Employer Harassment and the Miami Dolphins

According to an article this week in the Miami Herald, a lawsuit is likely in the bullying incident of Jonathan Martin by Richie Incognito. Furthermore, according to the article, it would be “open and shut.” Assuming Martin has enough evidence to support his allegation, the Herald is right.

Just to lay some background, Martin is alleging long-running abuse, including racial slurs, by Richie Incognito. The Dolphins’ management was informed, but the team’s GM Jeff Ireland simply responded that Martin should “punch Incognito in the face.” It has also been reported that the team’s coaches wanted Incognito to “toughen up” Martin. Putting aside the issue that the Dolphins’ GM is condoning (if not encouraging) workplace violence and, potentially, assault and battery, which are also torts and criminal misdemeanors, the US Supreme Court made clear, in the recent case of Vance v. Ball State Universitythat an employer is liable for harassing behavior by coworkers if the complainant can show that the employer was negligent, meaning that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Given Ireland’s response, the Dolphins clearly knew about the harassment and failed to take appropriate corrective action.

Incognito has long been considered one of the league’s dirtiest players, both on and off the field, but this has arguably worked more to his benefit than to his detriment, since he has more been viewed as tough and aggressive – qualities valued in a NFL lineman. I am often reminded of a scene in the 1997 film Prefontaine, where Steve Prefontaine is shown cheating on his girlfriend with an adoring coed. To what degree does praise and adulation of highly talented athletes, both youth and adult, lead to a willingness to excuse inappropriate behaviors and, as a result, enable and encourage such behaviors? Aggressive playing attitude is one thing, but crossing the line to the point that it incurs legal liability should not simply be viewed as an acceptable business risk or as a cost of doing business.

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