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Workplace Bullying: Harassment Without a Protected Class

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There is currently no law, either at the federal or the state level, targeted to fight workplace bullying. Numerous bills have been drafted in state legislatures to address the problem, but nothing has yet made it through the legislative gauntlet to become law. Thus, the laws available to victims of bullying are the traditional protections against harassment and discrimination based on membership in some protected category. These categories are generally limited to innate characteristics, such as race, gender, national origin, disability, and age.

Many states, however, go beyond these essential categories of protection. A major addition for a number of states is the protection against discrimination based on sexual preference. This addition is significant, as so many of the highest-profile bullying cases have revolved around an individual’s sexual preference. A non-traditional sexual preference often seems to be the subject of ridicule in traditionally male-dominated work forces.

Indeed, one of the principal cases taught in employment discrimination classes is the case of Oncale v. Sundowner Offshore Svcs., Inc., 523 US 75 1998. The case involved a roustabout who was constantly the subject of ridicule, and the Supreme Court describes the conduct rather cryptically in the following passage: On several occasions, Oncale was forcibly subjected to sex- related, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape.

Oncale eventually quit asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” When asked at his deposition why he left Sundowner, Oncale stated: “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”

This case generally stands for the proposition that same-sex discrimination is legally actionable under Title VII of the Civil Rights Act of 1964, but even without the details of what was said, the 2014 reader can identify that Oncale was bullied by his co-workers. Although there is no specific allegation that Oncale’s sexual preference was the actual basis for the hostility, the character of
the activity was clearly highly sexualized and directed at issues of sex and sexual preference. Under modern state law in many states, the case probably could have been tried as a case of discrimination based on sexual preference.

Workplace Bullying

The case of Richie Incognito is very similar to the Oncale case. That is to say, it is a case of bullying, but one where the character of the bullying lends itself to protection under existing anti-discrimination law. In about 2012, when Jonathan Martin started his career as an offensive lineman with the NFL’s Miami Dolphins, the team’s coaches reportedly tasked Richie Incognito, a veteran NFL Lineman, with “toughening up” Martin. Incognito began by using sexually charged slurs in speaking with Martin, particularly those traditionally associated with females
or homosexuals. It later progressed to graphic threats about sexual acts with Martin’s sister. These threats continued into 2013, and Incogni to added racial slurs into the mix, while continuing to threaten Martin’s family. In one of the more publicized voicemails Incognito left for Martin, Incognito said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I’m going to] slap your f—ing mouth. [I’m going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

While clearly a case of intense bullying and hazing, this case may actually be a poor example of the type of bullying requiring special legal protections. This is a case that fits rather neatly into the quintessential framework for hostile work environment based on race and gender. The prima facie case for this cause of action typically requires four elements, which are addressed in turn below:

1. Employee Was Subjected to Unwelcome Conduct

This is usually an easy element to meet, and here, Martin’s eventual departure from the Miami Dolphins team is telling evidence that Incognito’s threats and slurs were not welcome. Martin seems to have tried to withstand Incognito’s comments and shrug them off as hazing, and Incognito might rely on that to undermine Martin’s case, but in the end it would difficult for anyone to argue that behavior such as Incognito’s was not unwelcome.

2. The Unwelcome Conduct Was Based on the Employee’s Protected Class (Sex or Race)

Here, because the conduct uses notorious racial slurs and sexual epithets, Incognito’s conduct is almost certainly related to Martin’s race, and perhaps also to his sex. Indeed, the sexual nature of some of the more homophobic slurs fit into the vein of the Oncale case discussed supra. Though the Oncale case carves out an exception for “horseplay,” and does not make every sexually charged comment into an actionable claim, Incognito’s conduct may still fit into the realm of unwelcome conduct based on sex, pending a more through review of the law on that matter in the relevant
jurisdiction.

4. Some Basis Exists for Imputing Liability to The Employer

This element often will be met by some action taken by the employer against the employee, such as a demotion or termination. While it is possible that the Dolphins management or coaching staff’s call to “toughen up” Martin could impute liability to the employer, just as telling is the Dolphins’ failure to maintain any policy forbidding this kind of hazing. The lack of any policy or procedure for players to use in dealing with such a situation could impute liability to the organization. Had the Dolphins maintained such a procedure, they might claim that Martin’s decision to leave the team without going through the formal procedure was unreasonable, and this would provide the Dolphins a defense against a hostile work environment claim.

Efforts at Reform

The above demonstrates how existing laws can be used to combat certain kinds of bullying in the workplace, namely those situations where the bullying centers on the employee’s innate characteristics such as race, national origin, gender, disability, or age. To the extent an employee is the victim of bullying that fits into this rubric, it is important for the employee to immediately
take advantage of company policies and procedures to investigate and ameliorate a hostile work environment, even if the employee does not have faith in the integrity of those procedures. Otherwise, the employer will claim the employee unreasonably failed to take steps to stop the harassment.

Many claims, however, will not fit into the traditional harassment framework. Perhaps owing to the hierarchical structures that exist in workplaces, employees often use work as a place to express their dominance over others. Even when the bully’s choice of victim is based on a reporting relationship (or whatever other arbitrary basis occurs to those with sociopathic tendencies) rather than an innate characteristic, the hostility is harmful to the working environment. Employees and employers each have a strong interest in promoting a healthier work environment in which employees
can feel comfortable and be more productive.

States have undertaken some legislative effort to stamp out workplace bullying, though nothing yet has become law. One of the more prominent proposals is the “Healthy Workplace Bill,” which would make actionable certain forms of abusive behavior at work without reference to the victim’s innate characteristics. Doubtless, the bill has not yet passed because of concern that widening
the availability of such claims could be burdensome to employers and do harm to the concept of at will employment. Employers can help ameliorate the problem by maintaining strong anti-harassment policies that go beyond the floor set by Congress in Title VII and related anti-discrimination statutes.

Conclusion

The Dolphins case is an excellent demonstration of how bullying, when allowed to go too far, can have severe impacts on any workplace, even one where toughness and camaraderie are core tenets
of the job. It is impossible to say whether Incognito had anything to do with the Dolphins’ mediocre 8-8 record in 2013, but it had to have been a distraction for the team in a sport where the margin of error is thin. Either way, it has harmed the Dolphins’ reputation, and put a swift end to the career of Jonathan Martin.

A more careful analysis of Incognito’s actions, however, also shows that the existing law does a lot to protect victims of some of the most prominent forms of bullying: those based on statutory protected classes of race, national origin, gender, age, and disability. Obviously, more can be done to protect employees, but employees and employers should not be neglectful of the arrows already in their quivers. As more prominent cases of bullying continue to make their way into the public consciousness the law may begin to shift. Case law is already starting to recognize more subtle forms of bullying discrimination, such as in a case of a bullied employee of Microsoft in Texas. (See Bullied Microsoft Employee Gave His “Heart and Soul” to the Company, Brenda Craig, Lawyers and Settlements.com, bit.ly/1nGbTnm), but creative and effective use of existing anti-discrimination  law will go a long way to fill the void in the meantime.

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