Outside the open heart surgery room of an Indiana hospital, Dr. Daniel Raess, a cardiovascular surgeon, raced toward Joseph Doescher with clenched fists, piercing eyes, a beet-red face and popping veins. Doescher, a perfusionist who operated heart/lung machines during Doescher's surgeries, backed up against a wall, believing, he later testified, “that he was going to smack the [expletive] out of me or do something.” Then Doescher says Raess stopped, turned and stormed past Doescher exclaiming, “You're finished. You're history.”

According to Doescher, Raess was angry because Doescher had complained to the hospital administration about the way Doescher treated other perfusionists. In fact, Doescher claimed at trial that Raess was a workplace bully.

In recent years, bosses who intimidate their subordinates by employing emotional or physical abuse, public humiliation or excessive criticism have inspired a movement dedicated to exposing and ending workplace bullying. But in the absence of state and federal laws banning workplace bullying, the issue hasn't generated lawsuits. That's why Doescher's case attracted the attention of employment attorneys.

Doescher won a $325,000 jury verdict on his assault claim in a 2005 trial that included expert testimony that Raess was a workplace bully. On appeal, the defendant objected to the expert witness and the trial judge's refusal to instruct the jury that there is no basis in law for a workplace bullying claim.

In April, the Indiana Supreme Court upheld the jury award in a 4-1 decision. In doing so, the high court opened the door for plaintiffs' attorneys to characterize abusive employers as “workplace bullies.” That and continuing efforts in several states to pass legislation outlawing workplace bullying has some defense attorneys warning of a future onslaught of litigation from employees who aren't members of a protected class.

“Not everybody can say, 'I know I was discriminated against because of race [or another protected category],'” says Brian LaFratta, a labor and employment lawyer at Fisher & Phillips. “But everybody can say 'I had a boss who was a jerk.'”

Disputed Witness
Based on Doescher's testimony, there is little doubt that Dr. Raess, a prominent heart surgeon at St. Francis Hospital in Beech Grove, Ind., was a jerk. Doescher is not a member of a protected class who could link a supervisor's bad behavior to discrimination outlawed under Title VII. So he claimed intentional infliction of emotional distress and assault–difficult claims for an employee to prove.

To buttress his case, Doescher's attorneys enlisted Dr. Gary Namie, co-founder of the Workplace Bullying Institute, which conducts research and lobbies for workplace bullying laws. Namie, a psychologist, testified that the confrontation between Doescher and Raess was “an episode of workplace bullying” and characterized the defendant as “a workplace abuser.”

The jury believed that Raess' behavior in the hallway incident constituted assault. But they found for the defendant on the charge of intentional infliction of emotional distress. Raess' appeal centered on whether the jury's award on the assault claim had been unfairly influenced by the workplace bullying testimony.

In overturning the jury award, the Indiana Court of Appeals found that the value of Namie's testimony was substantially outweighed by the danger of unfair prejudice to the defendant. It also found a reversible error in the trial judge's refusal to instruct the jury that workplace bullying was not a cause of action.

Pandora's Box
But the Indiana Supreme Court reinstated the damages award. Dismissing the objection to Namie's testimony on procedural grounds, the court said defense counsel did not properly object to the testimony during the trial.

“The significance of the case is lessened because it was decided not so much on the merits as on the Indiana Rules of Evidence,” says Michael Padgett, a partner at Jackson Lewis. “They decided it around the edges, rather than addressing the issue head-on.”

But the high court may have opened Pandora's box with its comments on the second issue of whether the trial judge erred by refusing to read the defendant's proposed jury instruction: “'Workplace bullying' is not an issue in this matter, nor is there any basis in the law for a claim of 'workplace bullying.'”

In wording that may provide fodder for plaintiffs' attorneys, the high court wrote that because the general behavior of the defendant was a relevant 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.”

“Now that the Indiana Supreme Court has approved the use of the label workplace bully, I'm sure employees' counsel will use it in these kinds of assault cases,” says Christopher Murray, a labor and employment lawyer at Ogletree Deakins.

Legislative Threat
Potentially more threatening to employers than the Indiana ruling are efforts to make workplace bullying a violation of state law. Such bills have been introduced in 13 states, but none has passed, although Hawaii passed a bill recommending that employers adopt an anti-bullying policy. In New York, a revised bill was introduced in March.

LaFratta points out that most current employment disputes have to go through the EEOC or a state agency before going to court. The plaintiff has to tie the claim to a protected category, and claims are limited to significant employment actions or ongoing harassment. Legislation on workplace bullying could enable an employee to take the employer to court much more quickly and open the doors to a much wider variety of claims.

“This kind of legislation takes a whole realm of bad behavior that before no one could sue over and makes it actionable,” LaFratta says. “I could see this opening up the floodgates of employment litigation.”

One of the dilemmas faced by the drafters of such legislation is defining what constitutes a workplace bully, as opposed to just a tough boss. What one worker may find emotionally devastating may not seriously bother a co-worker.

“There is a fine continuum between conduct so bad we should be restricting it and conduct that is just an incidental explosion,” says Garry Mathiason, vice chair of Littler Mendelson. Mathiason is adamantly opposed to government trying to draw the line.

The best way to forestall such legislation may be for employers to incorporate civility rules in their employment policies, much as the legal profession has rules of civility governing behavior in the courtroom, Mathiason says.

“It would be a horrible mistake if such legislation is passed,” he says. “But a policy adopted by a company makes sense, and I predict it will become a standard policy at most corporations.”