Which Suit Would you Like? The Employer's Dilemma in Dealing With Domestic Violence

• Author: John E. Matejkovic
• Position: J.D., Assistant Professor of Business Law, The University of Akron College of Business Administration
• Pages: 309-346

Page 309

I Introduction

Unfortunately, all too often violence has become part of the American working environment. It is estimated that between 1.7 and 2 million violent acts occur each year in the workplace.¹ Workplace violence is experienced by 13 of every 1,000 workers.² Approximately 1% of all workplace violence was committed by an intimate partner-a current or former spouse, boyfriend, or girlfriend³ -in what would normally be classified as an incident of domestic violence.⁴

While workplace violence decreased between 1993 and 1999, there were still too many incidents of violence, especially homicides occurring in the workplace, with 651 homicides in 1999 alone.⁵ With regard to instances of domestic violence, while the numbers in and out of the workplace also declined, the numbers are still significant. In 1993, 1.1 million females were victims of non-fatal domestic violence, dropping to 588,490 such victims in 2001.⁶ Additionally, intimates killed 1,247Page 310 females and 440 males in 2000.⁷ Thirty-three percent of all female homicides are due to acts of domestic violence.⁸

Homicides are the second leading cause of death in the workplace generally.⁹ According to the National Institute for Occupational Safety and Health (NIOSH), homicide is the leading cause of death for females in the workplace, accounting for 40% of all female workplace deaths.¹⁰ Twenty-five percent of female victims were assaulted by people known to them, and 16% of women workplace homicides are a result of domestic violence.¹¹ In nearly two-thirds of work place assaults, women were the victims.¹²

Twenty-percent of all violent crimes against women were committed by an intimate partner.¹³ Eighty-five percent of domestic violence victims are female, and, in recent years, 33% of all murder victims were females killed by a domestic partner.¹⁴ It is estimated that one in five females will be a victim of domestic violence at some point during her lifetime.¹⁵ More than 1.5 million females are victims of domestic violence each year.¹⁶ ForPage 312 example, 1% of all workplace violence involves domestic violence.¹⁷ Seventy-four percent of female victims of domestic violence are harassed by their abusers on the job, 56% are late for work on several occasions per month, 28% leave work early at least five times per month, 54% miss a minimum of three days per month, and 75% use company time to handle domestic violence-related matters.¹⁸ It has been reported that domestic violence costs employers approximately $5 billion per year in absenteeism, lost productivity, and increased health care costs.¹⁹ It is estimated that one quarter to one half of female victims lose their jobs due to domestic violence.²⁰

In 2004, the Society for Human Resource Management (SHRM) published the results of a survey conducted of a number of employer members.²¹ That survey reflected that approximately 10% of the responding parties reported incidents of workplace violence.²² Eleven percent of the responding companies reported violence from girlfriend or boyfriend to an employee, 10% from spouse to employee, and 7% from ex-spouse to employee.²³ Further, the survey reports that the family/marital/personal relationship problems are increasingly a motivation for workplace violence, with 39% reported in the 2004 survey, up from 36% in SHRM's 1999 survey, and 27% in SHRM's 1996 survey.²⁴

While workplace violence from any source is obviously a concern for employers, the issues presented when acts of domestic violence spill into the workplace are particularly thorny, as employers face exposure toPage 312 liability claims based upon a variety of sources and theories.²⁵ It is apparent that when domestic violence spills into the workplace, the victims include not only the individuals involved, but also the victim's employer, which must deal with the adverse publicity²⁶ and often claims made by the individual victims, and too often innocent bystanders, including co-workers, who also may suffer injuries in any violent act.²⁷

The focus of this Article is the variety of claims, protections, and interests that an employer must address when domestic violence spills into the workplace. Not only must an employer concern itself with a variety of potential tort-based claims presented by any victim-direct or indirect co-workers and bystanders-but the employer must also consider its actions vis-a-vis a variety of statutory claims and protections afforded by federal and state statutes. As discussed in more detail below, the resulting effect of these myriad concerns is often to pose employers in the unenviable position of having to choose which claims or suits they would like to defend-that is, (1) a tort-based claim for injuries suffered at the workplace as a result of the domestic violence related injury; (2) a possible Workers' Compensation claim when the injury occurs at work; or (3) defense of a claim based upon a state or a federal statute affording some protection to domestic violence victims. Finally, and in an area of increasing concern, are those circumstances where the employer, to avoid having to deal with domestic violence issues in the workplace, terminates the involved employee, as employers are increasingly facing wrongful-discharged suits for terminating such employees.

So Mr. or Ms. Employer, which suit would you like to defend?

II Tort-Based Liability

Media reports often contain several stories about domestic violence incidents in the workplace. Often the stories report multi-million dollarPage 313 lawsuits; often they report multi-million dollar verdicts; often they report substantial settlements. For example, in one case, a former boyfriend called his partner's employer and demanded that she be fired.²⁸ When the employer refused, the boyfriend advised that he would come to her work and kill her, which he did.²⁹ The parties settled the claim of the decedent's family for more than $350,000.³⁰ In another case, a husband appeared at the wife's workplace and opened fire with a shotgun. The husband killed two employees and wounded nine.³¹ Because the employer had been warned of the husband's threats and the employer did not beef up security, the jury awarded the plaintiffs $5 million.³² An employer's liability exposure for a domestic violence incident in the workplace claim may be limited only by what a jury perceives to be "fair" or "just" compensation. Thus, employers should be very concerned about tort-based claims.

Most tort claims that an employer might face in the circumstances discussed herein would probably be based on some form of negligence- the failure to act as a reasonable person under the circumstances that leads to (causes) an injury.³³ In the employment setting, the employer must keep in mind that often the injured parties (the potential plaintiffs) may not only be the target of the domestic violence, but, as indicated above, targets may also be co-workers or other bystanders. From an employer's perspective, it might seem unfair to make them liable for the actions of third parties who commit acts of domestic violence in the workplace; but, it is clear that domestic violence does occur in the workplace, sometimes for no other reason than the perpetrator knows where the victim is going to be at some particular point in time-at work.

For the most part, the law does not recognize a duty to protect persons from the acts of third parties, as there is no liability for the acts of those third parties.³⁴ However, there are exceptions to this general rule. Where "special relations" exist between the parties, a duty to protect may arise.³⁵

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Employment has been noted to create such a "special relation."³⁶ Moreover, when parties voluntarily assume a duty to protect another, they may be liable for their failure to do so.³⁷

Finally, a duty to protect against the acts of a third party may arise where an injury or harm is foreseeable.³⁸ While the existence of duty is normally a question of law to be determined by a judge in the first instance, courts have discretion to determine duty as a matter of policy as to whether an employee is entitled to protection.³⁹ Forseeability is generally a question of fact for a jury's determination, decided as an issue of law only if reasonable minds can come to only one conclusion.⁴⁰ There is also authority imposing a duty to act on an employer where there is a known threatened harm that the employee might encounter within the scope of his or her employment.⁴¹

As noted above, for a plaintiff to prevail in a negligence claim, there must be a causal relationship between the alleged breach of duty and the injury suffered; the law also recognizes that the acts of a third party may constitute an intervening or superseding cause of injury, thereby relieving parties of liability for their negligence.⁴² However, the idea of a superseding or intervening cause is not absolute; in some instances, thePage 315 superseding or intervening cause does not relieve a party of liability for his or her negligence.⁴³ The Restatement (Second) of Torts notes that a party may remain liable for negligence when [t]he act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.⁴⁴

Thus, while an employer might...