Empowering the Bystander: Workplace Harassment and Bullying – Lessons from Richie Incognito and Jonathan Martin

by Hirschfeld Kraemer LLP
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After reading the Ted Wells investigation report of the Richie Incognito and Jonathan Martin matter, I had several reactions.  Most focused on Incognito’s reprehensible and vile bullying of Martin, primarily aided by his two teammates, Mike Pouncey and John Jerry.  After reflecting on the workplace environment that allowed such repeated atrocious conduct to occur, I wondered where were the other players when this was taking place.  There must have been “high character” players who heard the conduct and appreciated that it went far over the line of what would be tolerable teasing in the name of bonding.  Yet the Wells report does not identify teammates taking affirmative steps to stop the offensive behavior.  Some players interviewed were evidently wanting Martin to take action to defend himself.  However, for a complex set of reasons, Martin did not do so.At its core, the conduct among the Miami Dolphins offensive line was what we see in classic school bullying.  A powerful bully, at times aided by a few followers, preys upon a vulnerable target who does not object or push back with enough vehemence to stop the misconduct.  Likewise, the workplace bully or harasser shares many of the attributes of the classic school bully; that is, usually someone in power engages in inappropriate conduct directed at the target without power.

In the workplace, we have become very educated about an employer’s obligations to prevent workplace harassment.  In California, there is mandated supervisory training in sexual harassment prevention for employers with over 50 employees.  The training typically focuses on supervisory responsibility – what to do when someone complains about harassment.  However, one critically important theme for such training is that everyone has responsibility for ensuring the workplace is respectful and free of harassment or bullying.  Not just for those who manage people, but every individual employee, whether a manager or not, should treat everyone with respect and take responsibility for making sure the core value of respect is reflected throughout an organization.  Although not mandated by law, this theme reflects a best practices approach every organization should consider embracing.

One current thought among those dealing with school bullying, including the cyber bullying that can be as much or more destructive than physical bullying on the playground, is that the bystanders must be empowered to take action.  It is unrealistic to expect the bully to stop without intervention or the victim to stand up and demand the action must stop.  Those roles have been established by the very nature of the conduct.  Instead, the bystanders must say “Stop” to break the cycle.  Schools and anti-bullying groups are promoting programs that support such empowerment of the bystander to help stop the inappropriate conduct.

Our workplaces could use the same message.  We all have the responsibility to identify bullying or harassing conduct and take steps to stop the conduct.  Harassment prevention training should be provided to individual contributors, not just managers, and the message should be clear: If you witness inappropriate conduct directed at others, the organization wants you to come forward to provide notice so that immediate and appropriate corrective action can take place to stop the conduct.  For the same reasons that the school bystander or the Miami Dolphins teammate did not want to be involved (they do not want the misconduct to be directed at them or they are friends with the bully or harasser), the workplace bystander usually remains silent.  Our workplace training should identify this dilemma and encourage the workplace bystander to be empowered to take action and contribute to a more respectful environment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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