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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.

No two people are alike – and that holds true for our prejudices. But there are some interesting trends that have found certain prejudices expressed more clearly among defined gender and ethnic groups.

Several studies have found that men are more tolerant of discrimination than women, but a study released this month goes one step further to find that both genders tend to more readily accept prejudice against some immigrants and Arab-Americans.

The study also found that:

• Men and women differed the least in regard to discriminating against Arab-American airplane passengers, and most in regard to African-American motorists.
• The highest percentage of respondents accepted discrimination against “poorly educated immigrants,” followed second by acceptance of discrimination against Arab-Americans.
• Respondents were least likely to accept discrimination against the genetically disadvantaged, or people who are genetically at high risk for diseases that require expensive medical care.
• Men were 19.6 percent more likely than women to tolerate discrimination against obese people and 17.4 percent more likely to accept racial profiling.

The results, just released this month, come from surveys of more than 3,300 people conducted in 2002 by University of Southern California researchers.

It appears as though implicit bias (often subconscious) is driving the bulk of the problem. Edward J. McCaffery, a USC law professor, who co-authored the study, concludes that an individual who sees nothing wrong with certain kinds of biases will often find others objectionable.