Posted on April 30, 2008 10:56 AM by
Shanti Atkins
Can a workplace bully create true legal liability for an employer? Based on a recent decision of the Indiana Supreme Court, it would seem that the plain answer is 'yes.'
This April, the Indiana Supreme Court decided what appears to be the first workplace bullying litigation of its kind. The Court reinstated a verdict of $325,000 in favor of an employee who was assaulted by a surgeon during a verbal altercation at the hospital. While the surgeon attempted to argue that the damages were excessive and that the ultimate finding of assault was based on insufficient evidence, the high court rejected these arguments, and also allowed into evidence the surgeon’s prior aggressive acts in order to prove that he was a workplace bully. As importantly, the supreme court supported the trial court’s refusal to give jury instructions that there was no basis in law for a “workplace bullying” claim. (See Raess v Doescher, IndSupCt, April 8, 2008).
The Raess case is a reminder to employers to get a handle on their workplace bullies. Just because behavior does not appear to involve serious physical harm, or to rise to the level of unlawful harassment and discrimination, does not mean that a workplace bully is not causing irreparable damage to the workplace, as well as creating serious legal liability.
Bullies are Rampant
Unfortunately, our workplaces seem to be full of unpleasant and abusive people who don’t discriminate among their victims. Don’t believe it? Consider this. About 45% of American workers have been the target of workplace abuse. Another study by the Workplace Bullying Institute concluded that:
When Bullying Creates Harassment Liability
We should also remember that bullying behavior, applied equally to both men and women, can still result in a potential gender discrimination claim – at least in California. How is this possible? Well according to a 2005 decision out of the 9th Circuit, the bullying behavior can have a more severe impact on women who are likely to be more physically intimidated due to factors such as size and power inequities. [See EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005)]. This 2005 case is another reminder that classic “jerk” behavior may create more legal risk than employers ever imagined.
Take Control of Your Bullies!
Because bullying damages your business and can easily lead to harassment and workplace violence claims, it’s important to address the problem head on. Some simple things you can do:
- Set conduct and behavior expectations. If your culture contributes to bullying behavior, think about making some changes – even small ones can make a big difference. (A bank I used to work with had a hard and fast rule that employees should not be “called out” or disciplined in group meetings.)
- Senior management needs to lead by example. A well known, high-powered bully needs to be addressed head on.
- In my experience, comp and rewards drive 99% of behavior in most workplaces. Don’t reward bullies – in fact, make it cost to be a bully. (Several clients I work with tie a large component of a manager’s annual bonus to employee feedback from 360 reviews.)
Training is Key
If you really want to get your message out, training is critical. You don’t need to go overboard on this one though – and you certainly don’t need a stand-alone anti-bullying course.
What you do need is a harassment course that thoughtfully integrates the broader concepts of workplace respect and dignity. While employees need to understand the basics of unlawful harassment prevention, not all undesirable and costly behavior is illegal. In fact most of that spite and venom falls into the ubiquitous and category of plain “unpleasant.”
And we all know why employees sue. It’s not because of their in-depth knowledge of case law, statutes or employment law treatises. Employees sue because they feel wronged and mistreated. Behind every successful plaintiff, there’s invariably a jerk who went unchecked, and untrained.