Richie Incognito Case Demonstrates Importance of Workplace Anti-Bullying Policies

The Miami Dolphins are one of South Florida’s most high-profile employers, and they’re currently dealing with an employment dispute that’s made international headlines. For Florida retailers, it’s providing an important lesson in the boundaries of acceptable workplace conduct.

On November 3, the Dolphins indefinitely suspended player Richie Incognito for “conduct detrimental to the team.” The day before, ESPN reported Incognito had allegedly bullied a fellow player, Jonathan Martin. Over the past week, there have been numerous rumors and reports about Incognito’s actions. Some reports even say Dolphins coaches directed Incognito’s behavior as part of an effort to “toughen up” Martin.

Incognito has denied any wrongdoing. Given the media attention, the Dolphins asked National Football League Commissioner Roger Goodell to intervene. On November 6, Goodell hired New York attorney Ted Wells to conduct an independent investigation. Wells previously looked into alleged misconduct by the management of the National Basketball Players Association; his report led to the dismissal of the union’s executive director.


Locker Room Hazing or Civil Rights Violation?

But the Dolphins situation may not stay within the NFL’s house. Martin has retained counsel and there’s been reports of a possible lawsuit against the team. Mike Florio, a former attorney who now reports on the NFL for NBC Sports, said Martin could file a federal civil rights lawsuit based on claims Incognito, who is Caucasian, made racist insults towards Martin, an African-American: “The theory would be that Richie Incognito’s alleged harassment created a hostile work environment against Martin based on his race or other legally protected characteristics.”

Florio noted that while the NFL and its players union have a collective bargaining agreement that authorizes Commissioner Goodell to arbitrate many employment disputes, there is no express waiver of any player’s rights under federal or state civil rights laws. That means Martin could potentially sue the Dolphins under Florida’s Human Rights Act.


Dealing With Workplace Bullying

Not every disagreement among employees rises to the level of a federal case. But federal law does prohibit employers from maintaining a “hostile work environment.” As the Eleventh Circuit Court of Appeals, which has jurisdiction over federal courts in Florida, noted in a 2012 case, judges generally look at four factors in determining whether a hostile work environment exists: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”

In the Dolphins case, Martin left the team altogether, apparently due to his inability to deal with Incognito’s bullying. That speaks to the fourth factor. His attorney has also discussed the other factors with the press, accusing Incognito of harassing his client for well over a year with conduct ranging from extortion to physical threats against Martin’s family members.

Some football pundits have defended Incognito, arguing a locker room is not a normal workplace like an office or retail store. But the law doesn’t see it that way. A workplace is a workplace, and all employers must ensure their employees are able to perform their jobs free of bullying, harassment or other coercive behavior. It’s important for all employers to develop and maintain policies to deal with allegation of workplace bullying. Contact Florida business attorney John S. Sarrett if you have any questions.


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