Banning Bullies

To see results of a national survey on workplace bullying, click here.

Outside the open heart surgery room of an Indiana hospital, Dr. Daniel Raess, a cardiovascular surgeon, raced toward Joseph Doescher with clenched fists, piercing eyes, a beet-red face and popping veins. Doescher, a perfusionist who operated heart/lung machines during Doescher's surgeries, backed up against a wall, believing, he later testified, "that he was going to smack the [expletive] out of me or do something." Then Doescher says Raess stopped, turned and stormed past Doescher exclaiming, "You're finished. You're history."

According to Doescher, Raess was angry because Doescher had complained to the hospital administration about the way Doescher treated other perfusionists. In fact, Doescher claimed at trial that Raess was a workplace bully.

The jury believed that Raess' behavior in the hallway incident constituted assault. But they found for the defendant on the charge of intentional infliction of emotional distress. Raess' appeal centered on whether the jury's award on the assault claim had been unfairly influenced by the workplace bullying testimony.

In overturning the jury award, the Indiana Court of Appeals found that the value of Namie's testimony was substantially outweighed by the danger of unfair prejudice to the defendant. It also found a reversible error in the trial judge's refusal to instruct the jury that workplace bullying was not a cause of action.

"There is a fine continuum between conduct so bad we should be restricting it and conduct that is just an incidental explosion," says Garry Mathiason, vice chair of Littler Mendelson. Mathiason is adamantly opposed to government trying to draw the line.

The best way to forestall such legislation may be for employers to incorporate civility rules in their employment policies, much as the legal profession has rules of civility governing behavior in the courtroom, Mathiason says.

Senior Editor

Mary Swanton

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