Workplace Violence: College Policy Barring Statements With Violent Overtones Violated Professor’s Free-Speech Rights

Highly publicized incidents of on-the-job violence have prompted many employers to adopt a workplace violence policy. But a recent federal appeals court ruling in California demonstrates the problems that can arise—particularly for public employers—if your policy goes too far.

Professor Publishes In Underground Newspaper

Roy Bauer, a professor at Irvine Valley College in Orange County, criticized college officials in the underground campus newspaper Dissent during a tumultuous period when the school was undergoing accreditation evaluations. For example, Bauer suggested that a two-ton block of granite should fall on the acting president’s head, commented that no decent person at a college board meeting could resist “going postal,” satirized the president’s policies using the acronym MAIM, and illustrated an article on downsizing with three shrunken people pointing a rifle.

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Writings Violate Workplace Violence Policy

The community college’s violence policy prohibited “verbal threats, violent behavior or physical conduct, which interferes with employees’ safety in the workplace.” The policy further stated that workplace violence included “making written, physical or visual contact with verbal threats or violent behavior overtones.”

Based on the policy, the college ordered Bauer to stop his inflammatory writings and undergo anger management counseling. Bauer sued instead. He argued that the school’s policy was overly broad and violated his free-expression rights. The college contended that its policy only prohibited threats of violence, which are not constitutionally protected.

Policy Is Too Broad

The federal Ninth Circuit Court of Appeals ruled that the college’s ban on threats that interfere with employees’ safety was legal. But forbidding expression with “violent behavior overtones” went too far because it could restrict comments that weren’t true threats and therefore were constitutionally protected. The court explained that Bauer’s writings had some violent content that was merely hyperbole. In the context of contentious campus politics, Bauer’s statements could not be perceived as real threats.

What’s more, the college’s interest in regulating Bauer’s comments didn’t outweigh his free-speech rights. That’s because his statements—which were clearly opinions, not factual assertions—may have caused some disharmony among his colleagues but didn’t negatively impact his teaching or other responsibilities. Therefore, the court ordered the college not to enforce its workplace violence policies against Bauer. Plus, the court awarded Bauer, who hadn’t asked for money damages, $125,000 in attorneys’ fees.

Useful Approaches

This case directly applies to public employers, which are less able to limit free speech at work than private employers. But it also suggests some useful guidelines that all employers can follow in drafting and enforcing workplace violence policies:

 

1. Draft policies carefully. Your workplace violence policy can prohibit verbal threats, violent behavior or physical conduct that interferes with employee safety. This could include acts or gestures intended to intimidate another person or leave them injured or fearing injury, or acts likely to damage company property.

    

2. Don’t ban protected expression. Public employers may not prohibit expression of opinions that may be insulting to others but not actually threatening. However, racial or sexual insults may be illegal harassment under state and federal laws. Consider addressing such verbal abuse in your harassment policy.

    

3. Evaluate conduct and statements. Before taking action against an employee, public employers should first determine whether the misconduct amounts to protected expression. Carefully evaluate whether the statements or other behavior are truly threatening considering the surrounding events and the listeners’ reaction. Note that public employers can limit constitutionally protected statements and activity only when necessary to maintain an orderly workplace or protect other workers’ rights. Private employees generally don’t have free-speech rights at work, and you can take action if an employee’s expression disrupts the work environment.