This Guest Column by Attorney Kevin P. Wicka appeared in the December 23, 2013 print edition of the Buffalo Law Journal and in the online edition on December 26, 2013 at http://www.bizjournals.com/buffalo/blog/buffalo-law-journal/2013/12/no-room-for-hostility-in-modern.html?iana=ind_legal
In recent weeks, there has been significant attention to the story that Miami Dolphins offensive lineman Richie Incognito bullied and racially harassed teammate Jonathan Martin to a point where he left the team. Understandably, a significant amount of attention from this story has been placed on the issue of bullying in sports. However, the Miami Dolphins are not only a sports team but an employer, and their locker room is a workplace. As such, the situation also raises several questions in employment law.
Racially hostile work environment
The Dolphins have an obligation to provide a racially hostile-free work environment. As such, Martin is entitled to federal protections under Title VII of the Civil Rights Act of 1964, as well as any other applicable state statutes. In order to demonstrate a racially hostile work environment, Martin would need to show that the conduct to which he was subjected was severe and pervasive and racially motivated. One of the questions courts will ask is how many incidents occurred over what period of time. There is no magic number of incidents that are required to meet the threshold for being severe and pervasive. However, even one incident, such as an assault, will suffice if it is significant enough.
In the Dolphins' story, it is alleged, among other things, that the n-word was used toward Martin. Courts have generally held that an isolated use of that word is not severe and pervasive enough so as to constitute a racially hostile work environment. However, that word used multiple times in conjunction with other conduct may meet the standard.
In addition, Martin would have to demonstrate that the conduct toward him was unwanted. This will certainly be an issue from the preliminary reports which indicate that Incognito has voicemails and texts from Martin which demonstrate that Martin engaged in similar banter with Incognito.
Are the Dolphins liable?
Assuming Martin can demonstrate that he was subjected to a racially hostile work environment, it does not automatically mean that the Dolphins are "vicariously liable" for the conduct of one of their employees. A key issue will be whether the Dolphins' coaches not only were aware of the conduct by Incognito but if they, as "supervisors," participated in the harassment, as some reports have alleged.
The question of whether the coaches engaged in harassment does not end the discussion as to whether the employer is liable. The type of harassment directed toward Martin, including whether it constituted adverse employment action (i.e. a termination, demotion, etc.), will determine whether there are additional defenses available to the Dolphins. This is where the question of Martin's exit from the team is key. If Martin is emotionally unable to return to the Dolphins, he may argue that he was "constructively discharged." In essence, he could claim that although the Dolphins did not technically terminate him, no reasonable person would continue to work in such an environment. As such, they, in effect, terminated him by forcing him to leave. If Martin was unable to establish that he was constructively discharged, he would need to demonstrate that he took advantage of avenues of complaint presumably put in place by the Dolphins and that the team failed to remedy the hostile work environment.
The timeline of events will certainly be critical here. When the story initially broke, the reports generally were of the Dolphins supporting Incognito until there was a release of a racially charged voicemail left by Incognito to Martin. Thereafter, Incognito was suspended by the Dolphins. The Dolphins may argue that they took corrective action, including by suspending Incognito. Martin presumably will argue that they knew about the conduct prior to the release of the voicemail and that they failed to correct it.
Is Richie Incognito liable?
Significantly, Incognito cannot be held individually liable under Title VII. He could potentially be held liable under Florida law if it is similar to New York's Human Rights Law. Incognito also could be potentially liable under an intentional tort (civil wrongs) theory. This could include a civil cause of action for assault or intentional infliction of emotional distress. Under New York law, that type of claim would require the employee to demonstrate that he or she was subjected to extreme and outrageous conduct which no reasonable person in a civilized society should be expected to endure.
Now that Martin has complained of racially discriminatory conduct, he has engaged in activity which is considered protected under anti-discrimination statutes. It would be unlawful for the Dolphins or other players to retaliate against him for having made those complaints. This issue bears watching as Martin is understandably concerned about how he would be received back in the Dolphins locker room after making these complaints.
How will it end?
This story is one that is complex and the final chapters have yet to be written. Many commentators have predicted Martin will never play again for the Dolphins. It would not be surprising if that is the case and there is a confidential settlement releasing the types of claims that are described above. This story continues to provide real-life lessons regarding not only in sports but in employment law, too.