Publications: Court: Illinois Law Bars Firings in Retaliation for Workplace Violence Reports

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A Chicago federal judge has determined that a “clearly mandated public policy exists under Illinois law that prohibits retaliatory discharge of employees who report incidents of workplace violence.” Chief Judge James F. Holderman’s January 11, 2007 “Preliminary Determination” in Daoust v. Abbott Laboratories (case 05 C 6018, U.S. Dist. Ct., N.D., Ill.), thus clears the way for Jeffrey Daoust to try his retaliatory discharge claim against former employer Abbott Laboratories. In March, Daoust will try to convince a Chicago federal jury that Abbott fired him for complaints “of being subjected to physically threatening behavior by a subordinate employee.” Abbott maintains, instead, that it discharged him “for his physical response to a ‘heated argument’ with [a] co-worker.”

The Daoust decision acknowledged Illinois courts consistent reluctance to expand the common law tort of retaliatory discharge, yet nevertheless found that, when viewed in the light most favorable to Daoust, the evidence could support a finding that Abbott discharged him in violation of a clearly mandated public policy against discharging employees for reporting physically threatening behavior. The Court noted that through the tort of retaliatory discharge Illinois courts had created a narrow exception to the general at-will employment rule that an Illinois employer may terminate an employee for any reason or no reason. The exception applies only where the termination violates a clearly mandated public policy ascertainable in Illinois’ state constitution, its statutes and, where these are silent, in its judicial decisions.

The Daoust Court then found that all three sources of Illinois law (the constitution, statutes and case decisions) reflected a public policy commitment to the safety and well-being of Illinois citizens that could support a retaliatory discharge claim under Daoust’s version of the contested facts before it. It cited the Illinois Constitution’s preamble for the proposition that state government was formed “in order to provide for the health, safety and welfare of the people,” then discussed several recent Illinois legislative measures as re-affirming the State’s concern over violence, including workplace violence. The Court discussed the Health Care Workplace Violence Protection Act (405 Ill. Comp. Stat. 90/5(2) (which requires that healthcare workplaces develop a plan to promote the reporting and documentation of workplace violence incidents), the Victims’ Economic Security and Safety Act (820 Ill. Comp. Stat. 180/5(11) (which bars Illinois employers of 50 or more from retaliating against employees who are domestic violence victims or who have a family or household member who is a domestic violence victim), and the Illinois legislature’s mandate for the creation of a model policy regarding violence and sexual assault awareness in the workplace (20 Ill. Comp. Stat. 605/60-550). Finally, the Court cited several Illinois case precedents for the proposition that public policies affecting the health and safety of citizens will support a retaliatory discharge claim.

The Daoust Court concluded that Illinois has a fundamental policy of safeguarding its citizens from all forms of violence, including workplace violence and that “[w]here the General Assembly has found a heightened prevalence of workplace violence or underreporting of such violence it has enacted specific legislation to protect its citizens, evidencing a public policy that discourages workplace violence and encourages reporting of violent incidents.” As a consequence, it found that Daoust could establish actionable retaliation by convincing a jury that Abbott discharged him for reporting an incident of workplace violence.

According to OSHA, workplace violence resulting in homicide is the fourth leading cause of fatal occupational injury in the U.S. In an analysis of workplace crime from 1987 through 1992, the U.S. Department of Justice’s Bureau of Justice Statistics found that 1 in 6 violent crimes occurs in the workplace; that an estimated 7 percent of all rapes, 8 percent of all robberies and 16 percent of all assaults occur at work; and that the workplace is the scene of almost 1 million violent crimes every year. Illinois’ recent legislative responses to these disturbing facts and the Daoust Court’s decision reflect that workplace violence reports are considered an integral part of the solution to the problem of workplace violence. Employers are well-advised not only to use such reports to diminish the risk of violence in their workplaces, but also to treat them as protected employee activity. Illinois employers who discharge a reporting employee should document and be prepared to establish the legitimate business justification other than retaliation for their action.