By Michael J. Volpe & Nicholas M. Reiter
Think your workplace has nothing in common with a National Football League locker room? Think again. The story of Jonathan Martin teaches a valuable lesson for all employers.
Martin, an offensive lineman for the Miami Dolphins, walked away from his job in late October 2013 after his teammate, Richie Incognito, allegedly bullied him on at least several occasions.
The allegations, whether or not true, are not pretty. Preliminary reports allege that Incognito, who is white, left a voicemail for Martin, who is biracial, which included a racial slur and sexually suggestive comments about Martin. Other allegations include Incognito forcing Martin to fork over nearly $15,000 to finance several Dolphins players’ trips to Las Vegas—a trip Martin was supposedly prohibited from attending. A recent report also alleges the Dolphins’ coaching staff instructed Incognito to “toughen up” Martin. After the allegations surfaced, the Dolphins suspended Incognito for “conduct detrimental to the team” and announced their cooperation with the NFL’s investigation of the incidents.
Now, however, the Dolphins have much more to worry about than the loss of two of their football players. Unless they reach an amicable agreement with Martin and his representatives, it’s quite possible the Dolphins will face one or more legal claims arising from Incognito’s alleged behavior.
Employers face legal claims associated with bullying because the conduct is often related to one or more legally protected characteristics, e.g., a bullying victim’s race, disability, religion, sexual orientation, etc. The potential causes of action which arise from bullying commonly include discrimination, harassment, retaliation, intentional infliction of emotional distress, defamation, assault, false imprisonment, negligent supervision and negligent hiring. Employees often assert these potential claims under common law theories and/or various federal and state employment statutes, including Title VII of the Civil Rights Act of 1964. Unfortunately for employers, in many cases, an employer’s lack of knowledge about the bullying is irrelevant because the employer may be held vicariously liable for its employee’s conduct.
In the recent case involving the Dolphins, Incognito allegedly made at least one comment related to Martin’s race and supposedly harassed Martin until he no longer felt comfortable in the workplace. If true, these allegations may permit Martin to assert a claim for “constructive discharge” under the theory that a reasonable person in his position could not continue working within the Dolphins’ organization. The recent allegation that the Dolphins directed Incognito to “toughen up” Martin may further support other legal claims such as intentional infliction of emotional distress, harassment and negligent supervision, among others. Even if the Dolphins were unaware of Incognito’s alleged behavior, which may be the case, the organization could still face claims brought under theories of vicarious liability.
The media’s attention to Martin’s allegations sheds light on a common problem for many employers in the U.S. Zogby International’s 2010 study showed that 35 percent of American workers experienced bullying now or at some point in their careers. In 2012, the Society for Human Resource Management reported that 51 percent of the employers it surveyed had incidents of bullying in their workplaces. Employee-to-employee bullying can occur in various ways, including insults, the spreading of rumors, unwarranted criticism, exclusion from meetings or other workplace activities, exclusion from “off the clock” social gatherings, pranks, and unreasonable work demands among other things.
The cost to employers due to bullying is real. It’s no surprise studies show that bullied employees tend to be less productive than other workers. Other consequences include high employee turnover, excessive absenteeism and more frequent schedule change requests, all of which add to an employer’s human resources responsibilities and hurt efficiency. Additionally, employers often see their insurance premiums increase due to more workers’ compensation claims filed on behalf of the bullied employees.
For all of these reasons, employers can (and should) proactively protect themselves against the legal risks of workplace bullying. The first step for many employers is to craft an employment policy under which bullying is defined and expressly prohibited. This policy should include an easily understood reporting process for employees to assert internal complaints of bullying. Employers should also assure their employees, in writing, that retaliation for raising a complaint is also prohibited, that all complaints will be taken seriously, and that confidentiality will be maintained to the extent it does not interfere with the employer’s investigation.
Additional measures employers may take include conducting anti-bullying training sessions for their workforce, internal audits of bullying complaints and background checks for potential new hires who may have a history of workplace violence, harassment or other bullying behavior.
Michael J. Volpe is a partner in Venable LLP’s New York office and co-chairs the firm’s national labor & employment group. Nicholas M. Reiter is a labor & employment associate in the firm’s New York office.
Workplace-Bullying Laws on the Horizon?, SHRM Online Safety & Security, July 2013