InsideCounsel » July 2008
Banning Bullies
Court opens the door to workplace bullying testimony as legislatures ponder action.
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.
In recent years, bosses who intimidate their subordinates by employing emotional or physical abuse, public humiliation or excessive criticism have inspired a movement dedicated to exposing and ending workplace bullying. But in the absence of state and federal laws banning workplace bullying, the issue hasn’t generated lawsuits. That’s why Doescher’s case attracted the attention of employment attorneys.
Doescher won a $325,000 jury verdict on his assault claim in a 2005 trial that included expert testimony that Raess was a workplace bully. On appeal, the defendant objected to the expert witness and the trial judge’s refusal to instruct the jury that there is no basis in law for a workplace bullying claim.
In April, the Indiana Supreme Court upheld the jury award in a 4-1 decision. In doing so, the high court opened the door for plaintiffs’ attorneys to characterize abusive employers as “workplace bullies.” That and continuing efforts in several states to pass legislation outlawing workplace bullying has some defense attorneys warning of a future onslaught of litigation from employees who aren’t members of a protected class.
“Not everybody can say, ‘I know I was discriminated against because of race [or another protected category],’” says Brian LaFratta, a labor and employment lawyer at Fisher & Phillips. “But everybody can say ‘I had a boss who was a jerk.’”
Disputed Witness
Based on Doescher’s testimony, there is little doubt that Dr. Raess, a prominent heart surgeon at St. Francis Hospital in Beech Grove, Ind., was a jerk. Doescher is not a member of a protected class who could link a supervisor’s bad behavior to discrimination outlawed under Title VII. So he claimed intentional infliction of emotional distress and assault—difficult claims for an employee to prove.
To buttress his case, Doescher’s attorneys enlisted Dr. Gary Namie, co-founder of the Workplace Bullying Institute, which conducts research and lobbies for workplace bullying laws. Namie, a psychologist, testified that the confrontation between Doescher and Raess was “an episode of workplace bullying” and characterized the defendant as “a workplace abuser.”
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.
