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Football Imitates Employment Law

11.11.13

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As a big football fan and an employment lawyer, it is not often that the two overlap.  For the past few weeks, however, I have been listening to news and sports programs alike discuss the issues affecting the Miami Dolphins and accusations of bullying. The focus of much of the discussion has been on bullying and hazing in the NFL.  But, that really misses the bigger picture – these issues are no different from claims of harassment in any workplace – they are just highlighted because they allegedly occurred on professional sports team.  While it is easy to ignore locker room issues as atypical to a workplace, that locker room is still a workplace.  If an HR professional or employment lawyer heard these facts – employer knowledge of sexually offensive conduct at a work sponsored charity event (that lead to the employer’s apology) and subsequent promotion of that employee to a leadership role, we would be concerned about the claim that followed.  If that claim involved threats, racial epithets and other forms of bullying, we might cringe. 

It is not yet clear what the Miami Dolphins knew of hazing and bullying but they were aware of sexually offensive conduct and still promoted the employee to their leadership council.  Of course, bullying, in and of itself, is not a legally recognizable claim.  To be legally actionable, these claims would have to rise to harassment on the basis of race or sex, etc.  But, the promotion following offensive conduct does create an environment in which employees perceive that inappropriate conduct is accepted and that complaints are not warranted.  Instead, employers should not ignore warning signs and should carefully consider whether it is appropriate to promote a person so closely on the heels of such offensive conduct. 

HR professionals and employment attorneys should consider these issues carefully.  Remember that anything that impedes productivity is not good for business.  Perhaps a formal investigation is not warranted but HR should meet with the concerned party, hear the concerns and discuss potential options.  Some issues learned may require more formal responses, like learning about racially charged communications, but others may just require some advice and counsel.  Another HR idea is to offer training on bullying and related issues.  Too often, we may be quick to dismiss something that we do not believe subjects the organization to liability.  We also need to look at the whole picture: is the individual involved targeting only women or only men?  Those facts have led to liability under Title VII for some employers. 

We will see some legislation involving workplace bullying.  New York has proposed the Healthy Workplace Bill and other states have considered it as well.  The proposed legislation defines an “abusive work environment” and requires proof of health harm.  Abusive conduct is defined as conduct, with malice taken against an employee by an employer or another employee in the workplace, that a reasonable person would find to be hostile, offensive and unrelated to the employer’s legitimate business interests.  The trier of fact would consider the severity, nature and frequency of the conduct.  Employers would be insulated from liability when they have internal correction and prevention mechanism are in effect.  Individuals could sue the bully for violations. 

These issues give us food for thought while we cheer for our favorite team.

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