Jonathan Martin, an offensive tackle for the Miami Dolphins left the team in November and checked himself into a hospital for emotional injuries he claims he suffered at the hands of a teammate and fellow offensive lineman Richie Incognito and other team mates. The Dolphins spent time in crisis management mode and announced that Mr. Incognito will never play for the team again and it is also clear now that neither will Mr. Martin.
What was so compelling about the story is that Mr. Martin is not the typical victim of bullying. As a starting NFL lineman after a stellar career playing with Andrew Luck at Stanford, Mr. Martin was hardly someone with a weak physical or mental disposition. Whatever happened in that locker room apparently was pretty extreme. There really is no reason to doubt Martin’s intentions since he clearly has more to gain playing football for the Dolphins than bringing a lawsuit against them.
According to the Healthy Workplace Campaign, bullying in “its more severe forms triggers a host of stress-related health complications, such as hypertension, auto-immune disorders, depression, anxiety and post-traumatic stress disorder. The person’s immediate job and often career are disrupted.”
It is an interesting question whether Martin could successfully sue the Dolphins for his bullying. Such suit would amount to a hostile work environment claim. Given the present state of the law, it is doubtful such suit would be successful even if the bullying was extreme. In order to make out a claim for hostile work environment in Florida and other states that recognize the tort one has to establish that the victim was being bullied due to their being part of a protected class. In essence it’s a form of discrimination claim.
While Martin is African American and Incognito is white, there were apparently several other players involved. It would be difficult to succeed if any of the other participants were fellow African Americans. Further, the absolute number of African Americans in Miami’s locker room would be a significant challenge to establishing that Martin was a victim of discrimination due to his skin color.
Although Florida has a schoolyard anti-bullying law it has no workplace anti-bullying law. Notably, there are around 25 states that have considered workplace bullying legislation which would allow workers to sue for harassment without requiring a showing of discrimination. Some have argued that such laws are necessary since bullying does not by itself violate Title VII or any other anti-discrimination law.
To constitute a “hostile work environment” an employee must be subject to verbal or physical abuse related to various possible categories. Typically, these categories include race, religion, sex, national origin, age, or disability. In some jurisdictions, sexual orientation or marital status is a recognized class, but Florida does not appear to be one of them.
Here, while the situation remains unclear, Martin’s former high school coach seemed to shed light on the situation when he told the Palm Beach Post that Martin did not fit in the Dolphins locker room. Both his parents went to Harvard and he played at Stanford. His coach stated had never been “around Nebraska, LSU kind of guys.” It would seem that Martin’s high school coach seems to believe that Martin was bullied for being too smart – something that certainly will not qualify him as a protected class.
The lack of anti-bullying statutes around the country clearly reflects a hesitation to open new areas of litigation and the sense that it is inappropriate to legislate civility. The Martin case might provide a lens to evaluate what a meritorious workplace bullying claim might look like, and in doing so, help provide a guide to whether and where to draw a line between bad and unlawful behavior.