should
avoid are questions about an applicant’s religious affiliation, such
as place of worship, days of worship, and religious holidays and
should not ask for references from religious leaders, e.g., minister,
rabbi, priest, imam, or pastor.
Pre-employment Inquiries and Citizenship

Employers should not ask whether or not a job applicant is a
United States citizen before making an offer of employment. The
Immigration Reform and Control Act of 1986 (IRCA) makes it il-
legal for employers to discriminate with respect to hiring, firing, or
recruitment or referral for a fee, based on an individual’s citizenship
or immigration status. For example, the law prohibits employers
from hiring only U.S. citizens or lawful permanent residents unless
required to do so by law, regulation or government contract; it also
prohibits employers from preferring to hire temporary visa holders
or undocumented workers over qualified U.S. citizens or other pro-
tected individuals, such as refugees or individuals granted asylum.
IRCA requires employers to verify the identity and employ-
ment eligibility of all employees hired after November 6, 1986,
by completing the Employment Eligibility Verification (I-9) Form,
and reviewing documents showing the employee’s identity and
employment authorization. The law prohibits employers from
rejecting valid documents or insisting on additional documents
beyond what is legally required for employment eligibility verifi-
cation (or the Department of Homeland Security (DHS) Form I-9),
based on an employee’s citizenship status or national origin. For
example, e.g., an employer cannot require only individuals the
employer perceives as “foreign” to verify their employment eligi-
bility or produce specific documents, such as Permanent Resident
(“green”) cards or Employment Authorization Documents. It is the
employee’s choice which of the permitted documents to show for
employment eligibility verification. As long as the document ap-
pears reasonably genuine on its face, and relates to the employee,
it should be accepted.
Because of potential claims of illegal discrimination, employ-
ment eligibility verification should be conducted after an offer to
hire has been made. Applicants may be informed of these require-
ments in the pre-employment setting by adding the following state-
ment on the employment application:
“In compliance with federal law, all persons hired will be re-
quired to verify identity and eligibility to work in the United States
and to complete the required employment eligibility verification

document form upon hire.”
Pre-employment Inquiries and Marital Status or Number of Children

Questions about marital status and number and ages of chil-
dren are frequently used to discriminate against women and may
violate Title VII if used to deny or limit employment opportunities.
It is clearly discriminatory to ask such questions only of women
and not men (or vice-versa). Even if asked of both men and women,
such questions may be seen as evidence of intent to discriminate
against, for example, women with children.
Generally, employers should not use non job-related ques-
tions involving marital status, number and/or ages of children or
dependents, or names of spouses or children of the applicant. Such
inquiries may be asked after an employment offer has been made
and accepted if needed for insurance or other legitimate business
purposes.
The following pre-employment inquiries may be regarded as
evidence of intent to discriminate when asked in the pre-employ-
ment context:
• Whether applicant is pregnant;

• Marital status of applicant or whether applicant plans to marry;
• Number and age of children or future child bearing plans;
• Childcare arrangements;
• Employment status of spouse; and
• Name of spouse.
Pre-employment Inquiries and Gender

Questions about an applicant’s sex, (unless it is a bona fide
occupational qualification (BFOQ) and is essential to a particular
position or occupation), marital status, pregnancy, medical history
of pregnancy, future child bearing plans, number and/or ages of
children or dependents, provisions for child care, abortions, birth
control, ability to reproduce, and name or address of spouse or chil-
dren are generally viewed as non job-related and problematic under

Title VII.
Any pre-employment inquiry in connection with prospective
employment expressing or implying limitations or special treatment
because of sex (unless based upon BFOQ) or any inquiry made of
members of one sex and not the other, is similarly troublesome.
Pre-employment Inquiries and Arrest and Conviction

There is no federal law that clearly prohibits an employer from
asking about arrest and conviction records. However, using such
records as an absolute measure to prevent an individual from being
hired could limit the employment opportunities of some protected
groups and thus cannot be used in this way.
Since an arrest alone does not necessarily mean that an appli-
cant has committed a crime the employer should not assume that
the applicant committed the offense. Instead, the employer should
allow him or her the opportunity to explain the circumstances of the
arrest(s) and should make a reasonable effort to determine whether
the explanation is reliable.
Even if the employer believes that the applicant did engage
in the conduct for which he or she was arrested that information
should prevent him or her from employment only to the extent that
it is evident that the applicant cannot be trusted to perform the du-
ties of the position when:
• Considering the nature of the job;

• The nature and seriousness of the offense; and
• The length of time since it occurred.
This is also true for a conviction.
Several state laws limit the use of arrest and conviction records
by prospective employers. These range from laws and rules prohib-
iting the employer from asking the applicant any questions about
arrest records to those restricting the employer’s use of conviction
data in making an employment decision.
In some states, while there is no restriction placed on the em-
ployer, there are protections provided to the applicant with regard to
what information they are required to report.
The Fair Credit Reporting Act (FCRA) imposes a number of
requirements on employers who wish to investigate applicants for
employment through the use of consumer credit report or criminal
records check. This law requires the employer to advise the appli-
cant in writing that a background check will be conducted, obtain
the applicant’s written authorization to obtain the records, and
notify the applicant that a poor credit history or conviction will not
automatically result in disqualification from employment.
Certain other disclosures are required upon the employee’s
request and prior to taking any adverse action based on the reports
obtained.
Pre-employment Inquiries and Security/Background Checks for

Certain Religious or Ethnic Groups
If the employer requires all other applicants to undergo back-
ground checks before being offered a position, the employer may
require members of religious or ethnic groups to undergo the same
pre-employment investigations.
Of course, as with its other employment practices, the employ-
er may not subject only particular religious or ethnic groups, such as

Muslims or Arabs, to heightened security checks.
Some employers, such as defense contractors, may require a
security clearance for certain jobs pursuant to a federal statute or
Executive Order.
Clearance determinations must generally be processed and
made without regard to race, religion, or national origin. However,
security clearance determinations for positions subject to national
security requirements under a federal statute or an Executive Order
are not generally subject to review under the equal employment op-
portunity statutes.
Pre-employment Inquiries and Disability

Under the law, employers generally cannot ask disability-
related questions or require medical examinations until after an
applicant has been given a conditional job offer. This is because, in
the past, this information was frequently used to exclude applicants
with disabilities before their ability to perform a job was evaluated.
Employers are permitted to ask limited questions about reason-
able accommodation if they reasonably believe that the applicant
may need accommodation because of an obvious or voluntarily
disclosed disability, or where the applicant has disclosed a need for
accommodation.
Employers may ask if the applicant will need an accommoda-
tion to perform a specific job duty, and if the answer is yes, the em-
ployer may then ask what the accommodation would be.
The employer may not ask any questions about the nature or
severity of the disability.
Pre-employment Inquiries and Medical Questions and Examinations

The ADA places restrictions on employers when it comes to
asking job applicants to answer medical questions, take a medical
exam, or identify a disability.
An employer may not ask a job applicant, for example, if he or
she has a disability (or about the nature of an obvious disability). An
employer also may not ask a job applicant to answer medical ques-
tions or take a medical exam before making a job offer.

An employer may ask a job applicant whether they can perform
the job and how they would perform the job. The law allows an
employer to condition a job offer on the applicant answering certain
medical questions or successfully passing a medical exam, but only
if all new employees in the same job have to answer the questions or
take the exam.
Once a person is hired and has started work, an employer gen-
erally can only ask medical questions or require a medical exam if
the employer needs medical documentation to support an employ-
ee’s request for an accommodation or if the employer has reason to
believe an employee would not be able to perform a job successfully
or safely because of a medical condition.
The law also requires that the employers keep all medical re-
cords and information confidential and in separate medical files.
DRESS CODE
In general, an employer may establish a dress code that applies

to all employees or employees within certain job categories. How-
ever, there are a few possible exceptions.
While an employer may require all workers to follow a uniform
dress code even if the dress code conflicts with some workers’ ethnic
beliefs or practices, a dress code must not treat some employees less
favorably because of their national origin. For example, a dress code
that prohibits certain kinds of ethnic dress, such as traditional Afri-
can or East Indian attire, but otherwise permits casual dress would
treat some employees less favorably because of their national origin.
Moreover, if the dress code conflicts with an employee’s reli-
gious practices and the employee requests an accommodation, the
employer must modify the dress code or permit an exception to the
dress code unless doing so would result in undue hardship.
Similarly, if an employee requests an accommodation to the
dress code because of his disability, the employer must modify the
dress code or permit an exception to the dress code, unless doing so
would result in undue hardship.
CONSTRUCTIVE DISCHARGE/FORCED TO RESIGN
Discriminatory practices under the laws EEOC enforces also

include constructive discharge or forcing an employee to resign by
making the work environment so intolerable a reasonable person
would not be able to stay.
PREVENTION—THE FINAL WORD
The old adage, “An ounce of prevention is worth a pound of

cure” applies to the issue of employment negligence. The most effec-
tive way for an employer to respond to potential litigation caused by
a “mis-step” in the employment process is to familiarize themselves
with the laws governing the employment function and also to un-
derstand them. The scope of employer liability is all encompassing.
In all cases employers should forge a close working relationship
with counsel in order to successfully navigate the complex myriad
of employment laws.
Sources
U.S. Department of Justice, Civil Rights Division, Office of Special Counsel
Cases
Brown v. Springwood & Associates, No. LKA94-657. (Circuit Court, Kane Co.
Ill, 1996).
Daniel Dean v. Oppenheim Davidson Enterprises, Inc., Civil Action No.
809231-1 (Superior Court of State of. California, Judicial District County
of Alameda, 2000).
Deerings West Nursing Center v. Scott, 787 S.W.2d 494 (Tex. App. 1990).
Doe v. MCLO Enters, Ohio, Cuyahoga County Court of Common Pleas, No.
74028, (1989).
Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630 (W.D. Va. 2008).
Linhart v. Heyl Logistics LLC (U.S. Dist. Ct. Oregon, No. 1:10-cv-03100-PA,
2012).
McClean v. Kirby Co., 490 N.W.2d 229 (N.D. 1992).
Porter v. Proffitts, Inc., Tenn., Bradley County Cir. Ct., No. V-94-676 (1996).
Santos v. Scott Villa Apartments, L.P. and Francis Property Management, Inc.,
No. BC 355923 (Superior Court of CA., Los Angeles County, 2008).
Tallahassee Furniture Co., Inc., v. Harrison, 583 So.2d 744 (Fla. 1st DC 1991).
Chapter 7
Domestic Violence
A gunman opened fire at a busy hair salon in a Southern
California coastal town in 2011 in a shooting rampage that left eight
people dead and another critically wounded. The gunman shot and
killed his ex-wife, a hair stylist at the salon. He was embroiled in a
custody dispute.
Of the nine people struck by gunfire, six were declared dead at
the scene and three others were taken to a local hospital with critical
injuries. Two of those hospitalized later died of their wounds.
Most of the victims were shot inside the salon. One man ini-
tially listed as wounded was found in the parking lot, but it was
unknown where he was shot.
In 2010, in Albuquerque, New Mexico, a man angry about a
child custody dispute with his girlfriend shot her after a confronta-
tion outside the manufacturing plant where she worked. He then
forced his way inside the very secure facility killing two employees
and wounding four others before turning the gun on himself. He
was motivated by disgust over a domestic violence dispute involv-
ing his girlfriend. Twenty to 25 bullets from a single handgun were
found. He was a former employee of that facility.
A female employee of a company located in Memphis, Tennes-
see, was killed in a shooting in the parking lot outside the facility.
The male shooter then shot and killed himself. It was an apparent
domestic violence dispute.
DEFINING DOMESTIC VIOLENCE
According to the FBI, domestic violence is a pattern in which

one intimate partner uses physical violence, coercion, threats, intimi-
dation, isolation and emotional, sexual or economic abuse to control
113
the other partner in a relationship. Stalking or other harassing be-

havior is often an integral part of domestic violence.
A study conducted by The University of Iowa in 2001 conclud-
ed that five percent of workplace homicides, i.e., about one-third of
homicides not associated with a robbery or other “stranger” crime,
fall into his category.
Domestic violence homicides represent a tiny fraction of work-
place incidents. More frequent incidents are stalking, threats, and
harassment. The FBI notes that many of these acts are criminal of-
fenses in themselves; but when harassment may not meet the legal
standard for a criminal offense, it can be and many times is a fright-
ening and disruptive occurrence not only for the targeted person,
but the coworkers also.
While employers many times are hesitant about involving
themselves into the personal lives of their employees, they neverthe-
less become involved when domestic violence and stalking become
part of the workplace environment. Businesses and employers must
take responsibility for protecting its workers from assaults or robber-
ies by outsiders; businesses and employers must also take responsi-
bility for protecting their workers against stalking or other possible
crimes by domestic partners. The most common cases of stalking
that occur, according to the FBI, are those that are based upon a
personal relationship. The primary victims of stalking, harassment
or violence are those women who have a personal relationship with
their stalker. There are cases, however, of both men and women be-
ing stalked and harassed by casual acquaintances or strangers.
Domestic violence can have a significant impact on workplace
safety. When an employee is in an abusive relationship, it is not
uncommon for the abuser to seek out the abused partner at work,
endangering not only the victim but possibly coworkers as well.
According to the Justice Department there are approximately 18,700
violent workplace events committed by an intimate of the victim: a
current or former spouse, lover, partner, or boyfriend/girlfriend.
In addition to its impact on safety, domestic violence costs
employers in many differing ways. Such costs include employee tar-
diness and absenteeism, decreased ability to concentrate, lower mo-
Domestic Violence 115
rale, higher turnover, and increased health care costs. According to

the U.S. Centers for Disease Control (CDC), approximately 5.3 mil-
lion intimate partner violence victimizations occur each year among
U.S. women ages 18 and older. The CDC found that these victims
lose a total of nearly 8.0 million days of paid work—the equivalent
of more than 32,000 full-time jobs – all a result of domestic violence.
Many times a victim of abuse is hesitant to report the abuse
to their supervisors, managers or security personnel for fear of job
loss. If the employee is no longer working for the company, then the
threat from the abusive partner is no longer an issue. So, instead
employees facing domestic threats will often say nothing or confide
in coworkers. And, many times the coworker will spot or sense the
abuse even if the victim is silent. As seen above, there are clues or
behaviors that suggest possible abuse.
Accordingly, an effective workplace violence prevention and
response effort should address the problem of domestic violence.
Measures to prevent domestic violence-related incidents when
threats present themselves at the workplace fall within the employ-
er’s broader legal obligation to prevent violence and provide a safe
workplace.
RECOGNITION
Supervisors and security personnel should learn how to better

recognize signs of domestic violence and understand how it may af-
fect workplace safety. A critical point is that domestic violence typi-
cally escalates in frequency and intensity over time. For instance, an
abuser may first begin to harass an employee at work by telephone
or e-mail, threaten to come to the workplace, and finally, come to
threaten or attack in person. In addition to the warning signs listed
above, another sign that should not be overlooked is many requests
for special accommodations, such as leaving early or time off to at-
tend court.
When incorporating domestic violence issues into a workplace
violence prevention plan, an employer should consider the following:
• Commitment;
• Multidisciplinary approach; and
• Prevention.
COMMITMENT
As part of an employer’s obligation to provide a safe work-

place, the workplace violence policy should reflect:
• A commitment to support domestic violence victims; and

• A commitment to take protective steps when domestic violence

threatens to intrude on the workplace.
In addition the workplace violence policy should cover abus-

ers. The policy should clearly state that threatening or harassing
someone in the workplace or a job related location is an offense. As
discussed in an earlier in chapter, the employer may be held liable
for the criminal actions of an employee when that employee is in
the workplace; somewhere else on the job; or using the employer’s
equipment, such as phones, cell phones, faxes, and computers.
MULTIDISCIPLINARY APPROACH
A workplace domestic violence prevention program initiative

should be incorporated into the company’s overall safety plan. As
discussed earlier, a multidisciplinary approach should include the
following members of the company and be part of the Threat Man-
agement Team that address the issue of workplace violence. The
departments on the committee should represent:
• Senior management;
• Human resources;
• Legal;
• Security;
• Local law enforcement;
• EAPs and various local community agencies as well as repre-
sentation from various bargaining units; and
• Any other departments chosen by the company.
The members of the Threat Management Team should receive

training regarding domestic violence and methods of responding to
cases involving the workplace. Appropriate training regarding the
basics of domestic violence is available, often at no cost, from com-
munity groups that provide domestic violence services.
PREVENTION
Employers’ preventive steps can include some of the same

steps outlined in the sections above, including clearly communicat-
ing the organization’s workplace violence policy during orientation
of new employees and through regular communication with the
entire work force. In addition, employers might consider taking the
following additional steps:
• Teaching employees what domestic violence is, including signs

of an abusive relationship;
• Encouraging employees to contact supervisors, human re-

sources, or security personnel about any concerns related to do-
mestic violence, without fear for their jobs or career prospects;
and
• Informing employees how and where they can find legal, psy-
chological, or financial assistance with a domestic violence
problem, and making sure employees know whom to ap-
proach.
MANDATES
The federal Family Medical Leave Act, (FMLA), covering em-

ployers with 50 or more employees, requires employers to offer up to
12 work weeks of unpaid leave in a variety of circumstances, includ-
ing an employee’s ‘‘serious health condition’’ or a family member’s
‘‘serious medical condition.’’ In some cases, it may be applicable to a
domestic violence situation.
Additionally, many states have laws protecting domestic vio-
lence victims in the workplace, such as laws that prohibit dismissal
of victims of domestic violence solely because they are victims or
because they were required to take time from work to obtain a pro-
tective order. Some states require employers to give employees time
off for reasons related to intimate partner violence, such as going

to counseling or receiving medical attention. At least 27 states have
enacted laws that help protect the employment status of domestic
violence victims who need time from work to attend court proceed-
ings or obtain an order of protection. National and state domestic
violence organizations can provide the current law for the state(s) in
which an employer operates.
Legal Momentum, a woman’s rights advocacy organization based in New

York, NY, has several informative state law guides relating to domestic violence
in the workplace including:
Workplace Restraining Orders, updated July, 2007

This guide lists the states that have proposed or enacted laws allowing employ-
ers to apply for restraining orders to prevent violence, harassment, or stalking
of their employees.
Unemployment Insurance Benefits for Domestic & Sexual Violence Survi-

vors, updated June, 2011
This guide lists the jurisdictions that have passed laws that provide unemploy-
ment insurance to domestic violence victims in certain circumstances.
Domestic and Sexual Violence Workplace Policies, updated December, 2009

This guide tracks legislation or government initiatives requiring or encourag-
ing public and/or private employers to adopt domestic and sexual violence
policies.
Workplace Restraining Orders, updated July, 2007

This guide lists the states that have proposed or enacted laws allowing employ-
ers to apply for restraining orders to prevent violence, harassment, or stalking
of their employees.
They also include a guide for private businesses.
Model Domestic and Sexual Violence Policy for Private Businesses, a model
policy solely to provide guidance in the development of a company’s own poli-
cies.
Visit their website at:

www.legalmomentum.org
DETECTION, INVESTIGATION, AND RISK ASSESSMENT
Victims of domestic violence, unlike most other victims of vio-

lent incidents, generally to try to conceal that a threat or attack has
occurred. They are often too embarrassed, ashamed or fearful to seek
help. Therefore, before a violent workplace incident occurs, employ-
ers should let employees know that competent confidential help is
available. Employers do not have an unlimited right to pry into an
employee’s private life. They, however, do have a responsibility to
take reasonable steps to detect violence or threats that may affect
their business and their other workers. Therefore, it is appropriate to
educate supervisors and other relevant personnel regarding how to
approach coworkers if they notice signs of possible abuse.
Supervisors and other involved personnel should be informed
and trained regarding the domestic violence resources that exist
within the workplace and/or within the community. They then
can forward that information about the resources available to the
affected employees. Sometimes abused employees will deny or
minimize the fact that they are being abused. The FBI suggests that
the employer should set a supportive workplace climate in which an
employee can feel safe in reporting threats. An environment of trust
and respect will make it easier for a victim of domestic violence or
stalking to notify an employer and/or seek assistance or protection.
Once a domestic violence victim has been identified and that a
threat does exist, the team members and/or the persons responsible
for response to the situation needs to perform a threat assessment.
The team should gather information from the victim, and/or co-
workers that have knowledge of the situation. Care must be taken to
guard the right of privacy of the victim and the co-worker. However,
according to the FBI, it is reasonable and justifiable to encourage
disclosure when it means the safety and security of the company’s
employees.
The Threat Management Team members or others responsible
for gathering data should be aware of and familiar with the tech-
niques used to elicit information that will be used to determine an
effective prevention strategy.
Specific training for the workforce should include observations

and input from the victims, work associates and/or confidantes of the
victim. This information can be used by management, building secu-
rity and local law enforcement as well as any other community/social
services agencies to determine the level of prevention and or actual
action needed.
SAFETY/SECURITY MEASURES
When an employer becomes aware that an employee is being

stalked, harassed, threatened or abused, and that the risk has entered
into the workplace, the employer should evaluate the threat by using
the same procedures as any other violent threat—assess the likeli-
hood of violence and determine the best means of intervention. The
FBI suggests that in almost all cases, employers should advise police
of the circumstances, the risk of violence and the possible criminal
violations. Law enforcement professionals should be involved in
assessing and managing the threat. The FBI further suggests that
during and after the assessment, someone from security, human re-
sources, or a supervisor should be responsible for keeping in close
touch with the abuse victim.
Other steps include:
• Referring the employee for emotional, legal, or financial coun-

seling, either through the company’s own employee assistance
structure or from outside practitioners, (e.g., battered women’s
shelter or similar programs);
• Ascertaining if the employee has sought or obtained a protective

“stay-away” court order against an abusive partner or other ha-
rasser;
• Adopting policies that will allow an abused worker time off for
purposes such as going to court to seek a restraining order or ap-
pearing to testify at a criminal trial;
• Reviewing the employee’s workspace and modifying it, if nec-

essary, to make sure that a possible assailant cannot get there;
and
• Acting consistently with the employee’s privacy rights and

wishes and taking measures to inform other employees (secu-
rity guards, secretaries, receptionists, and telephone operators,
for instance) so they can block an abuser’s calls or make sure
the offender is kept out of the workplace.
Other options would be to include helping an employee obtain

a restraining order; or obtain an order on its own to keep a harasser
off company property; provide security escorts to the victim’s car
or mode of transportation; authorize a parking space that is closer
to the building or a change in work hours, duties or routines. Legal
Momentum, a women’s rights advocacy organization based in New
York City, provides a guide to state laws relating to domestic vio-
lence in the workplace. Check with the state’s Attorney General for
rules that apply for a specific state.
WHEN EMPLOYEES ARE ABUSERS
The issue of the employee as an abuser should also be part of

the domestic violence prevention plan. Organizations should be
committed to preventing intimate partner violence at the workplace
and maintaining a safe workplace. Therefore, the employee as the
abuser should also be addressed. As discussed earlier, workplace
safety rules should be enforced. The employer should investigate

the suspected misconduct and then discipline and/or terminate any
employee who has used the time, equipment, or any other resources
of the employer to harass, threaten, or harm an abused partner—
whether that abused partner is an employee or not.
DOMESTIC VIOLENCE AND STALKING

IN THE WORKPLACE
When domestic violence follows an employee into the work-

place, employers should support, protect, and help the abused
partner, not punish her or him. When an employee is being stalked,
harassed, or abused at work by a domestic partner or other personal
acquaintance, the employer should:
• Take steps to keep the abuser out of the workplace such as

screening telephone calls; make the victim’s work space physi-
cally more secure; instruct security guards and/or receptionists
of the various safety precautions taken;
• Assist the victim in receiving emotional, financial, and legal

counseling;
• Support the employee in obtaining police protection or a re-

straining order; and, if applicable,
• Seek a restraining order barring the abuser from its premises;

and
• Be flexible in allowing time off for medical treatment or court

appearances.
Sometimes employers seek the quickest and easiest way to

avoid a violent incident—they will terminate the victim. This is
unjustified, unethical and, in some states, illegal. This is a form of
employee discrimination against victims. It should not be tolerated;

it is also enforceable by the EEOC.
THE ROLE OF LAW ENFORCEMENT
Even the best violence prevention plan cannot guarantee that

a violent act will never occur. While not every workplace incident
will reach the level of criminal conduct, cases that involve physical
assault or significant destruction of property or serious threats, espe-
cially with a weapon, will as a general rule require intervention by
law enforcement and possibly other public safety agencies as well.
Emergency response, however, is not the law enforcement
community’s only role in workplace violence. Employers should be
aware that establishing contact and exchanging information with
local police or sheriff’s departments before a violent act occurs can
be very helpful in developing and administering an organization’s
workplace violence program. An existing relationship and commu-
nication channel between an organization and local law enforcement
may also make the response more effective if an emergency arises.
Building owners should obtain clarification from local law
enforcement agencies regarding how certain police procedures are
handled including the procedures for reporting:
• The report of a suspicious person on the property or in the

building;
• Threats before any injury occurs;
• Conduct that creates fear, such as threatening, bullying, and

intimidation, but that may not be characterized as criminal; and
• A crime in progress at the facility.
As part of the Threat Management Team one person should be

chosen to serve as point person working with the police. Once the
communication channel has been established, the organization’s

representative can use it to:
• Make sure the police have the current census data in its record
system such as the address, telephone number(s) of the site; the
name and 24-hour information for the contact person(s); and
the physical layout of the site, including the main power and
water locations;
• Provide additional information needed such as fire and evacu-

ation plans, locations of hazardous materials or high value
goods;
• Find out if crime prevention outreach programs are offered that

would benefit the organization’s executives or employees;
• Ascertain the police policy on responding to non-criminal but

threatening behavior;
• Determine what information the organization will share with

police in such incidents;
• Help on planning for a situation that may create a heightened

risk of violence. Examples include layoffs, an adversarial ter-
mination, or knowledge that an employee is in an abusive per-
sonal relationship; and
• The estimated response time to reach the facility after an emer-

gency call.
A cooperative relationship with local police can also benefit

an organization by providing a channel to resources that can only
be accessed through law enforcement agencies. For example, if an
organization is concerned about a potentially dangerous employee,
and this cooperative relationship with law enforcement has been
established, the local police could contact the FBI’s National Center
for the Analysis of Violent Crime (NCAVC) at Quantico, Virginia. At

a police agency’s request, NCAVC may agree to conduct a violence
risk assessment and advise on possible intervention strategies, if the
employee is assessed as presenting a serious risk of violence.
Sources
U.S. Department of Health and Human Services, 1998. Understanding and Re-
sponding to Domestic Violence in the Workplace, Action Guide.
U.S. Department of Justice Office of Justice Programs Office for Victims of
Crime 2012 Resource Guide, Extending the Vision Reaching Every Victim,
National Crime Victims’ Rights Week April 22-28, 2012.
Chapter 8
Racial Harassment
Workplace violence is now recognized as a specific category
of violent crime that calls for distinct responses from employers,
law enforcement, and the community. This recognition is relatively
recent. Prior to the postal shootings that occurred in the 1980’s, the
little research and preventive efforts done to address the issue of
workplace violence focused on the issues of patient assaults on health
care workers and the high robbery/murder risks facing taxi drivers
and late-night convenience store clerks.
Job related mass murders by disgruntled employees are media-
intensive events. However, these mass murders, while serious, are
relatively infrequent events and represent only a small number of
workplace violence incidents. The majority of incidents that employ-
ees/managers have to deal with on a daily basis are lesser cases of
assaults, domestic violence, stalking, threats, harassment (including
sexual harassment), and physical and/or emotional abuse that do not
make the headlines.
HARASSMENT DEFINED
Harassment is a form of workplace violence and becomes illegal

when it violates the Civil Rights Act. Title VII of the Civil Rights Act
(Title VII) prohibits harassment of an employee based on race, color,
sex, religion, or national origin. The Age Discrimination in Employ-
ment Act (ADEA) prohibits harassment of employees who are 40 or
older on the basis of age; the Americans with Disabilities Act (ADA)
prohibits harassment based on disability; and the Genetic Informa-
tion Nondiscrimination Act of 2008 (GINA) prohibits harassment of
an employee based on genetic information. The United States Equal
Employment Opportunity commission (EEOC) oversees complaints
127
of harassment. All of the anti-discrimination statutes enforced by

the EEOC prohibit retaliation for complaining of discrimination or
participating in complaint proceedings.
Harassment is the unwelcome conduct that is based on race,
color, religion, gender, pregnancy, national origin, age (40 or older),
disability or genetic information. Harassment is two fold: it can pre-
cipitate a violent situation or result in a violent response from the
victim or person who has been harassed. Harassment becomes un-
lawful where 1) enduring the offensive conduct becomes a condition
of continued employment, or 2) the conduct is severe or pervasive
enough to create a work environment that a reasonable person would
consider intimidating, hostile, or abusive. Anti-discrimination laws
prohibit the following:
• Retaliation of employees for filing a discrimination charge,

• Testifying; or
• Participating in an investigation, proceeding, or lawsuit.
The law also prohibits certain employment practices that are

believed to discriminate against individuals in violation of these laws.
It is important to note that petty slights, annoyances, and isolated
incidents (unless extremely serious) are not unlawful. For conduct to
be unlawful, it must create a work environment that is determined to
be intimidating, hostile, or offensive.
According to the EEOC, offensive conduct may include, but is
not limited to offensive jokes, slurs, epithets or name calling, physi-
cal assaults or threats, intimidation, ridicule or mockery, insults or
put-downs, offensive objects or pictures, and interference with work
performance. Harassment can occur in a variety of circumstances,
including, but not limited to, the following:
• The harasser can be the victim’s supervisor, a supervisor in

another area, an agent of the employer, a co-worker, or a non-
employee;
• The victim does not have to be the person harassed, but can be
anyone affected by the offensive conduct; and
Racial Harassment 129
• Unlawful harassment may occur without economic injury to, or

discharge of, the victim.
EXAMPLES OF HARASSMENT—EEOC CASES
Harassment takes on many forms. Specific types of harassment

include physical and intellectual disability, sexual orientation/gender,
as well as the more commonly recognized forms of discrimination—
age, race, religion and national origin.
Listed below is a selected list of pending and resolved EEOC
cases involving racial harassment through June 2012:
Northern Star Hospitality D/B/A Sparx Restaurant: In March

2012, the EEOC filed a case against the company alleging that manag-
ers of a Menomonie, Wisconsin restaurant posted racist imagery and
then fired an African-American employee after he complained about
a picture of African-American actor Gary Coleman and a defaced
dollar bill. The dollar bill had a blackened face of George Washington
with a noose around his neck. The bill was taped to a cooler in the
restaurant. There were also swastikas on the bill and the image of a
man wearing a Ku Klux Klan hood. The managers of the restaurant
told the employee that it was “a joke.” The employee was terminated
within weeks of complaining about the racist imagery for having “a
bad attitude.” The case was filed in U.S. District Court for the Western
District of Wisconsin EEOC v. Northern Star Hospitality D/B/A Sparx
Restaurant (Civil Action No. 12-cv-214).
Sutter Transfer Service: The EEOC alleges that the Yuba City,
California based company allowed a supervisor to harass employees
with racial epithets, including the trucking company’s only African-
American driver. The dispatcher used racially offensive comments
when speaking to the driver. Other truck drivers witnessed the racial
harassment. One driver complained to management, but the company
still failed to take effective action and the harassment continued. The
case was filed in the United States District Court Eastern District of
California. EEOC v. Sutter Transfer Service Inc. (Case No. 2:11-cv-02569-

LKK-JFM).
Hamilton Growers, Inc./Southern Valley Fruit and Vegetables:

A case of discrimination based on national origin was filed by the
EEOC in September 2011. The company, located in Georgia, fired
nearly all American workers in favor of retaining Mexican workers
in the 2009 and 2010 growing seasons. At least 16 workers were fired
based on race and/or national origin. Race-based comments made
by a management official was part of the termination. Lesser job op-
portunities were given to the American workers, which resulted in
lower pay, as well as less desirable job assignments in favor of the
Mexican counterparts. EEOC v. Hamilton Growers, Inc. d/b/a Southern
Valley Fruit & Vegetable, Inc., United States District Court, Middle
District of Georgia, Valdosta Division (Case No. 11-CV-134).
Scully Transportation Services, Inc.: The EEOC alleged that for

many years, management officials from Scully used racial and ethnic
slurs when referring to its Latino manager and its non-white drivers.
Favorable terms, conditions, and driver runs were given preference to
the white drivers over the non-white drivers. Retaliatory terminations
were given to workers who reported the disparity and harassment.
When Miami-based Ryder System assumed ownership of Scully in
2011, the EEOC argued that Ryder is also liable for the discrimination
in the case as a successor corporation. The EEOC filed its lawsuit in
the U.S. District Court, Central District of California, Eastern Division.
EEOC v. Scully Distribution Services, Inc. and Ryder System, Inc., (Case
No. CV11-8090 CAS SPx).
Day & Zimmerman NPS: The Commission alleged that a fore-

man at a power plant in Astoria, Queens, subjected an African-Amer-
ican employee to both verbal and physical harassment. The conduct
included kicking and tripping the employee, making racially offensive
comments and telling racist jokes in the workplace. The Commission
alleged that Day & Zimmerman terminated the employee just two
days after he complained about the harassment. The EEOC filed suit
in U.S. District Court for the Eastern District of New York. EEOC v.
Day & Zimmerman NPS, Inc., (Civ. Action No. 11-civ. 04741).
Emmert International: The EEOC alleged that a project super-

intendent and other employees at the company routinely subjected
employees to unwelcome racial harassment, including frequent racial
slurs. These actions took place in 2009, when the company was work-
ing on a project to move a building in downtown Salt Lake City. The
project superintendent harassed at least one black employee and,
when the employee asked him to stop, the superintendent told him
he could leave the job if he didn’t like it. The company then isolated
that employee. At a later date that employee was not rehired by the
company because of his race and his earlier complaint. The company
also harassed and retaliated against a white employee in an interracial
marriage. The EEOC filed suit in the United States District Court for
the District of Utah, Central Division. EEOC v. Emmert Industrial d/b/a
Emmert International (Civil Action No. CIV-11-00920-CW).
U-Haul: The EEOC alleged that African American employees

were subjected to racially offensive comments by a white supervi-
sor and other employees at a Tennessee facility. Additionally, a parts
room employee subjected the African American employees to the
same offensive behavior by using racial slurs and refusing to let
African-Americans enter the parts room. The EEOC filed suit in the
U.S. District Court for the Western District of Tennessee, Western
Division. EEOC v. U-Haul (Civil Action No. 2:11-cv-2844).
Whirlpool Corporation: A case of race-based harassment was

resolved during a jury trial. It was found that Whirlpool violated
Title VII of the Civil Rights Act of 1964 when it failed to stop a white
male co-worker at a plant in Tennessee, from harassing an African
American female employee. For two months she was harassed be-
cause of her race and sex. The co-worker then physically assaulted
the black employee, inflicting serious and permanent injuries. Before
she was assaulted, the employee reported numerous incidents by the
co-worker to Whirlpool management. The company did nothing to
correct the situation. The trial established that as a result of the as-
sault, the employee suffered devastating permanent mental injuries
that prevented her from working again. In December of 2009, she was
awarded $1,073,261 in back pay, front pay and compensatory dam-
ages. A motion to alter or amend the judgment was denied. Whirlpool
appealed the judgment to the U.S. Court of Appeals for the Sixth
Circuit. It later dropped the appeal and agreed to settle the case with
the EEOC and plaintiff for $1 million and court costs in June 2012.
The plant where the discrimination occurred had closed during the
litigation period. EEOC v. Whirlpool Corp., (Civil Action No. 3:06-0593).
Couch USA: A racially hostile work environment for African

American males existed at Ready Mix USA LLC, doing business as
Couch Ready Mix USA LLC. A direct supervisor and manager at a
facility in Alabama used derogatory racial language and race based
name-calling. A noose was displayed in the worksite, and references
were made to the Ku Klux Klan. The company denied that racial
harassment occurred at its worksites. The consent decree settling the
suit awarded $400,000 in compensatory damages to be apportioned
among the seven class members. The two-year decree enjoins Ready
Mix from engaging in racial harassment or retaliation. It also requires
that the company conduct EEO training; modify its policies to ensure
that racial harassment is prohibited; and put a system in place for
investigating complaints. The EEOC will also monitor the reports of
complaints of harassment or retaliation. The EEOC filed suit against
Ready Mix USA LLC, doing business as Couch Ready Mix USA LLC
after first attempting to reach a pre-litigation settlement through its
conciliation process. EEOC v. Ready Mix USA (2:09-CV-923).
Findlay Honda: A parts manager at Shack-Findlay Automotive,

LLC, in Nevada made racially derogatory comments and jokes on a
near-daily basis. It was also found that stricter work-related rules were
imposed on black employees than on non-black employees. Two black
employees were eventually fired, one after communicating that he was
going to file a discrimination charge against the company. Findlay
Honda agreed to enter into a consent decree and pay $150,000 to two
black employees. Aside from the monetary relief for the victims, the
consent decree also requires that the company hire an outside EEO
consultant; distribute its policies and complaint procedures with re-
spect to workplace discrimination, harassment and retaliation; track
future complaints; and provide annual equal employment opportunity
training. EEOC v. Shack-Findlay Automotive, LLC d/b/a Findlay Honda
and Findlay Automotive Group, Inc. (Case No. 2:10-cv-01692-KJD-RJJ
D. Nev.).
IDM Group, LTD.: GES Global Energy Services, Inc., (GES)

formerly known as IDM Equipment, Inc. subjected African Ameri-
cans working at a plant in Houston to a racially hostile work envi-
ronment. Three employees were discharged after they complained.
Under the terms of the two-year consent decree settling the suit, the
company will pay $98,900 in relief. Non-monetary relief consists of
periodic training on laws that prohibit employment discrimination
for employees at that facility. The consent decree also requires that a
non-discrimination notice be posted at that specific location. EEOC v.
GES Global Energy Services, Inc. (Civil Action No. 4:10 cv 4977 in U.S.
Dist. Ct. S. D. Texas, Houston Division).
New York University: An African-born employee was subjected

to a hostile work environment that included degrading verbal harass-
ment. The supervisor of the mailroom in NYU’s library regularly
addressed the employee, a native of Ghana, with offensive slurs;
ridiculed the employee’s accented English; and expressed hostility
toward immigrants, particularly Africans. NYU will pay the employee
$210,000 in lost wages and damages, and implement university-wide
enhanced policies and complaint procedures. EEOC v. New York Univ.,
(No. 10-CV-7399, S.D.N.Y.).
Williams Country Sausage: The only African-American main-

tenance worker at the Tennessee based company was paid less than
the white workers. Raises and higher salaries were given to all
maintenance department employees except for the African-American
employee. He was subjected to a hostile work environment; the com-
pany allowed a supervisor to use racially offensive language. The

company agreed to pay $60,000 to resolve the lawsuit. The company
is under a five-year consent decree that enjoins the company from
further discrimination against employees based on race. The decree
requires annual training on employee rights under Title VII; requires
that Williams Country Sausage maintain records of racial harassment
complaints; provide annual reports to the EEOC; establish and enforce
a written policy ensuring employee protection from discrimination;
and post a notice to all employees about the lawsuit that provides the
EEOC’s contact information. EEOC v. Williams Country Sausage Co.,
(Civil Action No.1:10-cv-01263, W.D. Tenn.).
Eclipse Advantage: Eclipse Advantage, Inc., a transportation, lo-

gistics and distribution management company, violated federal law by
subjecting an African-American employee to racial discrimination and
retaliation at its Aldi Food Service warehouse in Hinckley, Ohio. As
part of a two-year consent decree, the company agreed to pay $60,000
to the discrimination victim; provide training to all management staff
on employee rights and employer obligations under Title VII. This
training will emphasize harassment and racial discrimination; other
provisions of the consent decree include promoting supervisor ac-
countability with regard to racial discrimination; and posting a notice
that informs employees of the lawsuit; and providing the EEOC’s
contact information to its employees. EEOC v. Eclipse Advantage, Inc.,
(No.1:10-cv-02001, N.D. Ohio consent decree).
YRC/Roadway Express: YRC/Roadway Express subjected black

employees at its Chicago Heights, Ill., and Elk Grove Village, Ill., facili-
ties to multiple incidents of hangman’s nooses, racist graffiti, racist
comments, and racist cartoons. Roadway and YRC subjected black
employees to harsher discipline and scrutiny than their white counter-
parts and gave more difficult and time-consuming work assignments
to its black employees. The black employees complained about these
conditions over the years, but effective corrective action was not taken.
Under the consent decree, YRC/Roadway Express agreed to pay $10
million dollars; not engage in discrimination because of race; and not
engage in retaliation against individuals who complain about racial

discrimination. The consent decree also requires the development of
revised anti-harassment policies; specific recordkeeping and report-
ing of complaints; and conduct annual anti-harassment training.
Additionally, the decree also requires YRC to retain consultants to
examine the company’s discipline and work assignment procedures
and recommend changes to prevent racial disparities. Finally, the de-
cree requires the appointment of a monitor to oversee the company’s
response to complaints and to report on the company’s compliance
with the decree. The monitor will report semi-annually to the court
and to the EEOC. EEOC v. Roadway Express, Inc., and YRC, Inc., Nos.
06-CV-4805 and 08-CV-555 and Bandy v. Roadway Express, Inc., and
YRC, Inc., No. 10-CV-5304 (N.D. Ill.).
Elmer W . Davis Inc.: Black employees at Elmer Davis, a roofing

company in Rochester, NY, were subjected to a pattern of race dis-
crimination, including harassment, unfair work assignments, failure
to be promoted, and retaliation for complaining about discrimination.
Their white foremen subjected dozens of African-American employees
to racial slurs. They were also exposed to nooses, racially offensive
graffiti and swastikas. The company agreed to pay $1 million in mon-
etary relief and is bound by a five-year consent decree. The decree
enjoins the company from engaging in further race discrimination
or retaliation; hire an EEO Coordinator to provide training, monitor
race discrimination complaints; and report to the EEOC on hiring,
layoff and promotion. EEOC v. Elmer W. Davis Inc., (No. 07-CV-06434,
W.D.N.Y. consent decree).
Big Lots: Big Lots violated Title VII of the Civil Rights Act of
1964 when it subjected a black maintenance mechanic and other black
employees to race harassment and discrimination at its Rancho Cu-
camonga, Calif., distribution center. An immediate supervisor and
co-workers made racially derogatory jokes, comments, slurs and
epithets. The company took no steps to prevent or correct the situa-
tion. The settlement includes total monetary relief of $400,000 to be
paid to least five employees along with a group of unidentified class
members. Big Lots also agreed to a two-year consent decree that calls
for the implementation of a new policy, training, procedures and
court monitoring to address harassment and discrimination in the
workplace. EEOC v. Big Lots, Inc. (CV-08-06355-GW(CTx) (C.D. Cal.)).
S&H Thomson, Inc. d/b/a/Stokes-Hodges GM Thomson: S&H

Thomson, Inc., doing business as Stokes-Hodges Chevrolet Cadillac
Buick Pontiac GMC, in Atlanta, allowed a white male management
consultant to subject an African American sales manager to a racially
hostile work environment over a four-month period. The sales man-
ager was subjected to humiliating and degrading comments every
time the consultant visited the dealership and almost always in the
presence of other people. After the black sales manager complained
about the derogatory comments, two white managers asked the con-
sultant to stop his discriminatory behavior. The consultant ignored
their requests to cease and continued to make the derogatory com-
ments. The consent decree settling the suit required the company
to pay $140,000. The company will also provide equal employment
opportunity training, reporting, and posting of anti-discrimination
notices. EEOC v. S&H Thomson, Inc., d/b/a Stokes-Hodges Chevrolet
Cadillac Buick Pontiac GMS, (S.D. Ga. consent decree).
Albertsons LLC: The EEOC filed three employment discrimina-

tion lawsuits against the company, a national grocery chain. The first
lawsuit alleged a pattern or practice of workplace harassment and
discrimination based on race, color and national origin at its Aurora,
Colorado distribution center. Minority employees were subjected to
derogatory comments and graffiti. Minority employees were given
harder work assignments and were more frequently and severely
disciplined than their white co-workers. Managers were aware of,
and participated in, the harassment and discrimination.
The second lawsuit alleged that dozens of employees complained
about the discriminatory treatment and harassment which resulted
in being given harder job assignments, passed over for promotion
and, in some cases, fired as retaliation. The third case alleged race
discrimination on behalf of a single African American employee at
the distribution center who was terminated. Albertson’s agreed to

pay $8.9 million and furnish other relief to settle the three lawsuits.
The monetary relief will be distributed among 168 former and current
employees. EEOC v. Albertsons LLC, (Civil Action No. 06-cv-01273,
No. 08-cv-00540, and No. 08-cv-02424 D. Colo).
GMRI, Inc. d/b/a Bahama Breeze: At Bahama Breeze, manag-

ers used numerous and persistent acts of racial harassment against
black employees including imitating speech and mannerisms of black
employees, and denying the employees breaks while allowing breaks
to white employees. Despite the employees’ complaints to manage-
ment, the race-based harassment continued. The company agreed
to pay $1,260,000 and provide significant remedial relief to 37 black
workers at the company’s Beachwood, Ohio, location. EEOC v. GMRI,
Inc. d/b/a/Bahama Breeze, (1:08-cv-2214 N.D. Ohio).
NPMG Acquisition Sub LLC: The Phoenix credit card pro-

cessing company allowed two supervisors to create and perpetuate
a racially hostile work environment against black employees. The
racially hostile workplace included severe verbal abuse consisting
of numerous racial slurs and epithets. The EEOC’s suit was filed on
behalf of three African American discrimination victims and a class
of nine similarly aggrieved employees. NPMG agreed to pay $415,000
and furnish significant remedial relief. In addition to the monetary
relief, the consent decree provided for extensive remedial relief,
including a written apology to the victims on company letterhead;
anti-discrimination training; written anti-discrimination policies;
discipline of discriminatory conduct and the posting of notices. EEOC
v. NPMG, Acquisition Sub, LLC, (No CV 08-01790-PHX-SRBD. Ariz.).
Patterson-UTI Drilling Company: A Native American, em-

ployed by Patterson-UTI Drilling Company for approximately five
months in 2005 was subjected to harassment based on his race. A
floor hand, or “roughneck,” on a drilling rig in Gilchrist Colorado,
he was subject to harassment that included numerous racial slurs
and derogatory comments that reflected negative stereotypes of Na-
tive Americans. His work was overly scrutinized by his supervisor,

who also made repeated negative comments to the employee in an
effort to “run him off.” Under the settlement, the company will pay
the victim $45,000 and will provide annual training for three years
to all of its Colorado employees on prohibited racial discrimination,
harassment, and retaliation. EEOC v. Patterson-UTI Drilling Company,
LP, LLLP, (07-cv-02034 WYD-CBS).
Jack In The Box: At a Jack in the Box restaurant in Nashville, a

white hostess was subjected to harassment because of her race. The
company failed to take prompt action to end the harassment when she
complained about it. Several African American coworkers repeatedly
called the white employee by obscene racial epithets. She was further
insulted when they learned she was pregnant with a mixed-race baby.
The company will pay $20,000 compensatory damages and provide
employment discrimination awareness training to all of its employees,
supervisors, and management at the restaurant where the white em-
ployee worked. Additionally, the restaurant will maintain records of
all complaints made of racial harassment at the restaurant and submit
reports to the Commission regarding the complaints. EEOC v. Jack in
the Box, (No. 3:08-cv-009663. M.D. Tenn.).
DHL Global: In October 2011 the EEOC filed suit against DHL
Global for subjecting a class of Hispanic employees to national origin
discrimination. The suit also alleges that DHL Global unlawfully re-
taliated against a non-Hispanic employee by firing him for reporting
the treatment of the Hispanic employees.
The suit alleges that Hispanic employees at DHL’s Dallas ware-
house were constantly subjected to taunts and derogatory names.
According to the EEOC, Hispanic workers, who included persons of
Mexican, Salvadoran and Puerto Rican heritage, were often ridiculed
by DHL personnel with slurs; other workers were identified with
derogatory stereotypes. The EEOC further asserts that harsh admoni-
tions to bilingual employees about use of their Spanish language were
motivated by prejudice, and as such, was unnecessary and unrelated
to the effective performance of the job duties.
Company officials ignored the complaints of employees even

after the discriminatory conduct was reported to management. The
suit also alleged that DHL retaliated against a union steward by
terminating his employment after he reported the mistreatment of
Hispanic employees to DHL officials on several occasions.
National origin discrimination in the workplace, including
national origin harassment, and retaliation for complaining about it,
violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit
after first attempting to reach a settlement through its conciliation
process. The EEOC sought injunctive relief, including the formula-
tion of policies to prevent and correct national origin discrimination
and retaliation. The suit also sought lost wages for the union steward;
compensatory damages and punitive damages for all the victims of
the company’s unlawful practices, including both actions and inac-
tions that resulted in harm.
While the company asserted that these statements were meant
only as “jokes,” the EEOC claimed that the statements were mean-
spirited bullying and unlawful conduct that violates the federally
protected rights of employees. The Commission filed suit in U.S.
District Court for the Northern District of Texas. EEOC v. DHL Global,
(Case No. 3:11-CV-02581-L).
EMPLOYER LIABILITY FOR HARASSMENT
As noted by the EEOC, an employer is automatically liable for

harassment by a supervisor that results in a negative employment ac-
tion such as termination, failure to promote or hire, and loss of wages.
If the supervisor’s harassment results in a hostile work environment,
the employer can avoid liability only if it can prove that: 1) it reason-
ably tried to prevent and promptly correct the harassing behavior;
and 2) the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory
employees or non-employees over whom it has control (e.g., indepen-
dent contractors or customers on the premises), if it knew, or should
have known about the harassment and failed to take prompt and
appropriate corrective action. (See negligent retention).
When investigating allegations of harassment, the EEOC looks at
the entire record; including the nature of the conduct, and the context
in which the alleged incidents occurred. A determination of whether
harassment is severe or pervasive enough to be illegal is made on a
case-by-case basis.
PREVENTION
Prevention is the best tool to eliminate harassment in the work-

place. Employers are encouraged to take appropriate steps to prevent
and correct unlawful harassment. They should clearly communicate
to employees that unwelcome harassing conduct will not be tolerated.
They can do this by establishing an effective complaint or grievance
process, providing anti-harassment training to their managers and
employees, and taking immediate and appropriate action when an
employee complains. Employers should strive to create an environ-
ment in which employees feel free to raise concerns and are confident
that those concerns will be addressed.
Employees are encouraged to inform the harasser directly that
the conduct is unwelcome and must stop. Employees should also
report harassment to management at an early stage to prevent its
escalation.
CO-WORKER HARASSMENT
Harassment can be carried out by not only supervisors and man-

agers, but co-workers as well. Management can be held responsible
for the acts of its harassing co-workers. In the case of Guardsmark,
a large security firm operating worldwide and with headquarters in
New York City and its administrative center based in Memphis Ten-
nessee, the EEOC sued Guardsmark for co-worker harassment of an
East Indian guard who was mocked for wearing his turban, for his
accent and for his age. He was also retaliated with an involuntary
transfer when he reported the discrimination and harassment. The
company took no action to address the harassment. Instead, the em-
ployee was involuntarily transferred, leading to reduced hours and
lost benefits. He ultimately resigned from the company.
Under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (ADEA), employers have a legal
obligation to stop discrimination based on national origin and age.
Both laws also strictly prohibit retaliation against workers who report
discrimination. The EEOC filed suit after first attempting to reach a
voluntary settlement. The suit seeks back pay and other monetary
losses, compensatory and punitive damages for the employee and
appropriate injunctive relief to prevent any future discrimination.
The EEOC noted that retaliation cases represent one of the fast-
est growing types of charges filed with the EEOC. In fiscal year 2010,
retaliation charge filings across the country spiked to a record 30,948
cases, representing an increase of 6 percent of the previous five years.
Sources
U.S. Equal Employment Opportunity Commission, Selected List of Pending
and Resolved EEOC Cases Involving Racial Harassment Since 2009, (as
of June, 2012). www.eeoc.gov/eeoc/litigation/selected/racial_harass-
ment.
Chapter 9
Sexual Harassment
It is unlawful to harass a person (an applicant or employee)
because of a person’s sex. Harassment can include “sexual harass-
ment” or unwelcome sexual advances, requests for sexual favors,
and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however,
and can include offensive remarks about a person’s sex. For ex-
ample, it is illegal to harass a woman by making offensive comments
about women in general.
Both victim and the harasser can be either a woman or a man,
and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand com-
ments, or isolated incidents that are not very serious, harassment is
illegal when it is so frequent or severe that it creates a hostile or of-
fensive work environment or when it results in an adverse employ-
ment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in
another area, a coworker, or someone who is not an employee of the
employer, such as a client or customer.
FACTS ABOUT SEXUAL HARASSMENT
The EEOC describes sexual harassment is a form of sex dis-

crimination that violates Title VII of the Civil Rights Act of 1964. Title
VII applies to employers with 15 or more employees, including state
and local governments. It also applies to employment agencies and
to labor organizations, as well as to the federal government.
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute sexual
harassment when this conduct explicitly or implicitly affects an indi-
143
vidual’s employment, unreasonably interferes with an individual’s

work performance, or creates an intimidating, hostile, or offensive
work environment.
Sexual harassment can occur in a variety of circumstances, in-
cluding but not limited to the following:
• The victim as well as the harasser may be a woman or a man.
The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the
employer, a supervisor in another area, a co-worker, or a non-
employee.
• The victim does not have to be the person harassed but could
be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic in-
jury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.
When a person is being harassed, the EEOC recommends that

the victim should inform the harasser directly that the conduct is un-
welcome and must stop. The victim should use any employer com-
plaint mechanism or grievance system available. Since the EEOC is
the agency charged with investigating charges of discrimination that
includes racial, national origin, and age discrimination, they are the
agency that investigates allegations of sexual harassment. The Com-
mission looks at the whole record of the charge or offense; it looks at
the circumstances including the nature of the sexual advances, and
the context in which the alleged incidents occurred. The facts of the
alleged incident will be investigated on a case-by-case basis and then
decide which cases to pursue. The Commission, then, will mitigate
the case either through a conciliation process or a trial.
Employers should take the steps necessary to prevent sexual
harassment from occurring. A policy of prevention is the best tool
to eliminate sexual harassment in the workplace. The employee
violence protection policy should include a clearly communicated
statement that sexual harassment will not be tolerated. As with
Sexual Harassment 145
the violence protection policy, training, communication and follow

through should be part of the plan. Sexual harassment training for
employees, establishing an effective complaint or grievance process
and taking immediate and appropriate action when complaints are
made should be part of the policy. And, again, this statement or pol-
icy should be communicated clearly and frequently to employees.
In addition to sexual harassment, it is also unlawful to retaliate
against an individual for opposing employment practices that dis-
criminate based on sex or for filing a discrimination charge, testify-
ing, or participating in any way in an investigation, proceeding, or
litigation under Title VII.
EXAMPLES OF SEXUAL HARASSMENT—EEOC CASES
Listed below are several sexual harassment cases brought on

by the EEOC that are either pending or resolved. The resolved cases
were determined by either the conciliation process or trial. Many of
these cases include not only sexual harassment but also racial ha-
rassment, intimidation and bullying.
Boh Brothers Construction Co.: Following a two-and-a-half-

day trial, a federal jury in New Orleans awarded $451,000 to an em-
ployee of Boh Brothers Construction Company for a male-on-male
sexual harassment lawsuit filed by the U.S. Equal Employment Op-
portunity Commission (EEOC). The former employee was awarded
$250,000 in punitive damages and $200,000 for emotional distress.
A superintendent harassed an ironworker with verbal abuse,
sexually taunting gestures, and exposing himself. The harassment
took place on the I-10 Twin Span project over Lake Pontchartrain
between Slidell and New Orleans, LA. The supervisor harassed him
because he thought he was feminine and did not conform to the su-
pervisor’s gender stereotypes of a typical “rough ironworker.” The
company retaliated against the employee for reporting the superin-
tendent’s harassment. He was transferred to another location, paid
less, and then “laid off,” because there was less work available at the
new location.
Sexual harassment and retaliation for complaining about it
violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit
after first attempting to reach a pre-litigation settlement through its
conciliation process.
The EEOC established that Boh Brothers had no policy that de-
fined or specifically prohibited sexual harassment. The superinten-
dent testified that before this lawsuit, he had never received training
on sexual harassment.
New Orleans-based Boh Brothers is a major construction con-
tractor that operates in the New Orleans and Gulf South areas. The
company employs more than 1,500 people on many projects, includ-
ing publicly funded post-Katrina rebuilding, repair and expansion
projects. EEOC v. Boh Brothers Construction Company, LLC (Civil Ac-
tion No. 09-6460).
Mid-American Specialties, Inc.: A U.S. District Court jury

awarded over $1.5 million in a trial for sexual harassment and
retaliation. The Memphis based company that distributes promo-
tional products and office supplies was found in violation for sex-
ual harassment and retaliation. The jury award included more that
$400,000 in compensatory damages and back pay to three former
employees and $1.1 million in punitive damages. Evidence at the
trial showed that two male managers at the company subjected fe-
male employees to severe, unwelcome sexual harassment. Accord-
ing to the testimony one manager exposed his genitals and forced
one of the women to place her hand on his private parts. There was
further testimony that another manager made demands for women
to participate in a “kissing” or smooching” club in order to receive
the sales leads and accounts necessary for the women to earn com-
missions. Because two of the women rejected the advances of the
managers and made complaints about the harassment, the com-
pany fired them. During the two-year time of the harassment, the
company had no sexual harassment policy, no training on sexual
harassment, and no reporting procedures. The human resources
manager testified that she did not even know the definition of
sexual harassment at the time of the events. EEOC v. Mid-American

Specialties, Inc. (Civil Action No. 2:09-cv-02203-JMP, U.S. Dist Ct
WD Tenn.).
KarenKim, Inc., d/b/a Paul’s Big M: A group of female em-

ployees, which included teenagers, were subjected to a sexually
hostile work environment by the grocery store’s general manager
for more than ten years. A federal district court jury returned a
$1,260,080 verdict against the Oswego, N.Y., grocery store.
The harassment included acts of verbal and physical sexual
conduct by the company’s general manager. The general manager
would suggest a threesome with one teenage cashier’s mother; stuck
his tongue in another teenage cashier’s mouth; and grabbed and
touched the breast and buttocks of other women.
Many women testified that the managers made sexual propo-
sitions, described his sex life with the female owner of the store
to whom he was engaged; made lewd gestures to employees; and
touched or grabbed them in their private areas. The longstanding
and ongoing relationship between the manager and the owner was
one of the reasons why the store and the owner refused to take action
in response to the repeated complaints about the sexual harassment.
The manager testified that he pled guilty in 2008 to one crimi-
nal count of harassment in the second degree in satisfaction of four
other charges after four women complained to the police. The owner
of the store testified that the manager was given only a 30-day paid
suspension following his guilty plea. The harassment continued
until the manager was fired in 2010 for sexually harassing another
young woman. The woman testified that she was pressured by the
company not to reveal the harassment or the reason for the man-
ager’s termination.
The EEOC reported that the company repeatedly failed to take
the necessary steps to stop the harassment, despite numerous com-
plaints to the management and the police. The working conditions
were such that some of the women were forced to quit. The EEOC
filed suite after first attempting to reach a pre-litigation settlement
through its conciliation process.
After the two-week trial the jury returned a verdict in favor of

the EEOC and awarded $1,250,000 in punitive damages against the
company. It awarded an additional $10,080 to ten women as com-
pensation for the emotional pain and suffering they endured. Total
damages awarded to the 10 women were $1,260,080. The EEOC also
asked the court to award injunctive relief designed to prevent future
discrimination. EEOC v. KARENKIM, INC., d/b/a Paul’s Big M Grocery
(No. 11-3309-cv), (2008-cv-01019).
M. Slavin & Sons Inc.: In addition to racial harassment, own-

ers and managers of the New York fish market sexually harassed
its black employees for many years. They were physically groped;
subjected to explicit physical and verbal sexual harassment and of-
fensive racial terms. Many of the men worked for the company for
10 to 20 years because they needed the work. The discrimination
charge was brought by a truck loader who reported the abuse. The
EEOC’s investigation subsequently disclosed that the misconduct
was widespread and involved many victims. The company agreed
to pay $900,000; revamp how the company addresses discriminatory
harassment and retaliation; and submit to 5 years of monitoring by
the EEOC. EEOC v. M. Slavin and Sons, Inc., (CV-09-5330).
Austin Foam Plastics: Austin Foam Plastics, Inc., a producer

and distributor of corrugated box and cushion packaging located
in Dallas, Texas subjected African-American employees to a racially
hostile work environment. In addition, two male employees were
subjected to a sexually hostile work environment and one was dis-
charged for opposing and reporting the misconduct. Black employ-
ees were subjected to discriminatory intimidation, ridicule, insults,
racially offensive comments and jokes, cartoons and images that
denigrated African-Americans. A female manager sexually harassed
male employees by subjecting them to unwelcome sexual comments
and unsolicited physical contact. She also conditioned more favor-
able terms of employment on acquiescence to her sexual advances
and overtures. The company agreed to pay $600,000 to settle the suit.
EEOC v. Austin Foam Plastics, Inc., (No. 1:09-cv-00180).
Cintas Fire Protection: Cintas Corporation, the largest uni-

form manufacturer in North America and a provider of specialized
services to businesses including fire protection, subjected a class
of African American and male employees to egregious sexual and
racial harassment by a co-worker with supervisory responsibilities
in the company’s fire protection unit at a Pennsylvania location. The
class members worked in the dry cell unit, which refurbishes and
refills customers’ portable fire extinguishers. The racial harassment
included referring to the dry unit as the “ghetto division”; call-
ing black employees nicknames; and using a racial epithet to two
African-American employees while stating that no one would be-
lieve their accounts about the harassment over company witnesses.
The company agreed to pay $152,500 in monetary relief to the class
members. EEOC v. Cintas Corp. (No. 1:09-cv-04449. E.D. Pa.).
Affordable Care, Inc.: Affordable Care, Inc., a national denture

provider, created a sexually and racially hostile work environment
for both an African American and a white employee, at its office in
West Springfield, Virginia. A dentist, affiliated with Affordable Care,
referred to women as “whining b-----s,;” propositioned a female em-
ployee for sex; spanked another female employee repeatedly on the
buttocks; made insulting remarks about blacks, and claimed that he
had a relative who was a member of the Ku Klux Klan. Both employ-
ees complained repeatedly about the dentist to Affordable Care, but
the company failed to stop the harassment. The company agreed to
pay $150,000 to the two employees and furnish other relief. EEOC v.
Affordable Care, Inc. (Civil Action No. 1:09-cv-10399).
Help at Home, Inc.: Help at Home, Inc., a company that pro-

vides home health care to elderly and disabled individuals in their
homes, violated federal law by allowing the company’s regional
director to sexually harass employees. The company also unlawfully
fired the victims and their supervisor for complaining.
According to the EEOC’s suit, in early September 2009, two
employees at the company’s Hillsboro, MO, office, complained to
the branch manager that the regional director sexually harassed
them. The harassment included graphic sexual comments made to

both women of sexual acts that the director performed with another
employee at the worksite. After the branch manager complained to
the vice president on behalf of her subordinates, all three were ter-
minated.
Title VII of the Civil Rights Act of 1964 prohibits employers
from allowing a sexually hostile environment in the workplace. It
also protects employees from retaliation based on their complaints
about violations of the law. The EEOC filed suit after first attempting
to reach a pre-litigation settlement through its conciliation process.
EEOC v. Help at Home, Inc. (Civil Action No. 4:12-cv-01498 U.S. Dist.
Ct. E.D. Missouri).
The Custom Companies, Inc.: A federal court jury in Chicago

returned a $2.355 million verdict in favor of the U.S. Equal Employ-
ment Opportunity Commission (EEOC) and three saleswomen who
experienced sexual harassment and retaliation while employed by
The Custom Companies, a Northlake, Ill. trucking company. The
verdicts included punitive damages in the amount of $2.05 million
and compensatory damages in the amount of $245,000. Additionally,
one woman was awarded $60,000 to compensate her for her ex-
penses in defending a retaliatory lawsuit filed against her by Custom
Companies.
The three female sales representatives were subjected to un-
welcome groping, lewd sexual language, sexual propositions, and
pornography. Custom Companies also sued one sales representative
because she complained to the EEOC. In addition, the EEOC main-
tained that female sales representatives were expected to entertain
the company’s customers and potential clients at a “gentlemen’s”
club owned by the chief executive of the company.
Evidence was presented at the trial that strippers in revealing
clothing were positioned around the course at company sponsored
golf outings for customers.
The EEOC noted that under the Civil Rights Act of 1991, the
maximum amount, which may be recovered, on any particular claim
in such cases is $300,000 and that, therefore, certain of the awards
made by the jury may be reduced in subsequent proceedings. The

EEOC’s lawsuit was filed May 28, 2002 in the U.S. District Court for
the Northern District of Illinois in Chicago and was captioned EEOC
v. Custom Companies, Inc. and Custom Distribution Network, Inc., (Civil
Action No. 02 C 3768 N.D. Ill. Nos. 02-C-3768 and 03-C2293).
Fry’s Electronics, Inc.: Fry’s Electronics, a chain of retail stores

that specializes in software, consumer electronics, computer hard-
ware and household appliances, agreed to pay $2.3 million and to
implement preventative measures to settle a sexual harassment and
retaliation lawsuit brought by the U.S. Equal Employment Opportu-
nity Commission (EEOC). The company was charged with harassing
a young salesperson and firing a supervisor for standing up for her.
An assistant store manager at the Renton, Washington facility
harassed a 20-year-old sale associate frequently sending her sexually
charged text messages and inviting her to his house to drink. After
her direct supervisor reported the harassment to the company’s le-
gal department, the company fired the supervisor. He was told that
his termination was due to a decline in his performance despite the
fact that his work was consistently commended.
Sexual harassment and retaliation for complaining about it
violate Title VII of Civil Rights Act of 1964. After attempting to reach
a voluntary settlement through conciliation, the EEOC filed the law-
suit.
The company attempted to have the employee, who joined the
case later, excluded from the EEOC’s litigation because her claim
wasn’t identical to that of the supervisor, who filed the original
charge. The judge rejected the company’s argument, and allowed the
EEOC to litigate on behalf of both.
Under the three-year consent decree the company agreed to
provide monetary relief to the employee and her supervisor and
take steps to prevent future harassment or retaliation. These steps
include ongoing training for all employees and management; report-
ing any complaints and the company’s responses to the EEOC; and
posting a notice for all its employees about the settlement as well
as contact information for reporting harassment, discrimination, or
retaliation. The suit was filed in U.S. District Court for the District of
Washington. EEOC v. Fry’s Electronics, Inc., (2:10-CV-1562-RSL).
DiMare Ruskin, Inc.: Supervisors at one of its Immokalee,

Florida locations subjected two female farm workers to unlawful
sexual harassment during their approximately three months of em-
ployment in the 2008-2009 growing season. The company fired the
women when they opposed the supervisors’ unlawful conduct.
This conduct violates Title VII of the Civil Rights Act of 1964.
The EEOC filed suit after first attempting to reach a pre-litigation
settlement through its conciliation process.
As part of a three year consent decree, DiMare Ruskin, Inc.,
a Florida-based tomato grower and produce provider, will pay
$150,000 to two female farm workers and take steps to prevent
and address unlawful harassment and retaliation at its farms and
facilities nationwide. Also the company will establish a nationwide
anti-harassment policy for employees to be able to communicate
complaints to the company; provide nationwide training to its man-
agement and non-management employees on anti-discrimination
laws; and provide information to the EEOC concerning its handling
of discrimination complaints for three years. EEOC v. DiMare Ruskin,
Inc. (Civil Action No. 2:11-cv-00158-UA-SPC, U.S. Dist. Ct. M.D.
Florida).
Missoula Mac, Inc.: The owner and franchisee of 25 McDon-

ald’s restaurants, has agreed to pay $1,000,000 and provide substan-
tial injunctive relief to resolve a class sexual harassment lawsuit filed
by the EEOC.
According to the suit, the company violated federal civil rights
laws at its Reedsburg, Wisconsin, McDonald’s by permitting male
employees to create a hostile work environment of sexual harass-
ment against female co-workers, some of whom were teenagers, and
then retaliating against those who complained about sexual harass-
ment.
Several male employees subjected female co-workers to sexual
harassment, including sexual comments, kissing, touching of their
private areas, and forcing their hands onto the men’s private parts.
Despite being notified of the situation, the company failed and re-
fused to take prompt and appropriate action to correct the harass-
ment and the resulting hostile environment, forcing at least one of
the harassed employees to quit. The company fired other harassed
employees after they complained repeatedly about their co-workers’
behavior. Three women previously employed at the restaurant filed
discrimination charges with the EEOC that led to the lawsuit.
Sexual harassment and retaliation for complaining about it vio-
late Title VII of the Civil Rights Act of 1964. The EEOC filed its suit
after first attempting to reach an out-of-court settlement through its
conciliation process.
A four-year consent decree resolved the suit. Under its terms,
Missoula Mac will pay out $1 million in compensatory damages to
10 former employees who experienced sexual harassment and retali-
ation during their employment at the Reedsburg McDonald’s. The
company will also (1) create an ombudsperson position responsible
for monitoring, soliciting and resolving complaints of sexual harass-
ment or retaliation; (2) establish telephone and email hotlines for
employees to report sexual harassment or retaliation; (3) evaluate its
managers’ and supervisors’ performance based in part on whether
their restaurants comply with anti-harassment and anti-retaliation
laws and policies; (4) track and maintain records of all sexual harass-
ment and retaliation complaints; (5) implement a comprehensive
training program to enable its employees to identify sexual harass-
ment and properly investigate internal complaints; (6) post notices
at all its restaurants informing employees that it has settled a sexual
harassment and retaliation lawsuit with the EEOC and publicizing
some settlement terms; and (7) provide periodic reports to the EEOC
showing it is complying with the terms of the decree. EEOC and
Dunse, Brown, and Gay v. Missoula Mac, Inc. d/b/a McDonald’s Restau-
rants. (No. 3:11-cv-00267-bbc).
Catie Food Systems, Inc.: Catie Food Systems, Inc., doing busi-
ness as a Hardy, Va., Wendy’s restaurant, violated federal law by
subjecting some of its female employees to sexual harassment.
According to the EEOC’s complaint, three female employees

were subjected to abuse by a male store manager at the company’s
restaurant located at Smith Mountain Lake in Hardy. The complaint
alleges that two employees who were crewmembers at the restau-
rant at the time of the harassment and another employee that was
a shift manager at the time. The harassment included crude and
offensive sexual comments, requests for sex and unwelcome touch-
ing of the women’s breasts and buttocks. The women complained
about the sexual harassment to managers within the company but
the harassment continued. The complaint further alleges that other
women who worked at the restaurant might have also been sexually
harassed by the same store manager.
Sexual harassment violates Title VII of the Civil Rights Act of
1964. In the lawsuit, the EEOC seeks compensatory and punitive
damages for the affected women, as well as injunctive and other
non-monetary relief. The EEOC filed suit against the Virginia based
company after first attempting to reach a voluntary settlement
through its conciliation process. The suit was filed in U.S. District
Court for the Western District of Virginia, Lynchburg Division.
EEOC v. Catie Food Systems, Inc., d/b/a Wendy’s Restaurant, (Civ. No.
6:12cv00042).
Management Hospitality of Racine, Inc.; Flipmeastack, Inc.

and Salauddin Janmohammed: A federal jury in Milwaukee re-
turned a $105,000 verdict following a four-day trial in a sexual ha-
rassment case brought by the EEOC.
A jury awarded $5,000 to two teenagers who worked at a
Racine, Wis., IHOP restaurant and who were sexually and physi-
cally harassed by their assistant manager, subjecting them to sexual
propositions, groping, and hair-pulling. Additionally, the jury found
that the restaurant acted recklessly with respect to one of the servers
and awarded her $100,000 in punitive damages. The EEOC said that
punitive damages may be awarded by juries to punish such conduct
and to discourage it in the future.
The IHOP at which the servers worked, and where they were
harassed, was owned by Salauddin Janmohammed, and managed
by a management consulting firm, Flipmeastack, owned by his wife.

In defending the case, the IHOP contended that the restaurant had a
strong policy against sexual harassment and that the victim’s com-
plaints about the harassment were not sufficient.
The case was filed by the EEOC in 2006. Management Hospital-
ity of Racine was one of approximately 20 IHOP restaurants located
in Wisconsin, Illinois and Iowa owned by Janmohammed, and man-
aged by Flipmeastack. EEOC v. Management Hospitality of Racine, Inc.,
et al., (Case No. 06-C-0715 E.D. Wis.).
MKB Construction Company: MKB Construction, based in

Phoenix, Arizona, will pay $38,500 and furnish other relief to settle
a retaliation discrimination lawsuit filed by the U.S. Equal Employ-
ment Opportunity Commission (EEOC). The EEOC had charged
the company with violating federal law by firing an employee for
reporting sexual harassment.
An employee at an MKB work site in El Paso was subjected to
a sexually hostile work environment by a male co-worker. The ha-
rasser made sexual comments about the man and pressed against the
victim in a sexual manner, the EEOC said. When the victim reported
the harassment to a supervisor, he was fired in retaliation.
Retaliating against employees who oppose what they rea-
sonably believe to be discriminatory conduct violates Title VII
of the Civil Rights Act of 1964. The EEOC filed suit after first at-
tempting to reach a pre-litigation settlement through its concilia-
tion process.
The two-year consent decree settling the suit prohibits the
company from engaging in any further retaliation-based conduct
prohibited by the Title VII, and requires the company to pay $38,500
to the harassment victim. Additionally, the company must issue an
effective anti-discrimination policy; post a notice of intent to comply
with discrimination and retaliation laws; and provide training to its
managers, supervisors and human resources personnel. The EEOC
filed suit in U.S. District Court for the Western District of Texas,
El Paso Division. EEOC v. MKB Construction Co., (Civil Action No.
3:11-cv-00404-KC).
The Good Fork, Fuzia Restaurant Group, Inc.: The Good Fork,
formerly known as Fuzia Restaurant Group, Inc., which operates
three restaurants in Morgan Hill, California, violated federal law
when it terminated a worker after she complained to management
about sexual harassment.
The EEOC’s investigation found that shortly after a Fuzia
dishwasher notified the owner of an incident where her supervisor
flashed his buttocks at her, she was not allowed to clock in for her
shift and was informed that the restaurant had no more work for her.
The agency also noted that Fuzia Restaurant did not have formal
policies or procedures for addressing discrimination or harassment.
Title VII of the Civil Rights Act of 1964 prohibits employers
from retaliating against employees for reporting sexual harassment
in the workplace. After first trying to reach a voluntary pre-litigation
settlement through its conciliation process, the EEOC filed suit.
The agency seeks monetary relief, including punitive damages;
compensatory damages and back pay for the employee; and the
implementation of formal policies and procedures regarding sexual
harassment and retaliation in the workplace to prevent a recurrence
of these issues. The EEOC filed suit in U.S. District Court for the
Northern District of California, San Jose Division. EEOC v. The Good
Fork, (Civil Action No. CV-12-4386 PSG).
SUMMARY
As seen with the above cases, harassment is not only a single

issue experienced by many employees. Sexual harassment can be
coupled with racial harassment, intimidation and bullying. Retali-
ation for reporting the harassment or speaking out against it is ac-
tionable by the EEOC. Although the EEOC resolves many cases by
consent decree, they are always ready to take cases to trial. When
sexual harassment cases do go to trial, juries often require employers
to pay large damage awards.
According to the EEOC, in Fiscal year 2011 there were 37,334
retaliation charges filed. These charges represented 37.8% of all
charges filed with the EEOC. That number represented the highest
percentage of any claim for that year, and the highest number of re-
taliation charges ever received by the EEOC in any fiscal year.
Sources
U.S. Equal Employment Opportunity Commission, Facts About Sexual Harass-
ment FSE/4. Document modified December 14, 2009. www.eeoc.gov/
facts/fs-sex.html
U.S. Equal Employment Opportunity Commission, Selected List of Pending
and Resolved EEOC Cases Involving Racial Harassment Since 2009, (as
of June, 2012). www.eeoc.gov/eeoc/litigation/selected/racial_harass-
ment.
Chapter 10
Disabilit y Harassment
WORKPLACE VIOLENCE AND THE PHYSICALLY

OR MENTALLY DISABLED
Employers and co-workers can, at times, engage in actions

and/or words that can be illegal. Offensive remarks about a person’s
disability as is the case with all other forms of harassment, is harass-
ment and is a part of violence in the workplace. Simple teasing, off-
hand comments, and isolated incidents that are not very serious are
not illegal. Harassment is illegal, however, when it is so frequent or
severe that it creates a hostile and/or offensive work environment or
when an adverse employment decision such as a demotion or firing
occurs.
The harasser can be the victim’s supervisor, a supervisor in
another area, a co-worker, or someone who is not an employee of
the employer, such as a client or customer. This harassment falls
under the FBI’s Category 3 form of workplace violence—violence
against coworkers, supervisors, or managers by a present or former
employee(s).
DISABILITY DEFINED
It is illegal to harass an applicant or employee because of a

current disability or a past disability. Not everyone with a medical
condition is protected by the law. In order to be protected, a person
must be qualified for the job and have a disability as defined by the
law. According to the EEOC, an individual with a disability is a per-
son who:
159
• Has a physical or mental impairment that substantially limits

one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.
A qualified employee or applicant with a disability is an in-

dividual who, with or without reasonable accommodation, can
perform the essential functions of the job in question. Reasonable
accommodation may include, but is not limited to:
• Making existing facilities used by employees readily accessible

to and usable by persons with disabilities;
• Job restructuring, modifying work schedules, reassignment to a

vacant position; and
• Acquiring or modifying equipment or devices, adjusting or

modifying examinations, training materials, or policies, and
providing qualified readers or interpreters.
ENFORCEMENT
The EEOC is responsible for enforcing federal laws that make

it illegal to discriminate against a job applicant or an employee be-
cause of the person’s race, color, religion, sex (including pregnancy),
national origin, age (40 or older), disability or genetic information.
It is also illegal to discriminate against a person because the person
complained about discrimination, filed a charge of discrimination,
or participated in an employment discrimination investigation or
lawsuit.
EEOC laws cover most employers with at least 15 employees or
20 employees in cases of age discrimination. Most labor unions and
employment agencies are also covered. The laws apply to all types
of work situations, including hiring, firing, promotions, harassment,
training, wages, and benefits.
Disability Harassment 161
The EEOC has the authority to investigate charges of discrimi-

nation against employers who are covered by the law. Their role in
an investigation is to fairly and accurately assess the allegations in
the charge and then make a finding. If a finding of discrimination
has occurred, all attempts will be made to settle the charge. If the
Commission cannot make a successful settlement, they have the au-
thority to file a lawsuit and will file a lawsuit to protect the rights of
individuals and the interests of the public. They do not, however, file
lawsuits in all cases where discrimination is found.
DISABILITY HARASSMENT AND INTIMIDATION—

EEOC CASES
Following are examples of cases involving harassment and

intimidation based on disabilities that were resolved either through
settlement, or adjudicated through a trial. These cases are current
through July 2012:
Dillon Companies, Inc., owners of the King Soopers super-

market chain in Colorado, will pay $80,000 to a mentally challenged
employee who worked at its Lakewood, Colorado store and furnish
other relief to settle a disability discrimination lawsuit.
The company’s supervisors, a head clerk, and a service man-
ager repeatedly subjected a ten-year employee to repeated bullying
and taunting because of his learning disability. This harassment ul-
timately led to the employee’s termination violating the Americans
with Disabilities Act (ADA). The EEOC filed suit after first attempt-
ing to reach a pre-litigation settlement through its conciliation pro-
cess.
Additionally, the company will provide training to all of its su-
pervisors and managers about the ADA and how to properly inter-
act with employees with special needs. The company will also make
periodic reports to the EEOC concerning all complaints of disability
discrimination for three years. EEOC v. Dillon Companies, Inc., (Case
No. 09-cv-02237-ZLW-MEH).
Hill Country Farms d/b/a Henry’s Turkey Service: A judge

ruled that the company violated the Americans with Disabilities Act
(ADA) by paying 32 workers with intellectual disabilities severely
substandard wages. The court ordered the company, based in Texas,
to pay its former employees lawful wages totaling $1.3 million for
jobs they performed under contract at a turkey processing plant in
West Liberty, Iowa, between 2007 and 2009.
In its lawsuit, the EEOC alleged that Henry’s Turkey exploited
a class of disabled workers because their intellectual impairments
made them vulnerable and unaware of the extent to which their le-
gal rights were being violated.
The judge found that the employees should have been com-
pensated at the average wage of $11-12 per hour, reflecting pay
typically earned by non-disabled workers who performed the same
or similar work. Instead the company paid the disabled workers
the total of $65 dollars per month during their contracted time to
work on an evisceration line at the plant. The EEOC’s wage claims
for each worker ranged from $28,000 to $45,000 in lost income over
the course of their last two years before the Henry’s Turkey Service
operation was shut down in February 2009.
In its motion for partial summary judgment, the EEOC argued
that Henry’s Turkey Service was not justified in paying disabled
workers wages that were lower than the minimum wage for Iowa
where they lived and worked, and that the disabled workers, some
of whom had performed the work for over 25 years, were due the
same wage rate as non-disabled workers. A statement of a West
Liberty Foods supervisor stated that the contracted Henry’s workers
were as productive as other workers in the plant, and that they actu-
ally demonstrated their knowledge and skills to persons who were
being hired to replace them as the Henry’s Turkey contract opera-
tions were winding down.
Evidence was also submitted from West Liberty Foods records
showing that while the plant paid Henry’s Turkey Service as much
as $11,000 per week for the work performed by the crew of 25-30 dis-
abled men, the company paid the men only an average of $15 each
per week.
The company maintained that it should be credited with wages

for providing a 100-year-old former schoolhouse as living quarters.
The EEOC submitted evidence, however, from various witnesses,
including admissions by Henry’s supervisors, that the “bunk-
house”—from which the men were later evacuated—was closed
down by the state fire marshal as unsafe, its heating was inadequate,
the bug-infested building had rodent problems, and the roof was in
such disrepair that buckets were put out to catch water pouring in.
The EEOC’s position, supported by testimony of the U.S. Depart-
ment of Labor, was that it was unlawful for the company to deny the
disabled workers their full wages and benefits by claiming a “credit”
for these substandard living conditions.
An expert witness supported the EEOC’s claims that the com-
pany’s plan involved purposeful financial exploitation of the trusting
workers. The expert witness concluded that the company’s conduct
“including acts of deliberate misrepresentation” about wages and ex-
penditures, was profit-driven and deprived the workers of “economic
independence and self-sufficiency.” She further declared that the com-
pany “took advantage of the workers … knowing that they would not
likely be discovered because the workers were disabled.”
According to the testimony, company officers were deducting
about $1,000 per month from each employee’s wages to cover the
company’s alleged room, board and expenses. At the same time they
were pulling out hundreds of dollars per month from each of the
men’s personal Social Security SSI and disability benefit accounts to
reimburse themselves for the same ‘expenses’.
In addition to the discriminatory pay practices, the suit also
alleged that the company subjected the disabled workers to abusive
verbal and physical harassment including referring to the workers
as “retarded,” “dumb ass,” and “stupid.” Other harassment includ-
ed hitting, kicking, unnecessarily restricting the employees freedom
of movement; imposing harsh punishments; requiring workers to
live in deplorable and sub-standard living conditions; paying them
only $65 a month for full-time work; and failing to provide adequate
medical care. Despite repeated complaints the company’s supervi-
sors, the caretakers assigned to the workers failed to take action.
Further proceedings on disability-based abuse and harassment

allegations are planned. The trial on these remaining issues regard-
ing mistreatment of the workers is currently scheduled for March
2013. EEOC v. Hill Country Farms, Inc., d/b/a Henry’s Turkey Service,
(No. 3:11-CV-00041 S.D. IA).
Target Corporation: The employee, a cart attendant with ce-

rebral palsy, limited intellectual functioning and a seizure disorder,
was denied a job coach as a reasonable accommodation. When the
employee was initially hired, the company provided him with a job
coach to assist him in his tasks as part-time stocker. He subsequently
held the position of cart attendant and continued to request reason-
able accommodation. The company failed to ensure the presence of
a job coach during work-related and job performance meetings. The
company also reduced the employee’s work hours after he returned
from a medical leave of absence. The case was resolved July 21, 2011
by the Los Angeles District Office and settled for $160,000 in mon-
etary and injunctive relief. EEOC v. Target Corporation (Case No. SA
CV 09-0963 AG (ANx)).
Auto Zone, Inc.: A federal court jury in Peoria, Illinois returned

a verdict of $600,000 against Auto Zone for failing to provide a rea-
sonable accommodation to a disabled sales manager. There is an ad-
ditional claim for $115,00 in back pay that, at the time of this writing,
had not yet been decided.
The sales manager was required to perform certain cleaning
tasks, including mopping floors, which violated his medical restric-
tions. He is disabled with permanent back and neck impairments.
Evidence was presented that mopping floors was a non-essential
function of the position; mopping floors could have been reassigned;
and that the employee in question could perform all of the essential
functions of his job. The sales manager testified that he asked not to
be assigned mopping and supported his request with documenta-
tion of his impairment. New store management, however, refused
the request and required the employee to mop, leading to further
injury and necessitating a medical leave.
The company’s actions violated the Americans With Disabili-

ties Act (ADA), which requires that employers make reasonable ac-
commodations to the known physical limitations of employees with
disabilities. Under the ADA, a reasonable accommodation may in-
clude the elimination or modification of a non-essential job duty, or
the transfer of a non-essential job duty to another employee. EEOC
v. Auto Zone, Inc. (Civil Action No. 07-C-1154).
Alstrun, LLP d/b/a McDonald’s: The employee, a parking lot

and lobby worker at the restaurant, was discriminated against when
he was harassed by his supervisor, other managers and co-workers
because of his intellectual disability. He was called derogatory
names such as “dumb,” “retarded” and “stupid” as well as physical
shoving, grabbing and threats. The company failed to prevent the
harassment despite repeated complaints. The employee was forced
to quit. The case was resolved March 2, 2010 by the Philadelphia
District Office and settled for $90,000 and injunctive relief. EEOC v.
Alstrun LLP, d/b/a McDonald’s (Civil Action No. 09-4347).
Moore and Moore, Inc. and Clayton Ranch Market Inc., d/b/a
Clayton Ranch Market: The defendant, an applicant with an intel-
lectual disability, was denied a job because of his disability. The
company, a grocery store located in New Mexico, refused to hire him
even though he was qualified for the available job positions. The
case settled for $30,000.00 in monetary relief and injunctive relief
such as training, postings, and reporting. EEOC v. Moore and Moore,
Inc. and Clayton Ranch Market Inc., d/b/a Clayton Ranch Market
(CIV1:09-00951).
Swissôtel Employment Services L.L.C. and Swissôtel Chi-

cago, Inc.: The employee, who worked as a steward cleaning floors
and washing dishes, was subjected to a hostile work environment
due to his mental impairment. His supervisor called him a “retard,”
swore at him, and threatened to have him fired. He also scheduled
the employee to back-to-back shifts—something that was not re-
quired of other employees. Despite repeated complaints to the hu-
man resources department, the company failed to take corrective

action. The company terminated the employee in retaliation for
having complained of discrimination. The case settled for $90,000 in
monetary damages and injunctive relief. EEOC v. Swissotel Employ-
ment Services, L.L.C and Swissotel Chicago, Inc., (No. 08-5131 (N.D.
Ill.)).
WalMart Stores, Inc.: Because of his disability the company

did not hire an applicant with cerebral palsy. When he appeared for
his interview he was in a wheelchair. The company told him he was
best suited for the greeter position. However, the company refused
to offer him any job; it argued that he would pose a safety risk to
himself or customers if he worked at the store using a wheelchair or
crutches. The case was dismissed at summary judgment stage but re-
versed on appeal by 8th Circuit. The case settled for $300,000 in mon-
etary damages and injunctive relief including notification to Kansas
City-area job services agencies stating the company encourages ap-
plications from persons with disabilities. The Commission alleged
that WalMart violated Title I of the Americans with Disabilities Act
(ADA) when it refused to hire the applicant. EEOC v. WalMart, (No.
04-cv-0076 (W.D. Mo)).
Capital Pizza Huts, Inc., d/b/a Capital Pizza Huts of Ver-

mont: A dishwasher/cleaner with Down syndrome was discharged
because of his disability. The employee worked thirteen years for
the company. He was fired after the manager notified employee’s
mother and the state healthcare and rehabilitation agency that the
defendant “should not lose money by paying [the employee] to do
nothing when he could have someone ‘normal’ doing the job. These
kinds of people shouldn’t work,” he added. The manager was sub-
sequently fired for poor judgment and rudeness to various Pizza
Hut employees. The case settled for $55,000 in monetary relief and
injunctive relief, including an offer of reinstatement to the employee
and a designation of liaison to job coach/placement agency for per-
sons with disabilities. EEOC v. Capital Pizza Huts, Inc., d/b/a Capital
Pizza Huts of Vermont (No. 1:05-cv-00265-jgm (D. Vt.))
Luby’s, Inc.: A floor attendant with an intellectual disability

was subjected to a hostile work environment because of her disabil-
ity. The company, a restaurant chain in Arizona, had accommodated
the charging party by providing a job coach for her. Circumstances
changed however, when a new manager took over. The new man-
ager refused to repeat instructions, berated her, told her to “shut up”
when she asked about her job duties, and got impatient and angry
with her for working and speaking slowly. The new manager also
permitted coworkers to mimic her speech, tease her about stutter-
ing, bark at her, and threaten to hurt her with a bread slicer. Despite
repeated complaints, no action was taken. The employee was retali-
ated against and forced to resign, i.e. constructively discharged. The
case settled for $90,000 in monetary damages and injunctive relief
as well as attorney’s fees in amount of $60,000. EEOC v. Luby’s Inc.,
(2:04-cv-01094-DGC (D. Ariz.)).
The Home Depot USA, Inc.: A sales associate with intellectual

disability, working at a New York location, was denied a reasonable
accommodation and subsequently discharged because of her dis-
ability. She was fired after 5 months on the job for failing to report to
work on three consecutive weekends. The employee and her father
notified the company that unidentified persons instructed her over
the phone not to show up on those weekends. The company fired her
despite her claim and without communicating with her job coach.
The case settled for $75,000 in monetary damages and injunctive
relief. The case was resolved on October 17, 2005 by the New York
District Office.
Spylen of Denville, Inc., d/b/a/ Wendy’s: An employee with

Down syndrome was repeatedly harassed by management staff and
coworkers which included name calling, the use of profanities, and
physical assaults. The assaults included co-workers placing a knife
against his stomach, putting ice down his clothes, throwing water
in his face, and shoving him. The company, a fast food restaurant
located in New Jersey, did not take corrective action. The employee
was forced to resign, i.e. constructive discharge. The case was settled
for $90,000 in monetary relief and injunctive relief. The company

was enjoined from violating the ADA, and specifically from creating
or tolerating a disability-based hostile work environment. The settle-
ment agreement was entered in 2004.
Renaissance Roofing, Inc.: A roofer with intellectual disabili-

ties was subjected to harassment, failure to recall and discharged
because of his disability, a mild mental retardation. The company’s
owners and management repeatedly made disparaging comments
such as “stupid” and “doufus,” and asked the employee whether
was “just stupid or retarded.” The case settled for $50,000 in mon-
etary relief ($9,000 of which was for attorney’s fees) and injunctive
relief. The company is located in Belvidere, Illinois. EEOC v. Renais-
sance Roofing, Inc. (Case No. 02 C 50370 W.D. Ill.)) The case was re-
solved in June 2003 by the Chicago District Office.
GMRI, Inc., d/b/a The Olive Garden: A dishwasher with intel-

lectual disabilities, working in a New York restaurant, was subjected
to physical and verbal harassment by co-workers due to his disabil-
ity. The harassment included but was not limited to putting him in a
headlock, pulling down his pants in front of coworkers, and calling
him offensive names. When he began to have difficulty on the job
because of the abuse, the company fired him. The case settled for
$115,000 in monetary relief and injunctive relief. It was resolved in
April 2002 by the New York District Office.
CEC Entertainment Inc., d/b/a Chuck E. Cheese: A custodian

with intellectual disabilities, working in a Milwaukee area restau-
rant, was fired by the company’s district manager because he did
not want “those people” working in restaurant. The jury rejected
the company’s argument that the employee suffered no more than
minimal, if any, pain and suffering because his mental retardation
prevented him from experiencing much distress from being fired.
The jury awarded the employee $70,000 in compensatory damages
for emotional distress and $13 million in punitive damages; because
of the statutory cap on damages the award was reduced to $230,000.
The judge also ordered the company to provide back pay and rein-
state the employee. EEOC v. CEC Entertainment, Inc., d/b/a Chuck E.
Cheese Pizza (No. 98-C-698-X (WD Wis, 2000)).
THE AMERICANS WITH DISABILITIES ACT (ADA)

AMENDMENTS ACT OF 2008
On September 25, 2008, President George W. Bush signed the

ADA Amendments Act of 2008 (“ADA Amendments Act” or “Act”).
The Act emphasizes that the definition of disability should be con-
strued in favor of broad coverage of individuals to the maximum
extent permitted by the terms of the ADA and generally shall not
require extensive analysis.
The Act makes important changes to the definition of the term
“disability” by rejecting the holdings in several Supreme Court deci-
sions and portions of EEOC’s ADA regulations. The effect of these
changes is to make it easier for an individual seeking protection
under the ADA to establish that he or she has a disability within the
meaning of the ADA.
The Act retains the ADA’s basic definition of “disability” as an
impairment that substantially limits one or more major life activities,
a record of such an impairment, or being regarded as having such an
impairment. However, it changes the way that these statutory terms
should be interpreted in several ways. Most significantly, the Act:
• Directs the EEOC to revise that portion of its regulations defin-

ing the term “substantially limits”;
• Expands the definition of “major life activities” by including

two non-exhaustive lists:
— The first list includes many activities that the EEOC has
recognized such as walking along with activities that were
not specifically recognized such as reading bending, and
communicating.
— The second lists includes major bodily functions (e.g.,
“functions of the immune system, normal cell growth,

digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions”).
• States that mitigating measures other than “ordinary eyeglasses

or contact lenses” shall not be considered in assessing whether
an individual has a disability;
• Clarifies that an impairment that is episodic or in remission is

a disability if it would substantially limit a major life activity
when active;
• Changes the definition of “regarded as” so that it no longer re-

quires a showing that the employer perceived the individual to
be substantially limited in a major life activity, and instead says
that an applicant or employee is “regarded as” disabled if he or
she is subject to an action prohibited by the ADA (e.g., failure to
hire or termination) based on an impairment that is not transi-
tory and minor; and
• Provides that individuals covered only under the “regarded as”

prong are not entitled to reasonable accommodation.
The ADA Amendments Act became effective January 1, 2009.

EEOC’s regulations to implement the equal employment provisions
of the ADA Amendments Act were effective as of March 25, 2011.
The EEOC will be evaluating the impact of these changes on its en-
forcement guidance and other publications addressing the ADA.
SUMMARY
Regardless of company/organization’s size, the EEOC is ready
to further the public interest in cases of discrimination. Although
most cases are resolved through conciliation or settlement, the
agency is prepared to go to trial. A jury trial can be lengthy and
costly. Under the ADA, a reasonable accommodation may include
the elimination or modification of a non-essential job duty, or the

transfer of a non-essential job duty to another employee.
Sources
U.S. Equal Employment Opportunity Commission, Selected List of Pending and
Resolved Cases Involving Intellectual Disabilities, (as of July, 2012), www.
eeoc.gov/eeoc/litigation/selected/intellectual_disabilities.cfm.
U.S. Equal Employment Opportunity Commission, Notice Concerning The
Americans With Disabilities Act (ADA) Amendments Act of 2008, www.eeoc.
gov/laws/statutes/adaaa_notice.cfm.
Appendix A—Part I
2011 Workplace Data (Preliminary)
(See footnotes on page 194)

173
Appendix A—2011 Workplace Data (Preliminary) 175
Footnotes
Appendix A—Part II
195
Appendix A—Part III
Table 1. Fatal occupational injuries by event or exposure, 2011p
211
Table 2. Fatal occupational injuries by industry and selected event or exposure, 2011p
212
Appendix A—2011 Workplace Data (Preliminary)
Table 2. (Continued) 213
Table 3. Fatal occupational injuries by occupation and selected event or exposure, 2011p 214
Table 4. Fatal occupational injuries by selected worker characteristics and selectred event or exposure, 2011p 216
Table 5. Fatal occupational injuries by state and event or exposure, 2010-2011
218
Table 6. CFOI participating agencies and telelphone numbers

Appendix B—Part I
2010 Workplace Data
221
Appendix B—2010 Workplace Data 223
Table B-1. Fatal occupational injuries by industry and event or exposure, All United States, 2010
Appendix B—Part II
2010 Workplace Data
234
Table B-1. (Continued)


Appendix C
Occupational Homicides by
Selected Characteristics—2010
(See footnotes on page 269)

259
Appendix C—Occupational Homicides 261
Appendix D
Potential Abatement Methods

The employer may use any one or combination of the following
abatement methods to materially reduce or eliminate the hazard of
workplace violence. Other references should also be reviewed to de-
termine the most effective methods applicable to the workplace.
General recommendations for all industries and administrative
workplaces:
• Conduct a workplace violence hazard analysis (this includes

analyzing vehicles used to transport clients).
• Assess any plans for new construction or physical changes to the
facility or workplace to eliminate or reduce security hazards.
• Provide employees with training on workplace violence.
• Implement Engineering Controls, such as:
— Install and regularly maintain alarm systems and other
security devices, panic buttons, hand-held alarms or noise
devices, cellular phones and private channel radios where
risk is apparent or may be anticipated. Arrange for a reliable
response system when an alarm is triggered.
— Provide metal detectors—installed or hand-held, where ap-
propriate—to detect guns, knives or other weapons, accord-
ing to the recommendations of security consultants.
— Use a closed-circuit recording on a 24-hour basis for high-
risk areas.
— Place curved mirrors at hallway intersections or concealed
areas.
— Lock all unused doors to limit access, in accordance with lo-
cal fire codes.
— Install bright, effective lighting, both indoors and outdoors.
271
— Replace burned-out lights and broken windows and locks.

— Keep automobiles well maintained if they are used in the
field.
— Lock automobiles at all times.
• Implement Administrative Controls—to change work practices

and management policies in order to reduce exposure to haz-
ards. Such controls include:
— Establish liaisons with local police and state prosecutors.
Report all incidents of violence. Give police physical layouts
of facilities to expedite investigations.
— Require employees to report all assaults or threats to a su-
pervisor or manager (in addition, address concerns where
the perpetrator is the manager). Keep log books and reports
of such incidents to help determine any necessary actions to
prevent recurrences.
— Advise employees of company procedures for requesting
police assistance or filing charges when assaulted and help
them do so, if necessary.
• Provide management support during emergencies. Respond

promptly to all complaints.
— Set up a trained response team to respond to emergencies.
— Use properly trained security officers to deal with aggressive
behavior. Follow written security procedures.
• Develop a written, comprehensive workplace violence preven-

tion program, which should include:
— A policy statement regarding potential violence in the work-
place and assignment of oversight and prevention responsi-
bilities.
— A workplace violence hazard assessment and security
analysis, including a list of the risk factors identified in the
assessment and how the employer will address the specific
hazards identified.
— Development of workplace violence controls, including
Appendix D—Potential Abatement Methods 273
implementation of engineering and administrative controls

and methods used to prevent potential workplace violence
incidents.
— A recordkeeping system designed to report any violent inci-
dents. Additionally, the employer shall address each specific
hazard identified in the workplace evaluation, the reports
must be in writing and maintained for review after each inci-
dent and at least annually to analyze incident trends.
— Development of a workplace violence training program that
includes a written outline or lesson plan.
— Annual review of the workplace violence prevention pro-
gram, which should be updated as necessary. Such review
and updates shall set forth any mitigating steps taken in
response to any workplace violence incidents.
— Development of procedures and responsibilities to be taken
in the event of a violent incident in the workplace.
— Development of a response team responsible for immedi-
ate care of victims, reestablishment of work areas and pro-
cesses and providing debriefing sessions with victims and
coworkers. Employee assistance programs, human resource
professionals and local mental health and emergency service
personnel should be contacted for input in developing these
strategies.
RETAIL INDUSTRY (SEE OSHA PUBLICATION 3153)
Minimizing Risk through Engineering Controls and

Workplace Adaptations
• Limit window signs to low or high locations.
• Keep shelving low so that workers can see incoming customers;
and that police can observe from the outside of the store.
• Place curved mirrors at hallway intersections or concealed areas.
• Maintain adequate lighting inside and outside the establish-

ment.
• Install video surveillance equipment and closed-circuit TV to

increase the likelihood of identification of perpetrators.
• Used door detectors so that workers are alerted when someone

enters the store.
• Have height markers on exit doors to help witnesses provide
more accurate descriptions of assailants.
• Install and regularly maintain alarm systems and other security
devices, panic buttons, handheld alarms or noise devices, cell
phones and private channel radios where risk is apparent or may
be anticipated.
• Arrange for a reliable response system when an alarm is trig-
gered.
• Install fences and other structures to direct the flow of customer
traffic into and around the store.
• Control access to the store with door entry—buzzer—systems.
• Install physical barriers between customers and workers, such as
bullet-resistance enclosures with pass-through windows.
• Use drop safes to limit the availability of cash to cashiers and
post signs stating that cashiers have limited access to cash.
• Use a panic button and responsive staff or other system that can
be used to call for backup assistance, when needed in an emer-
gency.
• Use an x-ray or other security screening to detect and prevent
weapons from being brought into the facility.
Minimizing Risk through Administrative and

Work Practice Controls
• Integrate violence prevention activities into daily procedures,
such as checking lighting, locks and security cameras to help
maintain a secure worksite.
• Require workers to use the drop safes and keep a minimal
amount of cash in each register.
• Develop and implement procedures for the correct use of physi-

cal barriers, such as enclosures and pass-through windows.
• Establish a policy of when doors should be locked. Require
workers to keep doors locked before and after official business
hours.
• Require workers to lock unlocked doors when not in use.
• Require that deliveries be made during normal daytime opera-
tions.
• Develop and implement emergency procedures for workers to
use in case of a robbery or security breach, such as calling the
police or triggering an alarm.
• Train all staff to recognize and defuse verbal abuse that can esca-
late to physically combative behavior.
• Train all staff and practice drills for physically restraining com-
bative patients or clients, including the use of physical restraints
and medications, when appropriate.
HEALTHCARE AND SOCIAL SERVICE FACILITIES

(OSHA PUBLICATION 3148)
Engineering Controls and Workplace Adaptations

to Minimize Risk
• Enclose nurses’ stations and install deep service counters or
bullet-resistant, shatter proof glass in reception, triage and ad-
mitting areas or client service rooms.
• Provide employee “safe rooms” for use during emergencies.
• Establish “time-out” or seclusion areas with high ceilings with-
out grids for patients who “act out” and establish separate rooms
for criminal patients.
• Provide comfortable waiting rooms (client or patient) designed
to minimize stress.
• Ensure that counseling or patient care rooms have two exits.
• Lock doors to staff counseling rooms and treatment rooms to

limit access.
• Arrange furniture to prevent entrapment of staff.
• Use minimal furniture in interview rooms or crisis treatment
areas and ensure that it is lightweight, without sharp corners or
edges and affixed to the floor, if possible limit the number of pic-
tures, vases, ashtrays or other items that can be used as weapons.
• Provide lockable and secure bathrooms for staff members sepa-
rate from patient/client and visitor facilities.
• Install partitions in transport vehicles to protect drivers from ag-
gressive patients or clients.
Administrative and Work Practice Controls to Minimize Risk

• State clearly to patients, clients and employees that violence is
not permitted or tolerated.
• Ensure that adequate and properly trained staff is available to
restrain patients or clients, if necessary.
• Provide sensitive and timely information to people waiting in
line or in waiting rooms. Adopt measures to decrease waiting
time.
• Ensure that adequate and qualified staff is available at all times.
The times of greatest risk occur during patient transfers, emer-
gency responses, mealtimes and during the night. Areas with
the greatest risk include admission units and crisis or acute care
units.
• Institute a sign-in procedure with passes for visitors, especially
in a newborn nursery or pediatric department. Enforce visitor
hours and procedures.
• Establish a list of “restricted visitors” for patients with a history
of violence or gang activity. Make copies available at security
checkpoints, nurses’ stations and visitor sign-in areas.
• Review and revise visitor check systems, when necessary. Limit
information given to outsiders about hospitalized victims of vio-

lence.
• Supervise the movement of psychiatric clients and patients

throughout the facility.
• Control access to facilities other than waiting rooms, particularly

drug storage or pharmacy areas.
• Prohibit employees from working alone in emergency areas

or walk-in clinics, particularly at night or when assistance is
unavailable. Do not allow employees to enter seclusion rooms
alone.
• Establish policies and procedures for secured areas and emer-

gency evacuations.
• Determine the behavioral history of new and transferred pa-

tients to learn about any past violent or assaultive behaviors.
• Establish a system—such as chart tags, log books or verbal

census reports—to identify patients and clients with assaultive
behavior problems. Keep in mind patient confidentiality and
worker safety issues. Update as needed. Review any workplace
violence incidents from the previous shift during change-in-shift
meetings.
• Treat and interview aggressive or agitated clients in relatively

open areas that still maintain privacy and confidentiality (such
as rooms with removable partitions).
• Use case management conferences with coworkers and supervi-

sors to discuss ways to effectively treat potentially violent pa-
tients.
• Prepare contingency plans to treat clients who are “acting out”

or making verbal or physical attacks or threats. Consider using
certified employee assistance professionals or in-house social
service or occupational health service staff to help diffuse patient
or client anger.
• Transfer assaultive clients to acute care units, criminal units or

other more restrictive settings.
• Ensure that nurses, physicians and other clinicians are not alone
when performing intimate physical examinations of patients.
• Discourage employees from wearing necklaces or chains to help
prevent possible strangulation in confrontational situations.
Urge community workers to carry only required identification
and money.
• Survey the facility periodically to remove tools or possessions
left by visitors or maintenance staff that could be used inappro-
priately by patients.
• Provide staff with identification badges, preferably without last
names, to readily verify employment.
• Discourage employees from carrying keys, pens or other items
that could be used as weapons.
• Provide staff members with security escorts to parking areas in
evening or late hours. Ensure that parking areas are highly vis-
ible, well lit and safely accessible to the building.
• Use the “buddy system,” especially when personal safety may
be threatened. Encourage home healthcare providers, social ser-
vice workers and others to avoid threatening situations.
• Advise staff to exercise extra care in elevators, stairwells and
unfamiliar residences; leave the premises immediately if there is
a hazardous situation; or request police escort, if needed.
• Develop policies and procedures covering home healthcare pro-
viders, such as contracts on how visits will be conducted, the
presence of others in the home during the visits and the refusal
to provide services in a clearly hazardous situation.
• Establish a daily work plan for field staff to keep a designated
contact person informed about their whereabouts throughout
the workday. Have the contact person follow up if an employee
does not report in as expected.
TAXI DRIVERS
(See OSHA fact sheet, Preventing Violence against

Taxi and For-Hire Drivers)
• Use automatic vehicle location or global positioning systems
(GPS) to locate drivers in distress.
• Use caller ID to help trace the location of fares.
• Provide first-aid kits for use in emergencies.
• Install in-car surveillance cameras to aid in apprehending perpe-
trators.
• Install partitions or shields to protect drivers from would-be per-
petrators. These must be used properly to work effectively.
• Coordinate with police—taxi owners and police need to track
high-crime locations and perpetrator profiles.
• Use radios to communicate in case of emergency (e.g., “open
mike switch”).
• Provide safety training to teach protective measures to drivers,
dispatchers and company owners.
• Use silent alarms to alert others in the event of danger (e.g.,
“bandit lights”).
• Install cashless fare systems (i.e., debit/credit cards) to discour-
age robbers.
Source: OSHA
Appendix E
Questions and Answers for

Small Employers on Employer
Liabilit y for Harassment by
Super visors
Title VII of the Civil Rights Act (Title VII) prohibits harassment
of an employee based on race, color, sex, religion, or national origin.
The Age Discrimination in Employment Act (ADEA) prohibits ha-
rassment of employees who are 40 or older on the basis of age, the
Americans with Disabilities Act (ADA) prohibits harassment based
on disability, and the Genetic Information Nondiscrimination Act of
2008 (GINA) prohibits harassment of an employee based on genetic
information. All of the anti-discrimination statutes enforced by the
EEOC prohibit retaliation for complaining of discrimination or par-
ticipating in complaint proceedings.
The Supreme Court issued two major decisions in June of 1998
that explained when employers will be held legally responsible for
unlawful harassment by supervisors. The EEOC’s Guidance on Em-
ployer Liability for Harassment by Supervisors examines those deci-
sions and provides practical guidance regarding the duty of employ-
ers to prevent and correct harassment and the duty of employees to
avoid harassment by using their employers’ complaint procedures.
1. When does harassment violate federal law?

• Harassment violates federal law if it involves discriminatory
treatment based on race, color, sex (with or without sexual con-
duct), religion, national origin, age, disability, genetic informa-
tion, or because the employee opposed job discrimination or
participated in an investigation or complaint proceeding under
281
the EEO statutes. Federal law does not prohibit simple teasing,
offhand comments, or isolated incidents that are not extremely
serious. The conduct must be sufficiently frequent or severe to
create a hostile work environment or result in a “tangible em-
ployment action,” such as hiring, firing, promotion, or demo-
tion.
2. Does the guidance apply only to sexual harassment?

• No, it applies to all types of unlawful harassment.
3. When is an employer legally responsible for harassment by a

supervisor?
• An employer is always responsible for harassment by a super-
visor that culminated in a tangible employment action. If the
harassment did not lead to a tangible employment action, the
employer is liable unless it proves that: 1) it exercised reason-
able care to prevent and promptly correct any harassment; and
2) the employee unreasonably failed to complain to manage-
ment or to avoid harm otherwise.
4. Who qualifies as a “supervisor” for purposes of employer li-

ability?
• An individual qualifies as an employee’s “supervisor” if the
individual has the authority to recommend tangible employ-
ment decisions affecting the employee or if the individual has
the authority to direct the employee’s daily work activities.
5. What is a “tangible employment action”?

• A “tangible employment action” means a significant change in
employment status. Examples include hiring, firing, promo-
tion, demotion, undesirable reassignment, a decision causing
a significant change in benefits, compensation decisions, and
work assignment.
6. How might harassment culminate in a tangible employment

action?
Appendix E—Q & A for Small Employers 283
• This might occur if a supervisor fires or demotes a subordinate

because she rejects his sexual demands, or promotes her be-
cause she submits to his sexual demands.
7. What should employers do to prevent and correct harass-

ment?
• Employers should establish, distribute to all employees, and
enforce a policy prohibiting harassment and setting out a pro-
cedure for making complaints. In most cases, the policy and
procedure should be in writing.
• Small businesses may be able to discharge their responsibility
to prevent and correct harassment through less formal means.
For example, if a business is sufficiently small that the owner
maintains regular contact with all employees, the owner can tell
the employees at staff meetings that harassment is prohibited,
that employees should report such conduct promptly, and that
a complaint can be brought “straight to the top.” If the business
conducts a prompt, thorough, and impartial investigation of
any complaint that arises and undertakes swift and appropriate
corrective action, it will have fulfilled its responsibility to “ef-
fectively prevent and correct harassment.”
8. What should an anti-harassment policy say?

• An employer’s anti-harassment policy should make clear that
the employer will not tolerate harassment based on race, sex,
religion, national origin, age, disability, or genetic information,
or harassment based on opposition to discrimination or partici-
pation in complaint proceedings. The policy should also state
that the employer will not tolerate retaliation against anyone
who complains of harassment or who participates in an inves-
tigation.
9. What are important elements of a complaint procedure?

• The employer should encourage employees to report harass-
ment to management before it becomes severe or pervasive.
• The employer should designate more than one individual to

take complaints, and should ensure that these individuals are
in accessible locations. The employer also should instruct all of
its supervisors to report complaints of harassment to appropri-
ate officials.
• The employer should assure employees that it will protect the
confidentiality of harassment complaints to the extent possible.
10. Is a complaint procedure adequate if employees are instruct-

ed to report harassment to their immediate supervisors?
• No, because the supervisor may be the one committing harass-
ment or may not be impartial. It is advisable for an employer
to designate at least one official outside an employee’s chain of
command to take complaints, to assure that the complaint will
be handled impartially.
11. How should an employer investigate a harassment com-

plaint?
• An employer should conduct a prompt, thorough, and impar-
tial investigation. The alleged harasser should not have any
direct or indirect control over the investigation.
• The investigator should interview the employee who com-
plained of harassment, the alleged harasser, and others who
could reasonably be expected to have relevant information. The
Guidance provides examples of specific questions that may be
appropriate to ask.
• Before completing the investigation, the employer should take

steps to make sure that harassment does not continue. If the
parties have to be separated, then the separation should not
burden the employee who has complained of harassment.
An involuntary transfer of the complainant could constitute
unlawful retaliation. Other examples of interim measures are
making scheduling changes to avoid contact between the par-
ties or placing the alleged harasser on non-disciplinary leave
with pay pending the conclusion of the investigation.
Appendix E—Q & A for Small Employers 285
12. How should an employer correct harassment?

• If an employer determines that harassment occurred, it should
take immediate measures to stop the harassment and ensure
that it does not recur. Disciplinary measures should be pro-
portional to the seriousness of the offense. The employer also
should correct the effects of the harassment by, for example,
restoring leave taken because of the harassment and expunging
negative evaluations in the employee’s personnel file that arose
from the harassment.
13. Are there other measures that employers should take to pre-
vent and correct harassment?
• An employer should correct harassment that is clearly unwel-
come regardless of whether a complaint is filed. For example,
if there is graffiti in the workplace containing racial or sexual
epithets, management should not wait for a complaint before
erasing it.
• An employer should ensure that its supervisors and managers
understand their responsibilities under the organization’s anti-
harassment policy and complaint procedures.
• An employer should screen applicants for supervisory jobs to
see if they have a history of engaging in harassment. If so, and
the employer hires such a candidate, it must take steps to moni-
tor actions taken by that individual in order to prevent harass-
ment.
• An employer should keep records of harassment complaints
and check those records when a complaint of harassment is
made to reveal any patterns of harassment by the same indi-
viduals.
14. Does an employee who is harassed by his or her supervisor

have any responsibilities?
• Yes. The employee must take reasonable steps to avoid harm
from the harassment. Usually, the employee will exercise this
responsibility by using the employer’s complaint procedure.
15. Is an employer legally responsible for its supervisor’s harass-

ment if the employee failed to use the employer’s complaint
procedure?
• No, unless the harassment resulted in a tangible employment
action or unless it was reasonable for the employee not to
complain to management. An employee’s failure to complain
would be reasonable, for example, if he or she had a legitimate
fear of retaliation. The employer must prove that the employee
acted unreasonably.
16. If an employee complains to management about harassment,

should he or she wait for management to complete the inves-
tigation before filing a charge with EEOC?
• It may make sense to wait to see if management corrects the ha-
rassment before filing a charge. However, if management does
not act promptly to investigate the complaint and undertake
corrective action, then it may be appropriate to file a charge.
The deadline for filing an EEOC charge is either 180 or 300 days
after the last date of alleged harassment, depending on the state
in which the allegation arises. This deadline is not extended be-
cause of an employer’s internal investigation of the complaint.
Source: EEOC
Appendix F
Laws Enforced by EEOC

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (TITLE VII) 
This law makes it illegal to discriminate against someone on

the basis of race, color, religion, national origin, or sex. The law also
makes it illegal to retaliate against a person because the person com-
plained about discrimination, filed a charge of discrimination, or
participated in an employment discrimination investigation or law-
suit. The law also requires that employers reasonably accommodate
applicants’ and employees’ sincerely held religious practices, unless
doing so would impose an undue hardship on the operation of the
employer’s business.
• The Pregnancy Discrimination Act —This law amended Title

VII to make it illegal to discriminate against a woman because
of pregnancy, childbirth, or a medical condition related to preg-
nancy or childbirth. The law also makes it illegal to retaliate
against a person because the person complained about dis-
crimination, filed a charge of discrimination, or participated in
an employment discrimination investigation or lawsuit.
THE EQUAL PAY ACT OF 1963 (EPA) 
This law makes it illegal to pay different wages to men and

women if they perform equal work in the same workplace. The law
also makes it illegal to retaliate against a person because the person
lawsuit.
287
THE AGE DISCRIMINATION IN

EMPLOYMENT ACT OF 1967 (ADEA) 
This law protects people who are 40 or older from discrimina-

tion because of age. The law also makes it illegal to retaliate against a
person because the person complained about discrimination, filed a
charge of discrimination, or participated in an employment discrimi-
nation investigation or lawsuit.
TITLE I OF THE AMERICANS WITH DISABILITIES

ACT OF 1990 (ADA) 
This law makes it illegal to discriminate against a qualified per-

son with a disability in the private sector and in state and local gov-
ernments. The law also makes it illegal to retaliate against a person
because the person complained about discrimination, filed a charge
of discrimination, or participated in an employment discrimination
investigation or lawsuit. The law also requires that employers rea-
sonably accommodate the known physical or mental limitations of
an otherwise qualified individual with a disability who is an appli-
cant or employee, unless doing so would impose an undue hardship
on the operation of the employer’s business.
SECTIONS 102 AND 103 OF THE CIVIL RIGHTS ACT OF 1991 
Among other things, this law amends Title VII and the ADA to
permit jury trials and compensatory and punitive damage awards in
intentional discrimination cases.
SECTIONS 501 AND 505 OF THE REHABILITATION ACT OF 1973 
This law makes it illegal to discriminate against a qualified per-

son with a disability in the federal government. The law also makes
Appendix F—Laws Enforced by EEOC 289
it illegal to retaliate against a person because the person complained

about discrimination, filed a charge of discrimination, or partici-
pated in an employment discrimination investigation or lawsuit.
The law also requires that employers reasonably accommodate the
known physical or mental limitations of an otherwise qualified in-
dividual with a disability who is an applicant or employee, unless
doing so would impose an undue hardship on the operation of the
employer’s business.
THE GENETIC INFORMATION NONDISCRIMINATION

ACT OF 2008 (GINA)—(Effective November 21, 2009)
This law makes it illegal to discriminate against employees

or applicants because of genetic information. Genetic information
includes information about an individual’s genetic tests and the
genetic tests of an individual’s family members, as well as informa-
tion about any disease, disorder or condition of an individual’s fam-
ily members (i.e. an individual’s family medical history). The law
also makes it illegal to retaliate against a person because the person
lawsuit.
Index
A constructive discharge 112, 167
abatement 30, 31 CSHOs 23
methods 32, 39
accommodation 45, 111 D
ADA 168, 170 Department of Justice 12
ADA Amendments Act 170 disability 160, 169
ADA Amendments Act of 2008 disability discrimination 161
169 disaster prevention plan 81
administrative 72 discrimination 132, 133, 136, 141,
action 45 144, 148, 151, 156, 160, 166
controls 66 domestic violence 18, 41, 113, 114,
age discrimination 160 115, 116, 117, 118, 119, 120,
Age Discrimination in Employ- 123, 127
ment Act (ADEA) 127, 141 domestic violence prevention plan
Americans with Disabilities Act 122
(ADA) 50, 127, 161, 162, 165 dress code 111
assaults 127 due diligence 91, 93, 95, 97
B E
background check 77, 97, 109 EAP 46, 47
behavioral strategies 69 EEO 133, 135
BFOQ 105, 108 training 132
buddy system 65 EEOC 98, 104, 105, 112, 124, 127,
bullying 41, 156, 161 128, 130, 132, 134, 139, 141,
Bureau of Labor Statistics (BLS) 1, 143, 144, 145, 146, 147, 148,
11, 25 150, 152, 153, 154, 155, 156,
157, 159, 160, 161, 162, 163,
C 169, 170
CDC 115 cases 129
Census of Fatal Occupational Inju- emergency response team 82
ries (CFOI) 1 Employee Assistance Program
Civil Rights Act 127 (EAP) 45
Civil Rights Act of 1964 139 employee benefits 100, 101
Civil Rights Act of 1991 150 employee retention 91
compliance officer 27 employer negligence 93, 96, 97
291
Employment Authorization Docu- incident response teams 46

ments 106 intellectual disability 167, 168
employment discrimination 98 intimidation 156, 161
engineering controls 63, 64, 65
English Common Law 93 J
evacuation 44 Justice Department 114
evaluation 71
Executive Order 110 L
law enforcement 7, 48
F
Legal Momentum 122
Fair Credit Reporting Act (FCRA)
109 M
Family Medical Leave Act, mental health occupations 10
(FMLA) 118
fatal work injuries 1 N
FBI 14, 15, 16, 41, 76, 77, 85, 86, National Center for the Analysis of
113, 120, 121, 159 Violent Crime (NCAVC) 85
FBI’s National Center for the national origin discrimination 138
Analysis of Violent Crime national origin harassment 139
(NCAVC) 85, 125 negligence 94
negligent hiring 92, 96
G
negligent retention 91, 96, 97, 140
General Duty Clause 21, 22, 38
negligent supervision 96, 97
genetic information 160
NIOSH 25, 37
Genetic Information Nondiscrimi-
nation Act of 2008 (GINA) O
127 OSHA 14, 18, 21, 22, 23, 26, 27, 28,
H 29, 30, 31, 32, 33, 35, 37, 53,
harassment 41, 49, 102, 103, 114, 56, 70, 72, 83
123, 127, 128, 129, 133, 134,
P
135, 136, 137, 140, 141, 143,
physical harassment 130, 163
145, 147, 151, 153, 154, 156,
policy statement 75
159, 161, 163, 165, 167, 168
post incident response plan 67
sexual 143, 144, 145, 146, 147,
preventative plan 37
148, 149, 152, 153, 154, 155, 156
prevention programs 25, 43
homicide 3, 14, 41
I R
Immigration Reform and Control racial discrimination 134, 135
Act of 1986 (IRCA) 106 racial harassment 131, 132, 134,
Index 293
138, 148, 149, 156 Title VII of the Civil Rights Act of
reasonable accommodation 101, 1964 127, 134, 139, 141, 143,
102, 110, 160, 164, 167, 170 146, 150, 151, 152, 153, 154,
record keeping 70 155, 156
respondeat superior 93 torts 91, 93
restraining order 121, 122, 123 training 40, 45, 55, 69, 70, 71, 80,
retaliation 128, 132, 133, 136, 139, 121, 134, 135, 138, 140, 145,
141, 145, 146, 148, 150, 152, 146, 155, 160
153, 155, 156, 157, 166 plan 37
retaliatory terminations 130 program 68, 71
risk factors 23, 30, 31, 32, 62, 77
U
S undue hardship 111
safety plan 117 U.S. Department of Justice 7, 18
screening surveys 61 U.S. Equal Employment Oppor-
security 45, 46, 47 tunity Commission (EEOC)
measures 79 98, 104, 105, 112, 124, 127,
plan 37 128, 130, 132, 134, 139, 141,
sexual harassment 143, 144, 145, 143, 144, 145, 146, 147, 148,
146, 147, 148, 149, 152, 153, 150, 152, 153, 154, 155, 156,
154, 155, 156 157, 159, 160, 161, 162, 163,
shared responsibilities 42 169, 170
stakeholders 42
stalking 41, 49, 114, 120, 127 V
statement 76 verbal harassment 133, 163
violence prevention 46, 49
T guidelines 27
taunting 161 initiatives 42
termination 170 plan 124
Texas Workers’ Compensation Act program 53, 55, 66
96 violence protection policy 145
threat assessment 49, 83, 85
threat assessment personnel 48 W
Threat Management Team 117, workers’ compensation 95, 96
120, 124 workplace domestic violence pre-
threats 41, 44, 46, 47, 49, 86, 87, 88, vention program 117
114, 115, 120, 121, 127 workplace homicide 12, 13, 16, 114
Title I of the Americans with Dis- workplace prevention policy 45
abilities Act (ADA) 166 workplace safety 116
workplace security analysis 62 prevention evaluation 72

workplace violence 7, 10, 14, 15, prevention plan 83
17, 18, 21, 22, 23, 25, 26, 27, prevention program 54, 79
28, 33, 37, 41, 45, 47, 61, 72, prevention training 81
77, 78, 93, 117, 124, 127 risk factors 29
policy 43, 116, 118 worksite analysis 55, 63
prevention 62, 75, 116 wrongful termination 50

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Workplace Violence and The Facility Manager

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Workplace Violence and

The Facility Manager

Gustin, Joseph F., 1947-

Published by The Fairmont Press, Inc.

Distributed by Taylor & Francis Ltd.

Distributed by Taylor & Francis Ltd.

Printed in the United States of America

0-88173-532-9 (The Fairmont Press, Inc.)

While every effort is made to provide dependable information, the publisher,

Chapter 2—Workplace Violence—A Safety Issue......................................21

Chapter 3—Workplace Violence—What’s at Stake....................................41

Chapter 4—Developing the Program..........................................................53

Chapter 5—Developing the Plan..................................................................75

Chapter 6—The Legal Ramifications...........................................................91

Chapter 7—Domestic Violence................................................................... 113

Chapter 8—Racial Harassment...................................................................127

Chapter 10—Disability Harassment..........................................................159

Appendix A—2011 Workplace Data (Preliminary).................................173

Appendix B—2010 Workplace Data..........................................................221

Appendix C—Occupational Homicides by

Appendix D—Potential Abatement Methods..........................................271

Appendix E—Questions and Answers for Small Employers on

Appendix F—Laws Enforced by EEOC....................................................287

• In the summer of 2012, a husband in Memphis shot his wife to death

• A judge, a court reporter, and a deputy were killed in a Georgia

• In what is believed to be the nation’s deadliest workplace shooting

Violence In The Workplace

CRIME IN THE WORKPLACE: AN OVERVIEW

According to preliminary statistical data issued by the Bu-

Fatal Injuries by Event

Figure 1-1. Number of fatal work injuries, 1992-2011

Appendix B provides data for previous years.

Table 1-1. Fatal occupational injuries by event or exposure, 2011

Figure 1-2. Distribution of fatal injury events, by gender of worker, 2011

In 2009, an estimated 4 violent crimes per 1,000 employed persons

From 2005-2009, of the occupational groups examined, law

Table 1-2. “Workplace and non-workplace violence, by occupation, 2005-2009

older), followed by mental health occupations (21 per 1000). Among

During the 2005-2009 period, males had a higher rate of work-

According to the Bureau of Labor Statistics’ Census of Fatal

Figure 1-4. Workplace homicides, 1993-2009, number of employed victims age

homicide victims worked in various service occupations, including

Table 1-3. Workplace homicide victims, by sex, age, race/Hispanic origin,

Table 1-4. Workplace homicides, by offender type 2005-2009.

Table 1-5. Workplace homicides, by incident type, 2005-2009

2009. About 14% of workplace homicides resulted from hitting, kick-

DEFINING WORKPLACE VIOLENCE

A specific category of violent crime, workplace violence is more

The ILO defines workplace violence as “Any action, incident, or

CATEGORIES OF WORKPLACE VIOLENCE

The FBI classifies workplace violence into four broad catego-

personnel and teachers. For other occupations, violent reactions by

rity costs, medical costs and worker’s compensation costs.

• What are employers required to do in order to provide this

• What can employers do to prevent violence from occurring on

• What should employers do to assist employees—victims as

Answers to these questions are important to employers, build-

With an effective date of September 8, 2011, this directive (Di-

• Conduct inspections in response to a complaint of workplace

• Conduct programmed inspections at worksites that are in in-

Note that this directive is not intended to exclude other pro-

As noted in Chapter One, The Bureau of Labor Statistics’ (BLS)

tion Program, combined with engineering controls, administrative