Posting Holiday

Getting ready for vacation is time consuming and impacts negatively on posting as my recent (lack of) efforts have shown. However, now that I am actually on holiday, unless there is a rare combination of inspiration, energy and internet (highly unlikely), it will be May 4th when I return before there is likely to be any posts.

And then of course there is that post-vacation catchup which has a similar impact.

In the meantime, adieu.

Two Good Reminders: OFCCP and Testing

In the list of things to worry about, sometimes it's easy for certain acts or agencies to slip one's mind. If you are a government contractor and thus have duties under Executive Order 11246, one agency that should not slip too far away is the Office of Federal Contract Compliance Programs.

Generally, OFCCP brings to mind the need for affirmative action plans. But in reviewing those plans, the agency has far ranging powers to investigate discrimination. And the results can be substantial, witness last week's announcement of a million dollar plus discrimination settlement in the Dallas Business Journal. Vought Aircraft to pay $1.5M to settle discrimination suit.

A second point to remember. Agencies are giving increased attention to testing procedures utilized by employers. The money phrase from both the article and the OFCCP press release about the settlement:

The department concluded that two steps in Vought's hiring process - an application screening and a test - were primarily responsible for the discrimination.

It was not quite a year ago when the EEOC let it be known that it was also concerned with the impact of employer testing. See Using Any of These Type Tests? They Are on EEOC's Radar Screen

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.