Federal Judge in Chicago
Oks Retaliatory Discharge Tort
for Workplace Safety Whistleblower
Employee A Threatens to
Strike Employee B: “Violence”?
Suppose you fire an employee because of performance problems, chief among them a tendency to complain about everything. And among these complaints, the employee claims that a co-worker in the parking lot threatened to punch him out. Arrest this guy, the employee insists. You are convinced that the threat is not credible and refuse to do so. Because the employee won’t let up about this demand, you fire him. He sues for retaliatory discharge, claiming the dismissal was a reprisal for his complaint about “violence in the workplace.”
Do not take such a claim lightly. Judge Holderman earlier this year decided that Illinois common law does recognize the existence of retaliatory discharge tort claims where the public policy was the state’s laws against workplace violence. Daoust v. Abbott Laboratories, 05 C 6018, 25 IER Cases 942 (N.D. Ill. 2007). The court cited the articulation of this policy under the state law protecting employees who are victims of domestic and sexual violence (VESSA) and the Illinois Healthcare Workplace Violence Act.
Although the Illinois courts have generally refused to expand this tort claim beyond the three basic grounds, i.e., workers compensation, blowing the whistle on criminal activity, and refusal to operate a dangerous instrumentality, retaliatory discharge suits have spread in theoretical scope in small but important ways in the past decade or so.
In the case of the chronic complainer, he is to be terminated not because he has complained about violence in the workplace (and your discharge paperwork will make this crystal clear, indeed you welcome the expression of such concerns and take them seriously) but because his incessant complaints are interfering with his - and everyone else’s - production.