Violence in the Workplace: Questioning Employer Responsibilities

Natavia Lowery already had a record of identity theft and embezzlement when she stole $30,000 from her boss Linda Stein and clubbed her to death with a piece of exercise equipment. There were no warning signs of her criminal record or personal history before she was hired by Douglas Elliman, Stein’s real estate company. Lowery was previously accused of stealing $3,000 while working at a Virginia church and had several arrest warrants. She was eventually convicted of second-degree murder.

Stein’s daughters filed a wrongful death lawsuit against the real estate firm and the temp agency that hired Lowery, claiming that they were negligent in not investigating the history of their employees. However, it can be difficult to ascertain the full backgrounds of potential hires. Employers may run the risk of racially biased profiling, and because of costs, many employers don’t search for criminal history to begin with.

Despite the difficulty of determining whether employees’ past behavior raises red flags, the stakes are high when there is a risk of violence in the workplace, and companies may be liable if violence does occur. Balancing the risk is difficult, though, as corporations face consequences for behavior perceived to be biased against certain classes of people, including former criminals. Laws in New York prevent companies from discriminating on the basis of arrest records during the hiring process, unless employers can ascertain that there exists a reasonable risk to others.

Last fall, Party City was ordered to pay a $95,000 fine after the Civil Rights Bureau found it to discriminate against applicants with criminal records, automatically rejecting any applicant with a felony conviction. Its settlement with the Attorney General’s office included a mandated rectification of its human resources practices.

In an effort to expand anti-discrimination policy, over 70 cities and counties, including New York City, have removed the question regarding conviction history from employment applications, so that judgment can be deferred until after a tentative offer of employment has been made based on a candidate’s other qualifications. Under state law, employers must consider other factors in hiring workers besides the mere existence of a criminal record, such as the bearing of the applicant’s conviction on any specific responsibilities of the job sought, the person’s age at the time of offense, and proof of rehabilitation efforts.

The greatest obstacles for the formerly incarcerated are job and housing discrimination, but employment opportunities actually reduce the likelihood of a repeat offense, getting ex-cons back on track. Employers should strive to remain cognizant of discrimination laws during the hiring process, while maintaining awareness of applicants’ reasonable risk to others so that tragedies like Linda Stein’s can be avoided. In the meantime, those who believe they may have a claim against a company—either with regard to criminal discrimination or a wrongful death or injury matter—are candidates for legal consultation.

Mr. Davis commented on the Stein case in 2010.