Workplace Bullying: A New Spin on an Old Theme
By E. Jewelle Johnson (Labor Letter, November 2008)

In May 2008, the Indiana Supreme Court recognized a new legal
phenomenon, workplace bullying, when it upheld a lower court's ruling
that a surgeon was liable for intentional infliction of emotional
distress and assault for screaming, swearing at and advancing upon a
coworker in the operating room. Raess v. Doescher.

Joseph Doescher worked as a perfusionist (the person who operates a
heart/lung machine during open heart surgery). In his suit he claimed
that Daniel Raess, a cardiovascular surgeon came at him "with
clenched fists, piercing eyes, beet-red face, popping veins, and
screaming and swearing at him." Raess backed Doescher up against a
wall, then turned, stormed past Raess and left the room, momentarily
stopping to declare "you're finished, you're history," according to
the testimony. Raess was supposedly angry with Doescher because of
negative reports Doescher had made to hospital administrators about
how the surgeon treated other employees, particularly other
perfusionists.

The jury found in the surgeon's favor on the charge of intentional
infliction of emotional distress, but liable for assault, which is
putting another person in fear of imminent harm. More importantly,
the Indiana Supreme Court affirmed the jury's award of $325,000 in
favor of Doescher and held that the term, "workplace bullying," like
other general terms used to characterize a person's behavior, is "an
entirely appropriate consideration" in determining the issues of
assault or intentional infliction of emotional distress.

Defining Bad Behavior

So what is workplace bullying? Similar to conduct you may have
witnessed on the playground as a child, workplace bullying consists
of teasing and belittling comments; glaring; yelling; threats;
assault; battery; providing impossible deadlines; undermining or
criticizing an individual's work; and ignoring or excluding
individuals.

Unlike harassment that is prohibited under most federal and state
discrimination statutes, bullying is not based upon a protected
status such as race, gender, age, or disability. Like harassment,
bullying behavior typically originates from someone in a position of
power or authority. But as shown in the Indiana Supreme Court case,
coworkers are not above such conduct.

Does the Devil Wear Prada?

Companies should be concerned about workplace bullying because, like
any type of harassment or workplace violence, bullying can damage
employee morale, a company's reputation and its bottom line.
Workplace bullying decreases productivity, increases turnover, and –
of course – escalates attorneys' fees and costs.

A 2007 poll by the Workplace Bullying Institute revealed that 37
percent of the U.S. workforce (54 million employees) has experienced
workplace bullying at some point in their careers. One study
reflected that victims of workplace bullying reported more job
stress, depression, less job commitment and higher levels of anger
and anxiety than victims of illegal harassment based upon protected
categories. Interestingly, the same study shows that 40 percent of
workplace bullies are women.

The more severe effects associated with workplace bullying may stem
from the fact that it is not considered illegal and, therefore, many
employers do not have policies prohibiting such conduct or procedures
in place for reporting, investigating, and remedying the conduct.
This may soon change. At least 13 states (including New York, New
Jersey, and Connecticut) are considering anti-workplace bullying
laws, also called "healthy workplace" legislation. These new laws may
allow employees to sue both their employers and the alleged bullies
for the offensive behavior.

Looking Down the Road

Progressive employers should emphasize to their employees that
workplace bullying will not be condoned or tolerated. It's also
advisable to incorporate workplace bullying into your harassment and
workplace violence policies and training modules. If workplace
bullying is reported, prompt corrective action should be taken – up
to and including discharge.

Implementing a strong anti-workplace bullying program will not only
minimize your legal exposure, but it will also enhance your company's
reputation as being an organization that cares about its employees
and treats them with dignity and respect.