For the past week, our national news has been filled with reports about the decision by Miami Dolphin football player Jonathan Martin to leave the team as a result of hazing and harassment to which he was subjected by teammates, particularly Richie Incognito. The conduct described by Martin includes racial epithets and at least one physical attack. The story is remarkable in many respects, and has elicited both strong criticism and spirited defense of Incognito. From the standpoint of employment law, however, the story serves as a case study in a workplace run amok due to failures of management and ignorance of basic human resources principles.
Under both state and federal law, employers have duty to take reasonable steps to prevent discrimination and harassment in the workplace. The atmosphere among Dolphin players could reach the point that it did only if management (in the form of coaches and veteran players who function as leaders) failed to take such steps, either because they condoned Incognito’s behavior or were ignorant of it. Neither explanation of the situation reflects well on those in charge, of course. Comments made by other players in the wake of the controversy demonstrate the depth of the problem and the ingrained attitudes that enabled it to reach the stage that it did.
Many players have blamed Martin for the controversy, contending that he should have confronted Incognito, perhaps physically, if he was unhappy with Incognito’s behavior toward him. These comments ignore the fact that the duty to prevent harassment in the workplace generally lies with management, rather than with the victims of the harassing behavior. The fact that Jonathan Martin might be a 6’5”, 310 pound professional athlete does not relieve management of its duty to prevent harassment or mistreatment of employees. Employers cannot absolve themselves of potential liability for harassing behavior by blaming the victim for failing to rectify the problem himself (or herself).
Players have also tried to dismiss criticism of Incognito’s behavior by saying that such behavior is common, and even accepted, in the National Football League. If such behavior is indeed common and accepted on professional football teams, that fact merely indicates the extent of the problem; it does not excuse it. State and federal law prohibit harassment in the workplace. Specific industries and employers cannot avoid their responsibility under the law by saying (correctly or otherwise) that their culture is different from that of most employers. While democracy and majority rule may govern many aspects of our lives, they do not apply when it comes to harassment. Individual employers or work groups have no ability to decide that they will permit harassing behavior that is prohibited by law. The fact that such behavior may be common within an industry, or even accepted by most employees, is of no consequence. Rather than excusing Incognito’s actions, players who say that his behavior is common are merely revealing the depth of the problem that exists within the team or the league. Indeed, the depth of the problem is perhaps most evident in the feeling of many players that Martin, having been driven from the team by Incognito’s behavior, is not welcome to return, while Incognito would be accepted back from his current suspension.
For employers, the lessons of the Jonathan Martin case are simple and clear. All employers and their managers are responsible for taking reasonable steps to prevent discrimination and harassment in the workplace. No employers, including professional sports teams, are exempt from the law, and industry culture or practice does not excuse behavior that would be clearly unacceptable in most business settings. When harassment occurs, particularly on a widespread, ongoing basis, those who engage in the behavior, and management which is ignorant or tolerant of it, are to blame. An individual who does not invite harassing behavior directed toward him is not at fault for preventing it. And, finally, proper remedial action involves curtailing the harassing behavior and preventing retaliation, rather than banishing the victim from the organization.
Claims of harassment remain common, and the Jonathan Martin case, although unusual because it involves professional athletes, serves as a vivid reminder to employers of their duty to be diligent in preventing and correcting harassment in the workplace.