The Super Bowl is over, but employers should still pay some attention to what is happening in the world of professional football and in particular at the Miami Dolphins. In the fall and winter of last year, the Dolphins received extra attention not because of their performance, but because second-year offensive lineman Jonathan Martin left the team, apparently after having been bullied by Richie Incognito, a veteran teammate and fellow offensive linesman. Although the Dolphins’ initial public response stated that allegations of “bullying” were “based on speculation,” soon after, a host of reports of unsavory behavior by Incognito emerged and the Dolphins suspended Incognito.
Martin eventually hired his own attorney and Incognito admitted leaving Martin a voicemail in which he used a racial slur and threatened Martin. Ultimately, the Dolphins appeared to have backtracked completely when their owner stated that he was “appalled” by the reported racist language and the team announced that it would make necessary changes to its policies. Scandal aside, the team did not benefit from losing two of its starting offensive linesmen.
On the one hand, Incognito’s supporters implied that Martin was weak. On the other hand, Martin’s supporters were outraged by the racist remarks made by Incognito and by reports that Incognito had sexually harassed a woman at a golf club only the previous year.
When allegations of workplace bullying surface, what are an employer’s responsibilities, and how can a business avoid appearing insensitive, being accused of flat-footedness, or losing key personnel in the face of the challenge? How can an employer distinguish between unnecessary bullying and a “tough” or “demanding” but positive workplace culture?
At this time, although laws in some other nations forbid workplace bullying, no United States state or federal law explicitly forbids the phenomenon. But as the responses to the reports of use of a racial slur by Incognito suggest, when bullying involves racially-based, sex-based, or disability-based harassment, epithets, or conduct, chances are that the bully has run afoul of existing American laws and standards. Bullying is especially likely to violate the law and constitute same-sex sexual harassment when the bully mistreats his male victim because he perceives the male victim to be insufficiently masculine. Employers therefore must respond to complaints and address problems in order to avoid liability under current laws.
Put differently, an employee may complain of “bullying,” but if the employer ignores the complaints and the employee seeks the assistance of an attorney, the attorney may well frame the claim as one of sexual or racial harassment. The prudent approach is for the employer to investigate, at least informally, any complaint, even a general one, so that the employer can determine whether a conflict or unpleasant situation potentially involves harassment or bullying based on protected class status. Existing law does make some bullying actionable, and employers must act accordingly. Additionally, employers need to take charges of bullying seriously in order to guard against Dolphins-style nonlegal troubles, such as losing key personnel or bad press.
Solving the problem starts with defining it. Various entities have proposed different definitions, but common elements of bullying include that the behavior is repeated and unreasonable, that it is intended or likely to intimidate or humiliate the victim, and that it has a negative effect (which may be purely psychological rather than physical) upon the victim. The intention to harm, combined with actual harm to a victim who is typically weaker than or different from others in the group, distinguishes bullying from acceptable but “tough” workplace culture. And just as with legally actionable sexual or racial harassment, behavior must be exceptionally severe for a single incident to qualify as bullying; typically, behavior must be repeated to be deemed bullying (or actionable harassment).
The Dolphins’ problem became a big one when the evidence seemed to suggest that (1) Incognito’s conduct was racially-based and (2) Incognito had repeatedly behaved badly, towards Martin and others. Additionally, many critics of Incognito’s reported conduct observed Martin’s status as a newer player and as someone who was perceived as “different” because he had graduated from college at Stanford.
Employers who seek to prevent and end workplace bullying should address the problem much as they address actionable racial or sexual harassment. In addition to investigating complaints, for example, employers can prevent workplace bullying by defining it for their personnel, and explaining that such behavior is contrary to company policy.
Using examples in defining acceptable and unacceptable behavior helps make the point—a training, for example, might contrast times when swearing might be permissible (the occasional use of an expletive in frustration) to occasions on which it is clearly a form of bullying an individual (swearing at one person in front of a group of onlookers).
As part of training, employers should emphasize bystander responsibility: If an employee sees a coworker being mistreated, the onlooker employee should not participate in or worsen the mistreatment, for example, by laughing at a cruel joke. The onlooker employee should also report what he has witnessed. In conducting such training, the employer should take pains to avoid in any way signaling that an onlooker is responsible for intervening and fixing the bullying problem—just as with sexual or racial harassment, the employer must take responsibility for addressing the problem.
Finally, just as conscientious employers establish processes for addressing complaints of legally actionable harassment, employers should establish a process for addressing bullying complaints and make sure that employees know that the process is available. The process need not be formal, but employees should be aware that it exists and that if they have complaints or have witnessed mistreatment, the employer wants to hear about it.
Banu Ramachandran is an attorney with Barran Liebman LLP where she specializes in Employment litigation and advice.
Contact her at 503-276-2193 or banu@barran.com.
