Apr 22, 2008
A few weeks ago, I wrote about legislation to prohibit workplace bullying. I suggested that if workplace bullying met the definition of harassment, employers should act to prevent and correct it. The issue involves more than just employer liability, as a recent Indiana case reveals. There, a cardiovascular surgeon challenged a $325,000 jury verdict against him for an assault against a hospital operating room perfusionist. Contrary to popular belief, an "assault" doesn't mean physical contact. In Indiana--and most states have similar laws--it means "one acts intending to cause an imminent apprehension of a harmful or offensive contact." (If the contact actually occurs, that's battery.) So a workplace bully can commit an assault, subjecting him to civil liability, even if he doesn't touch the bullied party. Here, the defendant "aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, '[t]hat he was going to smack the s* *t out of me or do something.'" (Pretty good description for a legal opinion, wouldn't you say?) The defendant wanted to exclude expert testimony from a doctor who classified his behavior as "bullying." He also wanted the jury to be instructed that the phrase "workplace bully" wasn't relevant to the elements of the plaintiff's claims; that being a workplace bully isn't against the law. The trial court denied those requests and the appellate court agreed and said the term was an appropriate one for the jury to consider. From an employer's perspective, this kind of assault could be a form of harassment. Even complaints that don't result in any physical altercation should be investigated. And workplace bullies beware--you can pay for your behavior, and the consequences can be more serious than heading for the principal's office.