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Workplace bullying by managers: Unpleasant, but is it illegal?

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,People Management

According a recent Zogby International survey, 37% of U.S. workers report that they’ve been bullied at work. Not surprisingly, they say, the overwhelming majority (72%) of bullies are bosses. 

Workplace bullying is harassment that’s not necessarily based on an employee’s protected characteristic, such as gender or race. Bullying can adversely affect physical and emotional health. But, unlike harassment based on a protected class, bullying may not be illegal.

Bullying bills: 13 proposed

So far, 13 states have proposed “healthy workplace” legislation that would make workplace bullying illegal. So far, none of the bills has passed.

If enacted, the proposals would prohibit employers from creating or permitting “abusive conduct” or an “abusive work environment.” The proposals generally define “abusive conduct” broadly as conduct of an employer or another employee that a reasonable person would find hostile or offensive. 

If workplace-bullying laws are enacted, employers will confront lawsuits raising legal issues that have been easily dismissed under the discrimination laws.

For example, courts now say that discrimination laws do not impose a civility code on employers, and that mean-spirited behavior unrelated to an employee’s protected class isn’t unlawful.

Under the proposed workplace bullying laws, that would change. The proposed laws would invite courts and juries to scrutinize the way people treat each other at work. Should respectful behavior in the workplace be legally required?

All eyes on Indiana ruling

A recent decision highlights the potential costs of allowing workplace bullying to go unchecked. The Indiana Supreme Court affirmed a ruling in favor of a hospital employee who sued a surgeon, claiming emotional distress and assault. (Raess v. Doescher, No. 49S02-0710-CV-424, Indiana Supreme Court, 2008)

At the heart of the Indiana Supreme Court decision was a “workplace bully” in the form of a cardiovascular surgeon. The case involved a perfusionist, the person who operates the heart/lung machine during open-heart surgery, who didn’t like the way Daniel Raess, a cardiovascular surgeon, treated him. And no wonder.

Raess aggressively charged him “with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” The perfusionist testified that he backed up against a wall and put up his hands, fearing that Raess was going to hit him.

The perfusionist sued the surgeon for assault and intentional infliction of emotional distress. A workplace-bullying expert testified that the surgeon was a “workplace abuser.” The jury awarded damages of $325,000.

The surgeon appealed, arguing that the trial court was wrong to consider workplace bullying as a claim. The Indiana Supreme Court disagreed, explaining that workplace bullying could be a form of intentional infliction of emotional distress.

A trend in the making?

It is too soon to predict whether the Raess case presages a trend of workplace-bullying claims. If it does, what should employers do to minimize the risk of such claims?

The difficulty for employers is that different employees subjected to the same conduct will often perceive it differently. What one employee feels is bullying may not trouble another employee. Where is the line between a supervisor being demanding and being abusive? 

Certainly, employers should have policies that make clear that bullying behaviors are not tolerated. The employee handbook should emphasize that employees are to treat each other with respect. Employers also should encourage employees who feel bullied to report the conduct, much the same as discriminatory harassment complaints are handled.

Employers should treat bullying complaints seriously and investigate them. Depending on the results, employers should take appropriate remedial actions.

As with other employment-related claims, employees who believe they are treated fairly are less likely to sue.

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