HR Management & Compliance

Workplace Violence: Termination of Employee Who Defended Himself Upheld; Are You Ready for a Claim Like This?

Bad feelings between two co-workers erupt, and one goes on the attack. The other worker could back off but instead defends himself. You fire both employees. But now you have a lawsuit on your hands charging the termination violated the right to self-defense of the employee who defended against the attack. Will the court dismiss the case?

Office Fight

Hector Escalante, a printer for Wilson’s Art Studio Inc. in Orange County, claimed co-worker Ion Stanei screamed and swung a piece of wood at him and then hit him with a hammer or a box of screws. Escalante fled the room, but Stanei pursued him and threw a box of screws from 30 to 40 feet away, hitting Escalante in the back. Escalante stopped, turned around, and saw Stanei holding a large metal cap. He rushed toward Stanei and grabbed him to restrain him. Stanei then hit Escalante in the head with the metal cap, causing a bleeding gash.


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Victim Fired

Wilson’s investigated the incident and fired both Escalante and Stanei. The company based its decision to fire Escalante on his having gone back and engaged Stanei when he could have simply continued to flee the attack.

Escalante sued, claiming his discharge violated his right to self-defense. Wilson’s argued that Esca- lante was an at-will employee, so it was free to terminate him for any reason. A jury sided with Escalante.

Employer Can Require Retreat

Now a California Court of Appeal has reversed the jury verdict. The court explained that although an employer’s right to terminate an at-will employee is largely unfettered, an employer cannot fire an at-will employee for reasons that violate a public policy.The court found, however, there is no public policy that supports an individual’s right to use self-defense if the option to retreat was available. When retreat is possible, the court said, an employer can require an employee to have done so because it would prevent the escalation of workplace violence. Therefore, the court ruled that Wilson’s had the right to terminate Escalante because he could have left—especially because he was already 30 or 40 feet away from Stanei when he turned around and went back.

Sensible Considerations

Despite the ruling for the em-ployer in this case, public policy probably would prohibit firing an employee for using self-defense if the employee were in a situation where withdrawing was not possible—such as if the attacker backed the employee into a corner with no means of escape. To avoid problems, be sure to thoroughly investigate a co-worker altercation before deciding whether to terminate someone who claims to have engaged in self-defense and make sure to evaluate whether the employee’s response was reasonable under the circumstances.