Last month we addressed the employment law issues involving the Miami Dolphins workplace harassment matter surrounding Richie Incognito and Jonathan Martin (http://tarantinolaw.com/?p=4201) which appeared as guest column in The Buffalo Law Journal (http://www.bizjournals.com/buffalo/blog/buffalo-law-journal/2013/12/no-room-for-hostility-in-modern.html?iana=ind_legal). Last night on "NBC Nightly News" we finally were able to hear from Jonathan Martin, the alleged victim of the harassment, who was interviewed by Tony Dungy, a former NFL coach and current NBC commentator. Martin left the team mid-season in October and Incognito was suspended for the last 8 games of the season. Although their interview was brief in length, Martin made several legally significant statements.
Martin noted that the language was vulgar and racial. The racial comments are significant in assessing whether he was exposed to a racially hostile work environment. As we noted in our prior column, the relevant question is whether the conduct was severe and pervasive. Specifically, how many incidents occurred over what period of time. Martin did not provide specifics as to this issue. He must also demonstrate that the conduct was unwanted. He addressed that issue when discussing the text messages that he exchanged with Incognito and stated that, "I was trying with all my being to do whatever I could to be a part of his culture." That excuse may not be sufficient to demonstrate the conduct was unwanted.
Martin explained that he left the team because he had to get away for his "own health." In essence, he could claim that although the Dolphins did not technically terminate him, he was constructively discharged, meaning that no reasonable person would continue to work in such an environment. As such, they in effect, terminated him by forcing him to leave.
Maybe most significantly, Martin explained that coaches knew he was struggling, but he never provided specifics to them because he did not want to be a "snitch." In addition, to possibly demonstrating that the conduct was not unwanted, that admission may insulate the Dolphins from vicarious liability for Incognito's conduct as they can argue that they were never made aware of it.
Finally, Martin indicated that he wants to return to the NFL. Thus, there may never be a legal case involving these issues. The NFL has hired New York Attorney Ted Wells to conduct an investigation which is expected to be released after the Super Bowl.