HR Lessons From the Miami Dolphins Bullying Scandal

When we think about bullying, we typically conjure up images of kids on the school playground or hallways. But a high-profile act of adult-size bullying this week thrust the issue into the national conversation. And the story carries several lessons for HR.

What happened? Last month, Jonathan Martin, a rookie offensive lineman for the Miami Dolphins, mysteriously walked away from the team for “personal reasons.” This week, the news broke that he did so because a teammate, Richie Incognito, allegedly bullied him mercilessly on several occasions. It’s alleged that Incognito, who is white, left a voicemail for Martin, who is bi-racial, which included a racial slur and threats of violence. Incognito apparently also forced Martin to pay nearly $15,000 to finance several Dolphins players’ trips to Vegas. Apparently, Incognito says he did this because coaches told him to “toughen up” Martin. Now the NFL is investigating, and lawsuits, no doubt, will be flying like the winter snow.

What’s this mean for HR? A Zogby survey reports that a shocking 35% of American workers say they’ve experienced bullying at some point in their careers.

While legislation is in the works, no current federal or state laws specifically prohibit bullying in the workplace. In the absence of a specific statute, employees seek redress under various common-law causes of action, including intentional infliction of emotional distress and negligent hiring or retention. Employees have also filed claims under Title VII and other discrimination statutes, claiming that the alleged workplace bullying was due to their status as a member of a protected class.

For years, legal and HR professionals have been preaching that em­­ployers should have a policy that makes it clear that bullying will not be tolerated. Despite this, an estimated 62% of employers lack such a policy.

8 steps to a strong anti-bullying policy

As we wrote in a recent issue of The HR Specialist, an anti-bullying policy should include all of the following to be effective:

1. A clear definition of prohibited abusive or “bullying” behaviors. Many employers have simply chosen to adopt the definition set forth in the leading anti-bullying model legislation, the Healthy Workplace Bill (HWB). For example, the definition of “abusive conduct” in Maine’s version of the HWB, the most recent state to propose anti-bullying legislation, is as follows:

“Acts or omissions or both that a reasonable person would find abusive, based on their severity, nature or frequency. ‘Abusive conduct’ includes, but is not limited to: repeated verbal abuse involving the use of derogatory remarks insults and epithets; verbal, non-verbal or physical conduct of a threatening, intimidating or humiliating nature; and the sabotaging or undermining of an employee’s work performance. A single act or omission does not constitute abusive conduct, unless so severe and egregious that a reasonable person would find it abusive.”

2. Examples of prohibited abusive behavior. Some of the more common complaints of abusive behavior received by employers include: constant singling out of an employee; abusive and offensive language; unreasonable criticism; deliberate exclusion from work-related activities; spreading rumors and innuendo, trivializing achievements and/or taking credit for another person’s work and achievements; affording an employee the “silent treatment”; practical jokes; and excessive demands and supervision.

3. A complaint procedure that requires employees experiencing or witnessing abusive behavior to promptly report it. The policy must designate at least two persons to whom complaints should be made under the policy, in the event one of the designated employees is the alleged bully.

4. An investigation procedure that provides a prompt, thorough and impartial investigation.

5. Assurance that employees who make complaints or participate in an investigation will be protected against retaliation.

6. Assurance that the employer will take immediate and appropriate corrective action when an investigation determines that a violation of the policy has occurred.

7. Routine training for all em­­ployees on the policy.

8. Routine and uniform enforcement of the policy. Indeed, it is often said that the only thing worse than not having a policy is having a policy and not enforcing it!

Finally, an anti-bullying policy can either be a stand-alone policy, or may be incorporated into a larger, more extensive anti-harassment/anti-discrimination policy. It may, however, be preferable to include it as part of a larger anti-harassment/discrimination policy, in the event the alleged offending conduct arguably violates the other policies as well.