What happens when one employee assaults another – verbally? It’s tricky for employees to win cases alleging hostile workplace environments when no form of discrimination is involved. But that might be changing.
What consitutes assault and intentional infliction of emotional distress – better known as “workplace bullying?”
A recent court ruling shows that the bar is set pretty low when it comes to proving that an employer has a worker who engages in bullying.
A perfusionist (a type of medical technician) at a hospital filed a civil assault claim against a surgeon who publicly berated him in an operating room.
The plaintiff said the surgeon was angry at him because of reports to hospital administrators about the way the doctor treated other perfusionists.
In testimony, the perfusionist said the surgeon aggressively and rapidly advanced toward him, screaming and swearing. He felt the doctor was going to hit him but stopped short, saying, “You’re finished. You’re history.”
A jury awarded the plaintiff $325,000. But the surgeon appealed on the grounds that the jury was not instructed that “workplace bullying” wasn’t an issue for the jury’s consideration.
The Indiana Supreme Court disagreed, saying “It is an assault to shake a fist under another’s nose,” even without striking a person.
The court also said, “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.”
Oddly enough, the attempt to keep the hot topic of workplace bullying out of this case had just the opposite effect. The court’s decision has drawn the attention of many in the legal community as an acknowledgment by the court of workplace bullying as a phenomenon and a legal term. Some are calling this the first real court case about workplace bullying.
The Indiana court even provides a partial definition of workplace bullying in its written opinion: “Workplace bullying could be considered a form of intentional infliction of emotional distress.”
New laws could bring changes
In this case, the bullied person sued his co-worker instead of his employer. That was likely a decision made by the perfusionist’s legal counsel, because when faced with lawsuits charging hostile work environments, courts look for hostility based on race, religion, gender, age or another category protected by civil rights laws.
However, employees may soon be able to sue their employers instead, even when there’s no discrimination involed.
At least 13 states are considering anti-workplace-bullying laws, often called “healthy workplace” bills.
The laws would allow people to sue their employers for bullying or offensive behavior even when the conduct isn’t connected to discrimination.
Employment lawyers predict such laws would produce a huge number of bullying lawsuits.
And plenty of people think they’ve been bullied at work. A Zogby poll conducted for Workplace Bullying Institute shows 37% of U.S. workers believe they’ve been bullied at work.
Most of the bills introduced are based on a draft by law professor David Yamada. His version would not only allow employees to sue over bullying bosses. It would also premit lawsuits in cases of backstabbing and sabotaging by co-workers.
Yamada’s draft bill also provides encouragement for employers to handle bullies. The bill says employers have a defense if they use reasonable care to prevent or correct the problem and employees fail to avail themselves of those measures.
No one likes a workplace bully. But what can companies do about them? What can you do as an HR professional? Tell us about experiences you’ve had, or comment about the Indiana case or the impending laws.