Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail 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.”

Martin had reportedly been the target of Incognito’s hazing for some time. It’s unclear whether the Dolphins knew about the conduct all along or first learned of it after Martin stormed out of the team facility last week. From the HR/employment law perspective, it doesn’t really matter. At this point, if you’re the Dolphins, you’re trying to limit your liability.

Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment on the basis of an employee’s gender, race, religion, or other protected classification. The test for a hostile environment is whether the complained-of conduct is severe and pervasive enough that it effectively alters the employee’s working conditions. Take another look at that voice mail and read the articles about the conduct Martin reportedly endured at the hands of Incognito and possibly others leading to his decision to walk out on his team.

With Incognito calling Martin a “half n—– piece of s—,”  the reports of systematic harassment, and Martin’s absence from the team, the Dolphins ran out of options with Incognito. An employer’s defense to coworker-on-coworker harassment is that upon learning of the conduct, it promptly investigated and took appropriate remedial measures. Whether or not the Dolphins knew about the Incognito-Martin dynamic earlier than last week, they knew all they needed to when they heard that voice mail.

There are other interesting legal and HR aspects to this story: bullying on the job and workplace violence; Martin’s potential causes of action against Incognito, the Dolphins, or the NFL;  jock culture. This blog may address those in future posts as the saga of Martin and Incognito unfolds.

The narrative of the pro football season has shifted. Roger Goodell was just getting his arms around head injuries. Now, he has to deal with hurt feelings. Welcome to the NFL!

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