Dive Brief:

• FedEx Freight fired two drivers because they violated the company's prohibition on workplace violence, not because of employment discrimination or retaliation (Stanley Shinn, Paul Ellis v. FedEx Freight, Inc., No. 18-3173 (3rd Cir. August 22, 2019)).
• Stanley Shinn and Paul Ellis were fired after investigations for separate incidents of workplace violence. Shinn was fired shortly after being accosted by another driver in a breakroom who used homophobic slurs against him and Ellis; Shinn twice suggested to the man that they go outside and talk, which company investigators concluded was a threat. The employee making the slurs was suspended for three days with pay. Ellis was fired after a FedEx manager was given a printout of Facebook comments made by Shinn and Ellis. Ellis admitted to his supervisors that his Facebook messages about another worker suffering a future "accident" could be perceived as threatening, and it was concluded that the statements were threats of violence. Before his termination, Ellis frequently took leave under the Family and Medical Leave Act (FMLA) to get treatments for chronic back pain and to take care of his mother.
• The 3rd U.S. Circuit Court of Appeals said the men had not shown that FedEx's stated reason for firing them — violations of the employee code of conduct — was a pretext. The lesser punishment (a suspension) for the employee making the slurs could reflect FedEx's judgment that threats of violence required a more decisive intervention, said the court. Both men also argued that the proximity in time between the investigations and their firing established pretext. But, the court said, Shinn had presented no evidence of animus and Ellis' termination, coming two months later, was too long to suggest a causal relationship on its own. The appeals court also ruled that Ellis failed to provide sufficient evidence to show that he was given undesirable routes because of his use of FMLA leave.

Dive Insight:

Workplace violence is starting to show up as one of the top HR challenges. A survey by XpertHR revealed HR professionals named it as one of their top four concerns for 2019. Nearly half of all HR professionals earlier this year said their organization has experienced a workplace violence incident at some point — up from 36% in 2012, according to findings from the Society for Human Resource Management.

Employers should create a policy that defines workplace violence, spells out the consequences of such behavior and outlines immediate responses, experts say. The policy should "clearly state … that violence is not permitted and will not be tolerated," according to guidance published by the Occupational Safety and Health Administration. Another important step is building a workplace culture that promotes safety and support.

Prevention should also be a priority. Employers should train workers and managers to spot behavior that could indicate violence. The U.S. Department of Labor has said that it is HR's responsibility to offer training courses on workplace violence.