Changes in Employment Discrimination Law Could Be in the Works Following Indiana Case on Workplace Bullying

In 2008, a perfusionist at an Indiana Hospital sued a cardiovascular surgeon for workplace bullying and won an award of $325,000.  Although the surgeon appealed the ruling, the Indiana Supreme Court upheld the decision in this case (Raess v. Doescher). Part of the reason the Court found in favor of the plaintiff, no doubt, was the overt nature of the bullying in
this case. The Defendant was alleged to have sworn at the perfusionist; backed him into walls; and screamed at him in a beet red rage that boarded on actual physical assault.  Moreover, numerous witnesses attested to the surgeon’s outbursts, and there was a significant paper trail.

Will the decision in Raess v. Doescher drive Indiana or other states to adopt workplace bullying laws?  A recent Zogby survey found that more than a third of American workers report having been bullied at their jobs.  Yet out of the more than one dozen bills proposed to make workplace bullying illegal, to date, none has passed.

Several arguments have been made to stall anti-bullying legislation. These include:

1. The slippery slope argument–one person’s bullying may be another person’s gentle ribbing.  If bullying is made illegal, so this argument goes, we’ll see a rash of lawsuits that will choke productivity and glut the court systems.

2. The problem is overblown–sure, nearly 40% of Americans claim to have been “bullied” at work, but the vast majority of these cases have been minor and short lasting.

3. On the job bullying is a “rite of passage”–moderate hazing is a healthy ritual and could actually lead to solidarity.  Consider that recruits for the Armed Services, for instance, must go through basic training and deal with testing that borders on bullying–and that these exercises seem to make the Armed Forces stronger and more unified.

4. Employees already have enough protections–given that, if you are member of a so called “protected class,” you can already file suit for harassment or discrimination, there is no need for the introduction of yet another way potentially to sue employers.