Fox News published an article about the ongoing Miami Dolphins scandal involving accusations of bullying and harassment by one offensive lineman, Jonathan Martin, against another, Richie Incognito. As an employment lawyer, the article is especially interesting to me because it provides a window into a workplace most people probably don't think of in terms of "workplaces" - an NFL locker room.
First, the article claims that the Dolphins general manager was not only aware of the alleged harassment, but had a particularly stereotypical suggestion for solving it:
A new report late Wednesday claims that Miami Dolphins General Manager Jeff Ireland was made aware of the alleged bullying involving offensive linemen Jonathan Martin and Richie Incognito, and suggested that Martin try to resolve the matter by confronting his teammate physically.
Ireland reportedly responded to Smith's complaint by telling him that Martin should stand up to Incognito physically and specifically suggested punching the latter man.
I say stereotypical because the NFL is perhaps the brightest beacon of American machismo. It's a tough, physical world where problems are solved by smashing into your opponent and driving him into the ground. Not only is that the nature of the game they play, but apparently how they feel workplace problems should be resolved. Legally speaking, this is probably not a good idea.
Martin is currently away from the team seeking emotional counseling, and the report says he has considered quitting football. Despite all of this, as well as his detailed complaints against Incognito, their teammates seem blindsided.
"The whole thing, it's kind of mind-blowing to me," quarterback Ryan Tannehill said. "It's kind of mind-blowing to most of the guys on our team right now."
"It's tough for me, because you can't help a situation that you didn't know existed -- that no one on this team knew existed," Tannehill said. "We have a bunch of good guys in this locker room. To be put in a situation where everyone's attacking the locker room saying it's such a bad place, such a bad culture, no leadership to stand up and stop the situation -- no one knew there was a situation to be stopped."
When I first read these paragraphs, I immediately suspected Tannehill was lying. How could he and his teammates not know about situations Martin has described in such detail? Situations that seem so severe?
Then I read further:
Guard John Jerry said he never heard Incognito use the racist term included in one voicemail and wouldn't have objected anyway.
"I would have just laughed it off," Jerry said. "I know the type of person he is, and I know he doesn't mean it that way. Everybody's got friends that when you're out, they say those type of things. It's never made a big deal."
It's not unusual for those not the target of bullying to not understand when the victim speaks up. What may seem like friendly ribbing from one guy to another can seem completely different to the person actually on the receiving end. It's easy to dismiss alleged harassment when you're not the target of it.
The law specifically prohibits the alleged behavior Martin has described in his complaints about Incognito. In the case of Harris v. Forklift Systems, the U.S. Supreme Court articulated the following rule:
"When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated."
As for determining whether behavior is "sufficiently severe or pervasive," courts turn to "the reasonable person standard," which is considered "objective." A reasonable person (either imaginary or sitting in a jury box) must find the workplace behavior hostile or abusive for a court to rule that hostile work environment prohibitions have been violated.
I would suggest that the Miami Dolphins players now claiming to have been ignorant of the allegedly abusive behavior of Incognito toward Martin would not qualify as "reasonable persons." NFL players, exposed to many years of locker room culture -- a highly-charged, sexually and physically aggressive environment -- may not be the best judges of what actually constitutes hostile and abusive conditions for the purposes of Title VII or other employment laws. I mean no insult to them, of course, but they likely lack the kind of objectivity necessary for a case like Martin's.
At any rate, if there's only one lesson we can all learn from this incident, it's that telling your employees to resolve their differences by fist fighting is not a great management strategy.
