Locker Room Legal Risks: Lessons for All Employers

by Renee Mielnicki, Esq.

By now, most of us are familiar with the NFL scandal involving the Miami Dolphin’s right tackle, Jonathan Martin, and guard, Richie Incognito. If you aren’t, here’s a recap: Martin, a rookie, was forced to undergo somewhat of a ritualistic hazing at the hands of Incognito to “toughen him up” and “induct” him into the league. Martin had alleged he was verbally harassed on numerous occasions with racial epithets and threats on his life. Martin claimed that this conduct occurred on the field, in the locker room and through voice and text messages. The final straw for Martin was in October 2013 when he was shunned by other members of the Dolphin’s during a team meal. When that occurred, he walked out of the facility and reportedly checked himself into a hospital for mental treatment.

This highly publicized bullying scandal brought to light several issues.  First, before this happened, many people did not see NFL teams as employers.  But, as such, the Miami Dolphins are subject to Title VII of the Civil Rights Act which prohibits discrimination and harassment in the workplace based upon race, color, national origin, religion and sex.  Before Martin betrayed his fellow teammates by exposing their college fraternity antics, perhaps no one considered the legal dilemma that NFL hazing presented.  If Martin can prove that the Dolphin’s knew or should have known that he was subjected to racial and sexual harassment by Incognito, the Dolphin’s may be liable to him under Title VII for money damages.  Given that Martin’s contract with the Dolphin’s was reported to be worth about $5 million, his projected damages, if he won, could be much more than that.  Quite a large price to pay for such an unpleasant and childish tradition.

Second, this case raises awareness of the workplace bullying phenomenon.   Generally, workplace bullying is unwelcome or unreasonable behavior that demeans, intimidates or humiliates people either as individuals or as a group. Examples are abusive or offensive language, including being sworn at, and insults or personal attacks.  Unfortunately, workplace bullying that is not directed at a person’s race, color, national origin, religion, sex or any other legally protected class is not prohibited by any federal or state law.  Interestingly, many states have introduced bills to make this type of behavior at work illegal, but none have been passed or become law yet.

However, employers should still seek to tame the workplace bully, even if employees’ actions are not currently illegal.  Allowing your employees to treat their fellow employees in this manner creates a risk that a legal claim may still be squeezed into an existing law, such as Worker’s Compensation or Title VII.  Secondly, many studies have been conducted on the psychological effects of bullying and its tendency to decrease work productivity.  Studies have shown that employees subjected to this type of mistreatment are more likely to call off work sick, file Workers’ Compensation claims and even quit.  Martin was the extreme example.  He not only walked away from the NFL and his multimillion dollar contract, but he checked himself into mental health treatment after doing so. Employers should therefore seek to prevent this type of behavior by having a strong anti-bullying policy in their employee handbook that clearly communicates to staff what conduct is considered to be bullying, a statement that such behavior is strictly prohibited and that any violations of the policy will result in discipline. 

The Martin/Incognito scandal also illustrates the fine line between workplace bullying and illegal harassment under Title VII.  Individuals, like Incognito, who engage in this type of power seeking and aggressive behavior are more likely to cross the line into illegal harassment simply due to repetition in their behavior, adrenaline and loss of inhibition.   Once that line is crossed, employers may then become liable under Title VII.  Employers should therefore have strong, written policies in their employee handbooks that forbid illegal discrimination and harassment.  These policies act not only as a deterrent, but attempt to protect the employer if a lawsuit is actually filed.  Training should also be provided annually to employees to educate them as far as what type of conduct is illegal, and to remind them of the employer’s policies that prohibit such and the consequences for failing to adhere to them.

The last interesting take away from this story is the broad reach of Title VII’s arm in the workplace. Before Martin exposed the prison yard mentality in the NFL, most of us probably did not consider the NFL locker room a workplace, It may not be your average workplace, but a workplace it is, and Title VII does extend there. Moreover, if you think that your workplace is unlike the NFL’s, then think again. The average workplace is just like football. All employers must tackle bullying and harassment in the workplace by blocking the bullies with training and strong policies prohibiting disrespectful treatment of teammates. Otherwise, some of your own employees may end up scoring against you financially in the courtroom.

 

 

This entry was posted in Human Resources and tagged , , , , . Bookmark the permalink.