INCOGNITO PROFESSIONAL FOOTBALL INCIDENT REMINDS EMPLOYERS OF THE DANGERS OF WORKPLACE BULLYING

There has been a lot of national publicity given recently after a 300+ pound Miami Dolphin tackle left the team and filed grievances of player misconduct against a teammate, a 300+ pound guard. The facts in this situation are murky, but apparently the incident was part of a hazing culture involving newer team members, goading and other incidents that got increasingly more aggressive. Incognito allegedly sent his younger teammate text messages and left him voice mails that were threatening and racially charged.

In any event, the professional football team, the Miami Dolphins, has issued press releases indicating among other things in a response to allegations that the team fostered an unhealthy work environment, "We take this seriously."

Some reports indicate that bullying is widely present in the schools and workplaces, and that employees who are bullied have more absences, tend to take more leave, and have greater turnover. Such bad behavior affects co-workers in addition to the person being bullied. Further, other surveys indicate that most employees do not report such bullying, and if they do report it, little or nothing is done about it.

There are many reasons for the lack of action on the part of employers. Workplace bullying is hard to define or correct, and it is not currently illegal per se anywhere. Although many states have tried to pass anti-bullying laws, there are none currently in existence. Even the U.S. Supreme Court has noted in its sexual harassment cases that currently federal discrimination laws are not a "civility code."

A particular danger is that workplace bullying can easily become harassment that is currently prohibited by the discrimination laws, as the bullying apparently developed in the Incognito situation. There is a recent major jury verdict in which a disabled employee recovered almost one-half million dollars claiming that a store manager made his life miserable because of his disabilities and verbally bullied him. It is easy to see how a pattern of bullying could lead to claims of a hostile work environment based on race, sex, or some other protected category.

A 2010 study found that some 50% of employees in the U.S. had either experienced workplace bullying first-hand, or witnessed it. Some 62% of workplace bullies are males, and 38% are females, according to the study.

Opinions differ as to whether employers need special policies directed towards bullying, or instead may rely on rules that require employees to treat others with courtesy and respect. Such a policy could be broadly drafted as "Respect in the Workplace." In drafting such a policy, however, employers must be wary of chilling free speech or creating unfair labor practice issues under the Labor Act. A recent NLRB case, for example, litigated the issue whether a hospital lawfully discharged two nurses for exhibiting intimidating and bullying behavior to recently hired employees, and whether its conduct rules prohibiting, among other things, intimidation, profane and abusive language, rude and condescending behavior, and disruptive behavior are clear and narrow enough to avoid "chilling" protected free speech of union and other concerted activities. William Beaumont Hospital, 198 LRRM 1358 (ALJ, 1/30/14). Any such policies should provide clear channels for reporting incidences of bullying, much like the concepts outlined in employers' sexual harassment complaint procedures. Bullying complaints should be investigated similar to harassment claims, and remedial action taken when violations are found.