By Joseph Hunt
Zero tolerance against workplace violence is a laudable policy. So too is encouraging employees to withdraw to safety when encountering workplace violence. Thus, when two employees get into a fight, a rational response (and one consistent with these policies) may be to fire both employees. There is an ongoing debate in courts across the country, however, whether an employer may fire an employee for defending himself against serious bodily harm because self-defense is a legally protected right.
The West Virginia Supreme Court recently clarified that self-defense supporting a wrongful discharge claim must be in response to “lethal imminent danger,” not just any physical attack. The court does not explain why self-defense, if justified, should not protect an employee against an adverse employment action in all circumstances, no matter how serious the threat of violence may be. In any event, the court implicitly accepts that an employee does not have immunity in all cases merely by claiming, “He started it!”
This decision represents a significant limitation to the claim of wrongful discharge in violation of public policy in the context of self-defense. Employers would still be wise to evaluate instances of workplace violence on a case-by-case basis. There may be instances when an employee has no choice but to defend himself, and where the right to self-defense may be more compelling than an employer’s zero tolerance policy.