Recent Case Illustrates How Abusive Workplace Behavior Can Lead To Liability

When faced with an abusive, intimidating boss or co-worker, many people’s thoughts take them back to the school ground when they first encountered a bully. Not surprisingly, the feelings do not improve with age. This mistreatment is often not motivated by the employee’s race, ethnicity, sex, age or disability, thus leaving the employee without an obvious legal remedy. In today’s world, where every wrong is in need of a legal solution, bullying is a fast rising problem to be solved.

Legal Consequences

As awareness of “workplace bullying” rises, so does potential litigation and liability for employers. Although there is no specific federal or state anti-bullying legislation in the United States, that does not mean that employers may not be held liable for bullying type behavior. Workplace bullying has already found its way to the courts through other causes of action such as intentional infliction of emotional distress or through piggy-backing onto protected class discrimination.

Given the emotional impact that the term carries, it is not unexpected that plaintiffs are trying to make “bullying” cases without regard to the legal theory used. The most dramatic example is a recent case decided by the Indiana Supreme Court discussed in detail below.

A Case Scenario

Joseph Doescher was a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgery). He alleged that Dr. Daniel Raess, a cardiovascular surgeon, aggressively charged at him “with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing.” Doescher testified that he backed up against the wall and put his hands up, fearing that Raess was going to hit him.

Although Doescher’s legal claims were intentional infliction of emotional distress and assault, the trial strategy was to present Raess as a classic “workplace bully.” The jury found for Raess on the intentional infliction of emotional distress claim, but for Doescher on the assault claim and awarded him $325,000.

The Indiana Court of Appeals reversed and remanded the case because the trial judge allowed the testimony of a “bullying expert,” Dr. Gary Namie, and failed to give a jury instruction requested by Raess that “workplace bullying” was not an issue in this case and that there was no basis in the law for such a claim.

In reinstating the verdict in favor of Doescher, the Indiana Supreme Court first refused to decide whether it was error to admit the testimony of Dr. Gary Namie as a workplace bullying expert. According to the majority, the question of Dr. Namie’s qualifications had not been preserved at trial for the appeal.

Next, the court turned to whether it was proper to exclude Raess’ “workplace bullying instruction.” In holding that the instruction was inconsistent with the law, the court said: “The tendered instruction advanced two concepts: (a) that `workplace bullying’ was not an issue in the case, and (b) that the jury need not determine whether the defendant was a `workplace bully’ to decide the case. As to the first concept, we disagree. In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue. The phrase `workplace bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could `be considered a form of intentional infliction of emotional distress’.”

The court also noted that, although the trial judge refused Raess’ proposed instruction, he allowed him to argue to the jury that workplace bullying was not an issue in the case. Raess v. Doescher, No. 49S02-0710-CV-424, Indiana Supreme Court (April 8, 2008).

Because the court side-stepped whether Dr. Namie’s testimony concerning workplace bullying was properly admissible, the application of Raess may be limited. On this point, Ogletree Deakins shareholder Brian McDermott states, “Hopefully any other court considering this case as supportive of bringing `bullying’ claims or offering `bullying’ evidence, will see how limited it is. Let’s just hope that in trying to right one wrong, the Indiana Supreme Court has not opened the lid to a true Pandora’s Box.”

Tips For Employers

The concept of “workplace bullying” continues to be a topic of discussion for employers and the subject of academic debate. Many companies, even prior to Raess, have included “workplace bullying” among the behaviors prohibited by company policies and procedures. This should not be surprising given that “workplace bullying” legislation has been introduced in at least 13 states in the past five years.

Clearly, permitting bullying type of behavior, without regard to whether it is technically illegal, is not a good human resources practice. It should be the goal of every employer to make their own workplace bully-free.

Three steps that employers can take include:

  • Make sure your policies prohibit all harassing conduct;
  • Respond to all complaints of improper behavior, even if it is not technically illegal, in the same way as you respond to a complaint of harassment based on a protected category; and
  • Make sure that your actions are aligned with your words.

Note: This article was published in the May/June 2008 issue of The Employment Law Authority.

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