Going Along To Get Along: Locker Room Bullying In the Workplace Going Along To Get Along: Locker Room Bullying In the Workplace

Going Along To Get Along: Locker Room Bullying In the Workplace

Recently, the Miami Dolphins found themselves in the national media spotlight when allegations arose that Richie Incognito, one of the Dolphins' players, subjected a teammate, Jonathan Martin, to such levels of harassment and intimidation that Martin abruptly left the team's practice, checked into a hospital for psychological treatment, and eventually left the team.
Martin claimed that the persistent bullying, harassment, and ridicule was simply too much for him to bear.  He complained of racial and homophobic slurs, as well as sexually explicit remarks about his female family members. While at first glance this case may appear as one that employers, sports fans, and casual observers alike might dismiss as "locker room bravado" or "boys being boys" and inapplicable to the typical workplace, the savvy employer will take heed of the lessons that can be gleaned from the Dolphins' situation.
According to the independent investigative report commissioned by the NFL, Martin and Incognito typically socialized together and communicated in a vulgar manner.  Both players admitted to off-color joking and verbal sparring, but employers should not be quick to dismiss such conduct as being consensual and evidence that no unwelcome conduct occurred.  As the NFL investigative report found, it is common for a victim of abusive treatment to participate in the abuse as an attempt to fit in, with the hope of reducing the offensive behavior.  Additionally, the report likened the Dolphins' locker-room abuse to a classic case of bullying.  It noted that just as a bully typically chooses a victim who is in a lesser position, has low self-esteem and is unlikely to push back, Incognito targeted Martin because he stood out as a newer player who had an upper-middle-class upbringing and intellectual interests.  Martin did not report the harassment because he feared being further disconnected from his teammates, instead blaming himself for being different.
Employers should view the Dolphins' situation as a reminder of the importance of maintaining harassment-free workplaces, even if the harassment is not specifically linked to a protected characteristic such as race, gender, age, or national origin. The off-color joking by Incognito and Martin is not unlike the "shop talk" common in many workplaces, which employers might unwisely brush off as being part of the culture or thinking that no one is getting hurt if all participate.  The Martin case emphasizes that participation in such joking does not always equal welcome or consensual behavior.  Just as Martin stood out from his teammates based on his background and interests, so too every workforce has individuals that stand out – often by a characteristic not protected by law, such as social awkwardness, height, or weight – that makes them a target for workplace harassment or bullying.  Don't get distracted by generalizations such as thinking that big, strong men (like Martin) can handle themselves and are immune from harassment.  While there is currently no state or federal law against workplace "bullying," an employer that fails to monitor its workplace and follow through on similar issues could see the affected employees suffer depression, stress and anxiety.  Not only could the employer face potential litigation and decreased productivity, but far more tragic results have been linked to workplace bullying, such as an increased risk of the victim committing suicide.   
The savvy employer will take a proactive approach, including reviewing and updating workplace conduct policies.  Those policies should ensure that in addition to prohibiting racial and sexual conduct (or those that directly involve a protected characteristic), any unwelcome comments that are harassing, degrading or threatening should be reported to management.  Bullied or harassed employees often blame themselves or fear reprisal, so employers should train and assure their employees that they will not tolerate any conduct that makes one feel harassed or threatened, even if the employee initially plays along or brushes it aside.  Investigate all complaints promptly and fully, and if concerning issues arise, involve legal counsel.  No employer wants its workplace to turn into a locker room, so it needs to make sure that management and employees alike are all working together to play on an even field.    
For more information, contact Justin Spack at (317) 236-2495 or justin.spack@icemiller.com, or any other member of Ice Miller's Labor and Employment Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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