Regardless of whether one is a Miami Dolphins or NFL fan, the recent investigation by the NFL regarding allegations of bullying involving Jonathan Martin may tell a precautionary tale for all employers. Briefly, Martin left the Dolphins in the middle of the 2013 NFL season, claiming that he had been a victim of bullying by teammates, including but not limited to text messages and other communications using the “N-word.” The alleged primary “bully’ (Richie Incognito) has been suspended by the Dolphins during the pendency of the investigation.
While efforts in Connecticut at passing legislation specifically prohibiting workplace bullying have been unsuccessful, employers should not be blasé about addressing such claims of inappropriate behavior in the workplace. For example, in the Martin matter, the alleged bullying involved racially charged and offensive language. If such alleged conduct was to occur in one’s workplace, such conduct would clearly have to be addressed via the employer’s requisite equal employment and anti-discrimination/anti-harassment policies; the failure to appropriately investigate and (if necessary) remediate will expose the employer to claims of violations of state and federal race discrimination laws, including claims of a “hostile work environment.” Indeed, where there is a link between the alleged bullying behavior and the alleged victim’s membership in a protected class (for example, race, gender, age, religion, disability status), bullying will lead to claims of discrimination or harassment, especially where such bullying creates a hostile work environment. In addition, the employer may face liability if the bullying is viewed as a response to an employee’s actions taken as a “whistleblower.”
While (in light of the above-mentioned inaction by the Connecticut legislature) there is no generic action for workplace bullying divorced of a connection to allegations of discrimination or harassment against a member of a protected class (or a whistleblower), the failure of an employer to respond to allegations of bullying or related workplace conduct may still lead to legal liability. For example, one could assert that the failure by an employer to respond to bullying in the workplace may constitute a tortious action, for example, constituting intentional infliction of emotional distress. In addition, bullying that leads to physical injury could lead to tort or workers’ compensation claims. Of course, not only the employer but also the alleged “bully” may be the subject of legal action; however, the employer will be viewed as the deeper pocket.
In this context, employers should ensure that all appropriate policies regarding employee conduct are implemented and enforced. Claims of bullying or related conduct should be investigated thoroughly and promptly, consistent with the employer’s policies. Indeed, it is worthwhile noting that there could be an obligation to investigate and remediate bullying and harassment even in the absence of formal complaint by an individual. Please note: of course, any investigation into misconduct must be accomplished in a way that protects the rights of both the alleged victim and the accused.