Firm May Be Liable for Assault by Co-Worker

by Don D. Sessions
Employee Rights Attorney
Mission Viejo, California

Originally Published in The Los Angeles Times, October 29, 2001

Q: "I was an employee at a firm for about six months. One day, one of my co workers who has a bad temper spit in my face during a discussion.

"I immediately reported the incident to my supervisor, but he did not do anything to rectify the situation. I eventually quit because the situation became unbearable.

"Do I have any legal recourse from the employer or co worker?"

A: "You certainly could file a civil complaint against the co worker for such an assault. The worker could even face a criminal complaint, although prosecutors probably would not pursue such a case.

"Since this spitting incident is considered ‘unlawful touching,’ you also might have a valid claim that the worker was trying to inflict emotional distress on you.

"Normally, employers are not responsible for the actions of a worker unless they knew or should have known of the worker’s tendency toward violence.

"The employer might be liable in your situation, for example, if it had been alerted to other incidents of inappropriate behavior by the co worker.

"Once it had been informed of this spitting incident, the employer has an obligation to take reasonable steps to make sure it doesn’t happen again.

"Also, you should try to determine the reason for the co worker’s actions. If you believe the incident stemmed from a discriminatory or other illegal reason, rather than a general dislike for you, the employer might be subject to additional liability.

"Even though you quit, you also might have a claim against your employer and the co worker under a concept called ‘constructive wrongful termination’—meaning that your resignation was the same as if your employer had in fact wrongfully fired you."

Don D. Sessions, a Mission Viejo attorney, author and law school professor, helps employees enforce their rights. For questions, call (800) 774-7494 or access job-law.com. © Sessions & Kimball LLP.