"Bullying" Is Becoming Part of the Zeitgeist

Early in the second year of writing this blog, I had what I think was my first recognition of bullying as an "issue" in the employment law world, Can't Wait for Bullying Cause of Action. That was now nine years ago.

I was struck by just how far the concept of bullying has come, not necessarily in the law of employment, but in society as a whole, by the first two featured blog posts in today's Huffington Post's Daily Brief:

	Marlo Thomas: Bully: The Year's Most Important Film Even if you have to drive across state lines to see Bully, your kids need to be in the audience. Whether you know it or not, they may be among the 13 million American children affected by bullying every year. For them, this is more than just a movie. It is real life.
	Bob Cesca: Right-Wing Bullies Continue to Attack Children It's difficult to assign psychological motive when it comes to political tactics, but based upon the collective behavior of far-right conservative Republicans, we can only deduce that a considerable number of them are bullies and ought to be treated as such.

While it is true that the so called anti-bullying law has yet to pass in a single legislature, it is foolish on the part of those in the world of employment law who think that it is a bad thing, to believe given the progress of this concept in our society as a whole, that it is not coming.

For those, like me, who think that the passage of this legislation would be an unmitigated disaster for employers and ultimately employees (albeit a real boon for those of us who make our living on employment litigation), the prescription is not to ignore the trend, but to make sure that conduct which can be perceived as bullying is addresssed promptly and quickly, not because it is illegal, but because it is both wrong and bad business.

My hope is that  this post will, as so many (all?) of the posts that have preceded it over the years have done, just fade into oblivion, noticed by few and remembered by none.

My fear is that 10, 20 years from  now, through the magic of google or some future research tool that we don't even know about yet, it will be dredged up and someone will say, you know he had a good point, we should have listened.

A Timely Follow Up -- The Importance of Action Not Words

Given the topic of my previous post  --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.

The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.

Giving Aid to the Enemy: The Healthy Workplace Act Explained

David Yamada who posts at Minding the Workplace is also the author of a model bill, The Healthy Workplace Act (HWB), designed to address bullying in the workplace. A recent post, The Healthy Workplace Bill: What’s it all about?, gives a bit of the procedural history but also links to what he calls an "excellent slideshow that explains the need for, and basic provisions of the HWB," that was prepared by Deb Falzoi, a professional web designer and computer graphics expert who doubles as communications director for Massachusetts Healthy Workplace Advocate.

I concur -- it is an excellent slideshow. And if you have any interest in the issue (or just want to see a very impressive presentation) I encourage you to check it out.

Recommending that you check it out, could seem strange given my repeated opposition to the passage of the HWB. And to be clear, the "enemy" referred to in my headline is not really accurate. Bullying behavior is wrong and should be addressed and with that I am in common cause with David and the other supporters of the HWB.

Our difference, and it is a substantial one, is how best to get there. I do not believe the legal system, the HWB's preferred method, is capable of making the types of nuanced distinctions required to enforce the HWB.

As Exhibit A, I offer the presentation. When you check it out, pay careful attention to the types of behavior that can be called "bullying":

• false accusations
• yelling, shouting, screaming
• exclusion and "the silent treatment"
• withholding resources necessary to do their jobs
• behind-the-back sabotage and defamation
• put-downs, insults, and excessively harsh criticism
• unreasonably heavy work demands

and please explain how a legal system that is stressed deciding whether an employment decision was based on race or gender, is going to distinguish between what is a reasonable and and unreasonable work demand, or appropriate, constructive criticism versus excessively harsh criticism, just to cite two of the categories.

I know that the HWB attempts to put in procedural protections to ensure that a suit can't be based on "just a bad day at the office," but as someone who is in the trenches where those battles are fought, I know it will not work. (Let me rephrase that, it could work, but at a tremendously prohibitive cost in both judicial and employer resouces. Lawyers, however, would benefit tremendously.)

Relying on trial courts to be effective gatekeepers on this issue is simply a flawed strategy. First, it ignores the basic principle that when an employer is sued they have lost.  See my earlier post, Bullying As a Cause of Action: One Large Step Closer.  Given the HWB to work with, any lawyer who could not craft a viable complaint on what he or she is told by any employee who is unhappy with their workplace, should turn in their bar card. Remember the standard for chucking it out at that stage, which would still cost the employer the cost of retaining counsel and making an initial pleading, generally requires the court to accept as true anything that is alleged in the complaint.

Secondly, it has not worked even when there was a much higher bar. In Texas, the Supreme Court has repeatedly lamented the failure of lower courts to serve in the gatekeeper function in cases of intentional infliction of emotional distress, where the standard is:

only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, Section 46 cmt. d (1965).

If the trial courts can't screen out cases where the test is "outrageous conduct" we can't possibly expect them to do so where they are being asked to make subtle distinctions involving the kinds of conduct listed above. In fact, it would require  what courts from the Supreme Court on down have frequently insisted they are not interested (or capable) of being,  "super personnel departments" as the 1st Circuit described it.

The key to regulating inappropriate conduct lies in employer action. And in the presentation, there is a section on how such conduct is harmful to business. That is the case that needs to be made.

Let's just make it in the C-Suite, not the courthouse.

Bullying Litigation -- Not in the Workplace Yet

It's been awhile since I posted on bullying, but an article earlier this week in the Law Blog of the WSJ reminded me the topic is not going away. Back Off: Bullying Litigation on the Rise.

Fortunately, the article is confined to bullying litigation (and the underlying legislation which gives rise to that litigation) in educational institutions.

But in case you didn't catch my earlier post about the camel's nose in the tent strategy for those who seek to legislate against such behavior in the workplace check out Anti-bullying Legislation for Schools, An Inevitable Tie.

There's That Word Again - Bully

Hat tip to the folks at the Daily Labor Report, who found a case that will fold into my presentation that I will be giving at the 2011 Gulf Coast Symposium  on Human Resource Issues later this spring. My presentation is Civility in the Workplace: Now It Is a Legal Issue.

And the case is Street v. U.S.Corrugated, Inc. (W.D. Ky 1.25.11) [pdf], in which the district court granted the employer's summary judgment in a case brought by four employees (one man, three women). The employer had hired a turn around specialist who was accused by the employees, both men and women, of abusive behavior.

Unfortunately, for the plaintiffs' Title VII gender discrimination claim, the employer was able to establish the "equal opportunity harasser" defense. Noting that there was no allegation that the conduct was motivated by sexual desire, the burden on the plaintiffs' was to show that "the critical issue ... is whether members of one sex [were] exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed." The short answer from the Court:

The record here indicates that both men and women fell victim to Greathouse's abusive management tactics. .... Greathouse's actions were certainly inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender.

For retaliation under Title VII, the employees alleged that following their complaints about Greathouse's management style, including a five page "Formal Harassment Complaint" by one of the plaintiff employees, they were terminated. There was no question that they had complained and had alleged a causal connection between the complaints and adverse employment actions, but the Court still granted summary judgment.
What was missing?  protected activity. According to the Court:

Plaintiffs obviously believed that Greathouse’s conduct made their work environment a hostile one and they opposed his presence at the factory and his intolerable management style. However, Title VII only protects employees from retaliation for having opposed an employer’s unlawful actions, such as discrimination based on gender, age or race. There is no protection under the act for employees who simply complain about the boss being a bully. (emphasis added)

This is the type of case where advocates for anti-bullying legislation will argue this shows the need for such a legislative solution. (The Court threw out another handful of claims including intentional infliction of emotional distress and terroristic threat.)

But maybe not. Although the timing is not clear, this is not a case where the employer turned a deaf ear. The abusive manager was hired near the end of August, 2007 and after the employees made the formal complaint, investigated and relieved him of his duties by the first of June, 2008.  To me, employers who listen to their empoyers and truly don't tolerate jerk like behavior are the most appropriate solution. Far better than the ills of legislation that no matter how carefully tailored, is in my view almost certain to spin out of control.

Employers, to me the lesson is clear: if you don't want a legislative fix, it's time to make sure that you solve problems of this type of behavior yourself. And now.

When "Sabotgage" Becomes Illegal

I continue to see a number of articles about the need for anti-bullying legislation, much to my dismay. When there is an article about it in the weekly Sunday supplement that's in my local newspaper, you know the movement is gaining traction. See Workplace Bullying: Do We Need a Law?

At least the article had the good sense to include this quote from Victoria Pynchon, who blogs regularly at  Settle It Now Negotiation Blog:

Making a federal or state case over the day-to-day management of any workforce is just plain nuts. At best, it’s a jackhammer solution to an Emily Post problem. At worst, it’s a new scheme for extortion.

What prompted the chain of thought that led to this post was this article from the Official Wire,  California Pizza Kitchen Sued By Former Employee For Harassment And Sabotage Due To Sexual Orientation.

The connection to anti-bullying legislation? Sabotage at work is one of those ills that the statute is designed to protect against. A brochure supporting the Healthy Workplace Bill, includes this definition of bullying:

Verbal abuse, threats, humiliation, intimidation, work interference or sabotage. All of which prevent work from getting done and harm employee health. [emphasis added]

And what kind of allegations might we see in such "sabotage" cases?

Well according to the harassed pizza employee Kenneth Abramowitz it was a homophobic kitchen manager who:

allegedly sabotaged Aramowitz by delaying his food orders, when Abramowitz tried to expedite his customer’s food orders Aguilar would degrade Abramowitz’s homosexuality with verbal and physical slanders.

While I don't want to minimize the problem, and here the verbal abuse might make this a case that would seem actionable, I have griped about slow food service too many times myself to think that it should give rise to a cause of action.

I don't think there is a disagreement that the workplace should be more civil, but adding another layer of legislation is surely not the only way to get there.

He keeps saying and saying and saying .....

Bullying As a Cause of Action - One Large Step Closer

As long time readers may remember, I have for a long time been concerned about a proposed cause of action for bullying. My first post about bullying goes all the way back to January 12, 2003, Newest Workplace Problem? Bullying?

But later that year, my first mention of it as a cause of action was a post about a case decided in England, Can't Wait For "Bullying" Cause of Action to Cross the Atlantic. Four days later though, I had found mention of a proposed statute that would make bullying a cause of action, You Thought I Was Kidding About A Cause of Action For Bullying. 

So I have been writing about bullying almost as long as I have been blogging. Still, I have been remiss in reporting on a major development.
 
And the reason is simply that I am stunned and discouraged.
 
I really thought that it would be sometime before the Healthy Workplace Act, the model bill drafted by Professor David Yamada would advance through even one side of a state legislature. But thanks to the New York State Senate's action on May 12th, that threshold has been crossed. See, Anti-Bullying Legislation Passes NY Senate.

Discussion of that act has gotten some media attention which hopefully is a good thing. Professor Yamada has taken some of it on in a recent post, Why the Healthy Workplace Bill is not a "job killer".

Because David and I have engaged in a back and forth on this topic in our respective blogs, I am taking the liberty of setting forth his arguments in that article in full and giving my view on why I think his arguments miss the key point.

David's has five points in his rebuttal (in fairness to David, he was replying to a specific article and so I don't mean to say that these may be his only five points):

1. High standard for proving a case — The HWB requires an individual to prove that the bullying behavior was malicious and harmful to physical and/or mental health. By legal standards, that’s a high threshold.

2. Damage cap for lesser claims — In cases where the bullying did not include a negative employment decision such as a demotion or termination, emotional distress damages are limited to $25,000 and no punitive damages are allowed. In other words, the HWB blocks runaway jury verdicts for comparatively modest claims.

3. Preserves management prerogatives — The HWB expressly maintains traditional management prerogatives to evaluate employees. It does not do away with the rule of at-will employment.

4. Incentives — The HWB imposes liability on employers, but it provides them with incentives to reduce or avoid liability by taking adequate preventive and responsive measures toward bullying.

5. Notice – The New York version of the HWB requires employees to put employers on notice of bullying behavior as a pre-condition for filing a lawsuit.

Here is the problem. The limitations above are for the most part only defenses against liability or limitations on the ultimate damages that an employer may have to pay to if an employee sues.

What that ignores is the most basic principle of employment law litigation. Once an employer is sued, they have lost.

I can not over emphasize this point. Once an employer has been sued, they have lost.

Lawsuits once filed go away only one of four ways --

1. voluntary dismissal (unlikely or it would not have been filed in the first place);
2. by summary judgment (obtainable only after substantial discovery has been involved);
3. settlement (only by payment of some sum that the plaintiff and his or her counsel will accept and rarely before substantial defense costs have been incurred); and
4. at the conclusion of a trial and all appellate processes when a final judgment is entered.

As a practical matter, there is no recourse for the employer. While winning by summary judgment or trial is sometimes emotionally satisfying, it never comes close to matching either the hard dollar costs (the biggest component which is likely to be fees to law firms, including mine) or the "hidden" costs of employee time and stress that the human beings defending an employer's decision undergo over the course of litigation, which at a minimum is likely to extend over months, and where it goes all the way through the process, over years.

Here's a graphic way of saying basically the same thing that appeared as part of an April 23, 2007 cover  story in Business Week.

Although legal standards may allow under certain circumstances employers to recover their attorneys' fees, as a practical matter the chance is so slim as to not exist.

Although creating a bullying cause of action would be bad enough, it is made even worse because courts will be hard pressed to grant summary judgment.  Ask any plaintiff's employment lawyer what is their single biggest interim goal in any employment lawsuit, and they will tell you to avoid summary judgment. If they can force a trial on the merits, they know that the settlement value of the cases goes up substantially.

So, when you create yet another cause of action, this time based on conduct that is so subjective, you will have opened the door for almost any employee in any environment to bring a lawsuit, and worse, a law that is written in a manner so that summary judgment is almost impossible, it is in my view both a very dangerous and certainly very costly step.

Arguments can be made that cost is present in any employment law and in any event is justifiable. The first part of that is true.

Some causes of action do justify the costs. Discrimination tied to certain characteristics for example, passes that test. I do not believe bullying or in the words of the Healthy Workplace Bill, protection against an "abusive work environment," does, or even comes close.

Many will say that I am overstating how big a problem permitting employees to file suits based on "bullying behavior" will be. 

Check out the language from S.1823B passed in a 45-16 vote by the New York Senate. You tell me how hard it would be to initiate a lawsuit under this bill or to get past summary judgment.

The way the statute works, it is is illegal for an employer to "subject an employee to an abusive work environment." An abusive work environment is one where"abusive conduct" causes the employee to suffer physical or psychological harm.

Then look at the definition "Abusive conduct" and notice how many "fact questions" exist.  It means:

• conduct, with malice,
• taken against an employee by an employer or another employee in the workplace, that a reasonable person would find to be hostile, offensive and unrelated to the employer's legitimate business interests.
• In considering whether such conduct is occurring, the trier of fact should weigh the severity, nature and frequency of the conduct.
• Abusive conduct shall include but not be limited to, repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of an employee's work performance.  A single act shall not constitute abusive conduct unless the trier of fact finds such act to be especially severe or egregious.  

Although it goes without saying that I deplore bullying behavior both as a moral matter, because it is bad business and because it puts employers at risk for numerous other adverse consequences, I remain adamant that it would be a disaster for the legislation to pass, in New York or anywhere else.

My thanks to my friend Jeff Polsky, who had one of the best headlines in reporting on this, The meek shall inherit their own protected category, at California Employment Law where he posts, for prompting me to finally respond.

Update: This is my quickest update ever. Probably before anyone has read it and that's because I had not checked my RSS reader or I could have linked to David Yamada's latest, New York workplace bullying legislation is in the news. In that post, he points out a number of negative comments about the New York bill and notes that many of them focus not on the employees who have been injured, but on litigation costs etc.
But there are times when those costs are so high and the disruption so great, that it can not be discounted so lightly. This is one of those times.

4/5 of an MDV, But It's the Subject Matter That Caught My Attention

Although my usual standard for jury verdict reports is a million dollars (MDV's), this headline caught my attention, Court awards bullied student $800,000.

It has long been my view that the most likely path for a bullying cause of action recognized in the workplace (other than the continuous efforts of Professor David Yamada) is the widespread acceptance of anti-bullying legislation applicable to the schools. Anti-bullying Legislation for Schools, An Inevitable Tie.


Based on local reporting in the Austin area, I know that a similar suit has been filed against a local area school district and when juries start returning these kinds of awards, no matter whether they ultimately stick, the fact is, more suits will follow.

It may be yet awhile before the first state enacts anti-bullying legislation in the workplace, but having been following it for more than seven years, (see Newest Workplace Problem? Bullying?, January, 2003), I am beginning to think of it in terms of likely, if not inevitable.

On the other hand, what seems to me to be the path to workplace legislation, anti-bullying laws in the schools, and the resulting litigation and cost to local school districts, might be the demonstration of the dangers that stops it in its tracks.

Time will tell, but for employers and the legal system the outcome is not a small issue.

Anti-bullying Legislation for Schools, An Inevitable Tie

David Yamada, who blogs at Minding the Workplace, is a tireless crusader for anti-bullying legislation. He is the author of the model Healthy Workplace Bill and lately has been working in his home state to see if he can shepherd it through the Massachusetts' legislature. Last Wednesday there was a hearing on the bill.

In a follow up report, David posts today about a question  he received from a state legislator about the connections between bullying in schools and bullying in the workplace. You can see his comments at Workplace bullying and school bullying: Ties and parallels.

Although he has some interesting points about behaviors, he doesn't even mention the most significant connection in my mind. I have long been of the view that legislation against bullying in the schools is laying the foundation for the ultimate success of anti-bullying legislation in the workplace.

Although there are obvious differences between school and the workplace, and perhaps more importantly between students and employees, once it has become accepted that the appropriate tool for controlling bullying behavior is legislation, I am afraid it is only a matter of time before some state decides if it works for the schools, it will also work on the job. How far are we on the school front? According to Bully Police USA, 41 states already have legislation dealing with bullying in the schools.

As I have said repeatedly, it is not that I in any way condone bullying type behavior.  I don't. It is both wrong and bad business. However, it is my strong belief that litigation is too blunt an instrument to deal with behavior that all concede is measured on a continuum from that which is to be expected when humans are involved to that which should be found unacceptable.

Our legal system is good, but my experience in the workplace is that it will be asking far too much for it to try to deal efficiently with a cause of action for bullying, no matter how well crafted the legislation.

Joint Commission and Bullying

If you have ever worked in or around hospitals, you know that two words that get everyone's attention are, Joint Commission. That's a shorthand description of an accreditation review that is a top to bottom scrubbing of every facet of an institution, with serious consequences if you don't meet the standards.

So when Professor David Yamada, the leading proponent of anti-bullying legislation notes that the Joint Commission has enacted standards that can be read as requiring anti-bullying procedures and training, I take note. See Workplace bullying in healthcare I: The Joint Commission standards.

Bullying: The Movement that Keeps on Trying

David Yamada and I have very different view points on whether or not a bullying cause of action should exist (he drafted the model act that has been offered in a number of legislatures), but he is always a good source for monitoring what is going on and I take what he says seriously.

In a recent post, November’s Work, Stress, and Health Conference: A tipping point for workplace bullying research? commenting on the biennial meeting sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology, he points to five specific sessions that specifically refer to bullying and a number of others that use terms such as 'workplace incivility, aggression, harassment, violence and mistreatment."

His thoughts:

It’s enough to make me wonder if we’re reaching a saturation level! But for now I’ll gratefully accept the abundance as sign that we’re reaching a good tipping point in terms of the mainstreaming of workplace bullying as an employment relations concern.

My position is not pro-bullying, just anti-legislation. My concern is that no matter how well drafted, it is too nuanced an issue for the courts to successfully handle. I am sure Professor Yamada will have more posts after the conference (early November) and that they will be well worth following, no matter where you are on this issue.

A "Bully" Professor Goes Online

Those who have read my prior posts or heard one of my presentations on the topic of bullying, will be familiar with the name, David Yamada. He is the law professor who drafted the uniform anti-bullying legislation that has been introduced in several different state legislatures.

Professor Yamada, is now on line with his own blog, Minding the Workplace, and in his New Year's Day post, Immersion in the Twisted World of Abuse at Work provides some background on how he became interested in the subject.

Clearly Professor Yamada is adding an interesting voice to the little niche of the blogosphere dealing with labor and employment law. If you are an HR practitioner you should check out his post HR Was Useless. It's an interesting perspective that may hit a little too close to home for some.

Welcome Professor Yamada.

Bullying in the Air?

I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?

Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association.

I am not sure there is really any new spirit behind the movement for bullying legislation, other than the general pro-employee boost of the election, and the draft legislation has still not made noticeable headway in any legislature. Still, it is clear that this is a subject that makes for good press and the proponents of legislation to deal with it continue to plug away.

(On a related note, the author of the proposed draft legislation, Professor David Yamada, has a new law review article urging a new philosophical approach to employment law in the U.S. , moving from what he calls a "markets and management" approach to a "dignitarian" one. See the link to the article at Yamada on Human Dignity at the Workplace Prof Blog.)

Like all things in employment law, the longer it is talked about, the more it becomes a familiar concept and at some point there comes a tipping point where it begins gaining real traction. The difficulty courts will have in controlling claims that would arguably fall within such a nebulous standard would really be unprecedented. Employers should be making that case at every opportunity.

Bullying Indiana Style Makes a (Limited) Comeback

Readers will know that in my ongoing campaign about the dangers of adoption of a "bullying" cause of action, one case that attracted considerable attention was that of a cardiac surgeon who was accused of being a workplace bully when he charged and yelled at a perfusionist (the fellow who operates the heart/lung machine during open heart surgery).

When the perfusionist sued the surgeon, his legal claims were intentional infliction of emotional distress and assault, but the trial strategy was to present Dr. Raess as a classic "workplace bully." The jury found for the surgeon on the intentional infliction claim, but for the perfusionist on the assault claim and awarded $325,000. See, Is My One Man Quest Against Bullying Failing?

On appeal the intermediate court threw out the award because the trial court allowed the testimony of a "bullying expert," Dr. Gary Namie and failed to give a requested instruction that "workplace bullying" was not an issue in the case and that there was no basis in the law for such a claim. See, First "Bullying" Case Goes Down in Flames .

Unfortunately, for the those of us who see this as a very dangerous trend, the Indiana Supreme Court today reversed the appellate court and re-instated the judgment of the trial court. Raess v. Doescher (Ind. 4/8/08) [pdf]. Although it will certainly get more limited attention in any media reports on this case than it should, it is very important to understand the really narrow basis of the decision on the "bullying aspects" of the case.

The opinion addresses two: 1) was admitting the testimony of Dr. Gary Namie as a workplace bullying expert error? and 2) did the Court err when it refused to submit the proposed instruction?

Unfortunately, the answer was no to both. However, the reason for the first was extremely limited -- the Court refused to decide the issue because it found the question of Dr. Namie's qualifications had not been preserved on appeal. (In defense of counsel for the surgeon, that seems to be a very strained reading of what happened.) The one dissenting judge makes clear that he not only found the error had been preserved but that he thought it was error to permit Dr. Namie's testimony. His view:

Dr. Namie by his own testimony is not a clinical psychologist and is not qualified to testify as to how workplace bullying affected the plaintiff, and he did not testify on that subject. This is testimony characterizing an event, but offering no assistance to interpret or understand it. Without any context, the "workplace bullying" label is noth-ing more than highly prejudicial name-calling of no help to the jury.

On the issue of the instruction, the Court fell back to the argument that in order to be error it must first be a correct statement of the law. In language that will no doubt be utilized in other "bullying" cases the Court said:

The tendered instruction advanced two concepts: (a) that "workplace bullying" was not an issue in the case, and (b) that the jury need not determine whether the defendant was a "workplace bully" to decide the case. As to the first concept, we disagree. In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue. 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. As evidenced by the trial court's questions to counsel during pre-trial proceedings, workplace bullying could "be considered a form of intentional infliction of emotional distress."

The Court did cite the trial judge's statement that the parties could argue about workplace bullying not being an issue and pointing out that he was not not giving an instruction that the case was about workplace bullying.

Hopefully any other Court cited this case as supportive of bringing bullying claims or offering "bullying" evidence, will see how limited it is.

It should be a case limited in its application; let's just hope that in trying to right one wrong, the Indiana Supreme Court has not opened the lid to a true Pandora's box. At a minimum, they certainly did nothing to help keep it shut.

The No Asshole Rule - A (Mini) Review

Stanford Professor Robert Sutton is getting some attention with his latest book, "The No Asshole Rule." According to the introduction, the genesis for the book was an essay in the Harvard Business Review. It may have made a good essay.

But it is hardly worthy of book length treatment; and let's face it, the idea is not terribly unique. See for example, Jerks in the Workplace - Disturbing, But Sound Advice. And frankly, the book is little more than a series of anecdotes and references to "academic studies," not that you would conclude there were anything scholarly about it.

There are some good Steve Jobs' stories, a report on Scott Rudin, an apparently difficult producer who has gone through between 119 and 250 personal assistants (that's good for several mentions throughout the book), and an obligatory mention of "Chainsaw" Dunlap. For some reason, he doesn't mention Leona Helmsley, I guess thorough research just isn't what it used to be.

He does give us a mention of the other side — "lots of warm and caring individuals people who are also successful business leaders" like A.G. Lafley of Proctor & Gamble, John Chambers of Cisco, Richard Branson of Virgin and Ann Mulcahy of Xerox. Although some eyebrows might get raised over his inclusion of Oprah Winfrey in that group, instead of the former one.

Sutton also throws in some advice about dealing with assholes in the workplace, which is frankly pretty lame. He also adds some "checklists" which are not quite Parade magazine (the Sunday newspaper supplement) worthy.

I probably wouldn't have read the book at all but for the presentation I am giving at the SHRM National Convention, Bullying in the Workplace: The Newest Litigation Threat? Can't say that I got a lot of material for the presentation, but the fact that it is has been written and is doing well does hint that the whole issue is becoming a more important one.

One good thing in the book are several examples from, Gig, a collection of interviews about people's work lives that is fascinating reading. (It's a follow on to Studs Terkel's oral history, Working, also excellent.) I don't know that the conclusions Sutton draws from the stories in Gig make a lot of sense, but I heartily recommend the original source. I won't do the same for Sutton's effort.

Maybe a more interesting question is the fact that professors from two well respected institutions — Stanford and Princeton* — have chosen titles, and in Sutton's case adamantly so according to his introduction, that at least in some not too distant past, would not have passed muster out of a sense of propriety if nothing else.

But it's when I have thoughts like that — that I begin to think my age is showing.

*On Bullshit, by Harry G. Frankfurt

First "Bullying" Case Goes Down in Flames

When Dr. Daniel Raess, an Indiana heart surgeon, was sued as a "bully" for his conduct in the operating room and the result was a $325,000 verdict, it caused a flourish of publicity, in part because the expert witness for the plaintiff was Dr. Gary Namie, whose foundation, the Workplace Bullying & Trauma Institute, is a leading proponent for anti-bullying legislation. Check out my initial post, Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."

That testimony has now come back to haunt the plaintiff, as it was the basis for the reversal of the verdict by the Indiana Court of Appeals last Friday, Raess v. Doescher (Ind. Ct. App. 12/8/06) [pdf]. And there was no question what the case turned on:

The following issue is dispositive: whether the trial court committed reversible error in allowing a witness to label Raess a "workplace bully."

The answer to that question was a clear — yes:

The confusion caused by Namie’s testimony is illustrated by the emphasis placed upon the testimony by Doescher’s counsel. Trial counsel referred to Raess as a "bully" in his opening statement, and in closing argument he referred to "bullying" numerous times. Counsel concluded his rebuttal closing argument by stating, "We ask for a verdict in favor of Joe Doescher. And, yes, that’s a verdict against workplace bullying and against the workplace bullying incident." .... In this case, where (1) the "workplace bullying" evidence had no probative value, (2) the evidence of assault was thin, (3) the verdict was almost completely dependent upon whom the jury chose to believe, and (4) trial counsel asked for a verdict on "workplace bullying," the label established by Namie’s testimony results in unfair prejudice to Raess by confusing and misleading the jury as to the issue.

If needed, the court drove one more nail into the "bullying" claim by holding that the trial court erred in not giving an instruction proposed by Dr. Raess that there was no such cause of action as "bullying":

"Workplace bullying" is not an issue in this matter, nor is there any basis in the law for a claim of "workplace bullying."

In other words, you are not to determine whether or not the Defendant, Daniel Raess, was a "workplace bully." The issues are as I have instructed you: whether the Defendant assaulted the Plaintiff, Joseph Doescher on November 2, 2001, and whether that assault constituted intentional infliction of emotional distress.

It's not a total loss for plaintiff however, as the case is sent back for retrial. If that happens, no doubt there will be less "bullying talk" and my guess, no Dr. Namie.

The case is of more than passing interest to me as I am going to be speaking on the topic, Bullying In the Workplace: The Newest Litigation Threat? at the SHRM National Conference in Las Vegas this June.

Update: On 4/8/08 the Indiana Supreme Court reversed this decision and reinstated the trial court's judgment against the surgeon. See, Bullying Indiana Style Makes a (Limited) Comeback.

Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."

Check out the story in the next issue of the American Medical News, Bully case verdict a warning to doctors ... , which gave me considerable pause when a reader who has apparently followed my campaign against the bullying cause of action was kind enough to send it to me last night. You can see some of my earlier posts about a bullying cause of action here, here and here, where more than a year ago I noted "employers will rue the day that either the legislature or judiciary start down this broad and ill defined path."

But at least according to the lead paragraph of the AMN story we appear closer to the top of that slippery slope:

When a jury recently ordered an Indiana heart surgeon to pay $325,000 to a hospital employee on a claim of "workplace bullying," experts who have studied the subject said it was a significant decision in a growing, yet murky, area of law.

Basically, heart surgeon, Dr. Daniel H. Raess, apparently yelled at a perfusionist, (the professional who operates the heart/lung machine), John E. Doescher, one time too many. What Dr. Raess's attorneys would ultimately describe as "nothing more than a shouting match between two adults," where "both men were giving as good as they got" according to a story in the Indianapolis Star, ended up in a lawsuit in Marion County, Indiana.

Curious as to exactly how the Indiana courts managed to become the first state to adopt the new cause of action of "bullying," I was mollified with a little googling, to find that it had not done so, instead it was the standard (albeit not a favorite of mine) cause of action, intentional infliction of emotional distress. See the report of the jury verdict at morelaw.com.

For more on the details of the trial check out the Indianapolis Star post-trial story. Although a verdict for the plaintiff, the jury was not as incensed as it could have been, refusing to award punitive damages. Some of plaintiff's counsel's final argument actually gave a motive rooted in a more traditional claim, whistleblowing:

During his final argument, [plaintiff's attorney] described Raess as a domineering manager who viewed himself as untouchable and wanted to put Doescher in his place when the perfusionist threatened to tell hospital administrators that Raess had verbally abused other members of his staff. "It's not abuse, according to him, to yell and scream and cuss at somebody," Betz said of Raess. "He was on his throne over there."

Still, the importance of this case should not be overlooked for what it is -- a real triumph for the "anti-bullying" forces, which have managed to make this case somewhat of a cause celebre for their budding movement.

First, counsel for Doescher utilized the bullying terminology in describing his case:

This is the story of the ruination of a 17-year career of a perfusionist by Dr. Raess because of a workplace bullying incident," said Kevin Betz, Doescher's attorney.

It also marked the first time that Dr. Gary Namie, the founder of the Workplace Bullying and Trauma Institute, has been allowed to testify in court on his specialty. Not too surprisingly, according to the Star, in Dr. Namie's view:

The case is a clear-cut example of the phenomenon [of workplace bullying]. I concluded based on what I read and heard, Dan Raess is a workplace abuser.

And Dr. Namie not only testified, but was spinning the story to the Indianapolis Star, post-trial, emphasizing his particular cause, claiming, "this is the first time a workplace bullying case has been heard in the United States." The story also notes that laws to make workplace bullying illegal have been introduced in both the Washington and Hawaii legislatures, which of course has been heartily supported by his organization.

Interestingly according to their website, Dr. Namie came to the cause when:

Life for Gary changed in 1996 when his wife -- Dr. Ruth, with her doctorate in clinical psychology -- was trampled by a horrific woman boss. The couple's subsequent fight for justice led to their 1998 founding of the Campaign Against Workplace Bullying, bringing the international adult anti-bullying movement to America.

And the media likes the story, see "Workplace Bullying in the Public Eye" at Dr. Namie's Work Doctor website. For example, the Star followed their trial reporting with a discussion piece on March 20th, Workplace bullies more than mean, Mistreatment on the job on the rise experts say. The first expert noted for that proposition was from none other than the Workplace Bullying and Trauma Institute:

People finally realize what they've been going through has a name," said Natalie Nissen with the Workplace Bullying & Trauma Institute in Bellingham, Wash. "They call and say, 'Oh. That's me. I've been bullied.' We are constantly noticing an increase in the number of calls we get."

Although the Star article does note, "no hard statistics exist to confirm workplace bullying is, in fact, on the rise", that does not preclude the reporter from from saying in the next sentence, "most counselors and psychologists say the phenomenon is explosive."

And now, those like me who practice on the employer side of the docket, are adding to the publicity (including of course this post itself), for example see a report from a leading Indianapolis law firm which notes "a new trend appears to be emerging," which it bases on "the popularity of workplace bullying legislation combined with the jury verdict in the Doescher case," all of which according to the article "suggest[s] that employers must brace themselves for the emergence of a new potential risk of liability." That frankly seems a little overblown since none of the legislation has passed and the Doescher case is a trial court verdict using a traditional cause of action that is being spun to be the bullying case break through.

But, there is no question, that the anti-bullying forces have been successful enough to semantically change the debate, in this one instance from the rather clinical sounding "intentional infliction of emotional distress" to "bullying in the workplace" which may more easily connect with the hearts and minds of jurors, and thus potentially the pocket books of employers. I think we are a few steps closer to that slippery slope.

UPDATE: The case was reversed and remanded for retrial by the Indiana Court of Appeals on December 8, 2006. See First "Bullying" Case Goes Down in Flames .

2nd UPDATE: On 4/8/08, the Indiana Supreme Court reversed the decision of the Indiana Court of Appeals and reinstated the trial court judgment against the surgeon. See, Bullying Indiana Style Makes a (Limited) Comeback.

Washington, Massachusetts, Oklahoma, California -- Bullying Legislation Headed Your Way: Wait a Minute, Oklahoma?

The bullybusters are back, with their reborn website:

Tuesday, December 14th, 2004: Welcome to the reborn Bullybusters website! We began the Campaign Against Workplace Bullying in 1997. Since then, we've helped over 4,300 individuals Bullied at Work. We've conducted three waves of systematic research and published two books. In addition, the first U.S. Anti-Bullying Legislation was proposed because thanks to our network of Bullybusters!

And according to the website, they hope to offer legislation in Washington, Massachusetts, Oklahoma, California. Three of those I can understand, but Oklahoma? Regular readers will know I have been keeping an eye on the advancement of arguments for a bullying cause of action, which already exists in Europe. I happened on the revised website, courtesy of a story in the Seattle Times, Bullying at work gains visibility which appears to be sourced by the Workplace Bullying and Trauma Worksite, a group apparently created by Drs. Gary and Ruth Namie, whose bios can be found at another of their websites, the Work Doctor.com.



I must admit to being somewhat skeptical about 'research' such as the 2003 Workplace Bullying and Trauma Institute Report on the Abusive Worksite that is self described as follows:

Source: Data were gathered in 2003 from anonymous and confidential online surveys posted at this website -- bullyinginstitute.org. A "nonscientific" sample of 1,000 volunteer respondents (a respondent is one who completes the survey) who visited the website seeking solutions to their vexing problems at work attributed to a directly experienced cruelty from one or more persons. The research was necessarily done from the perspective of targeted individuals. Participants had the option of completing all or some of the 22-section survey.

I am even more skeptical of the benefit of unleashing the American legal system on something as ill defined as "bullying."

Bullying Award Cut, But £630,000 Still In Play

Cantor Fitzgerald is £116,000 better off following its appeal of an award to a former employee who claimed he was subjected to a “culture of bullying and abuse”. The Scotsman website has the report, Cantor Fitzgerald Wins Damages Award Cut. I reported on the initial award here more than a year ago. With a conceded £75,000 offset for amounts earned at his new employer, so far Cantor Fitzgerald is only out £41,667. However, £630,000 is still at stake and has been referred back to the lower court for further articulation of its rationale based on the evidence already taken. Although it is not clear, it appears that amount is related more to a bonus that was not paid than damages arising from the bullying conduct. Although not totally clear, it appears that the award just for the bullying conduct, after the reduction by the appellate tribunal, was £116,000, still a fairly substantial amount of coin for 6 months abuse.

Bullying Is On Its Way

As a cause of action that is. My one person campaign to keep track of the bullying cause of action's trek across the American legal landscape, spotted this article from that monitor (and influencer) of American thought, USA Today. The article: Workplace problems include bullying. The reason for the story was a study presented at last week's meeting of the National Institute for Occupational Safety and Health at the American Psychological Association meeting in Honolulu. Well at least it wasn't on the mainland .... yet!



More seriously, the NIOSH press release on the study had the definition of bullying that was used for the study, "repeated intimidation, slandering, social isolation, or humiliation by one or more persons against another." It also revealed that most incidents of bullying appear to be peer to peer, not supervisor to employee as most would have guessed.



But more to my point, the more "bullying" is studied, talked about and seen ultimately to be a "workplace problem," the closer to a bullying cause of action we march. No one thinks any employee should be "bullied" but we all should be aware this is very slippery slope we appear to be beginning to traverse.