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Saturday, November 16, 2013

BullyGate Already Costly

 By Tommy Eden

 The Miami Dolphins suspended left tackle Richie Incognito after it was claimed he had bullied teammate and left guard Jonathan Martin so severely that Martin left the team. Some reports state that the Dolphin coaches asked Incognito “to toughen up Martin.”

The alleged bullying included threats and racial slurs, malicious physical attacks by teammates and daily vulgar comments including crude comments about Martin’s sister. In one text message of a voice message left by Incognito to Martin he used racially charged language and said to Martin "I'll kill you." Incognito has acknowledged leaving the message but said he is not racist.

Team owner Stephens Ross in an interview before the Monday night Dolphins Buccaneers NFL game said he was appalled by the language in the voice mail and anyone would be appalled. He plans to meet face to face with Martin shortly.

To highlight the cost to the Miami Dolphins’ team morale cause by BullyGate, the Dolphins went on to lose to the Tampa Bay Buccaneers 22-19 on Monday night football. While the Miami Dolphins players promised to come out strengthened by their trials they came out flat giving the Buccaneers their first win of the season.

Former Dolphins Coach Don Shula and a host of former Dolphins all-stars have been assembled by Ross to investigate along with a NFL League investigator. The news media daily continues to dribble out leaks and leads under its hot media magnifying glass. All the while the plaintiffs bar appears to be circling the beached Dolphin brand.

Common Sense Counsel: Can workplace Bulling be costly. You decide. While bullying alone is not discrimination under federal or Alabama law, when combined with protected status (Martin is black), or intentionally directed towards an employee who has engaged in protected conduct, it can be a dangerous courtroom combination. Bullying can be verbal, physical and non-verbal. Below are abbreviated descriptions:

•       Verbal Bullying: using browbeating language or behavior, slandering, ridiculing or maligning a person or his/her family; spreading rumors or gossip regarding individuals; offensive name calling or nicknaming;
•        Physical Bullying: pushing; shoving; kicking; poking; tripping; assault, or threat of ...;
§       Non-verbal Bullying: non-verbal threatening gestures, looks or actions that convey threatening messages; purposefully singling out, ignoring, excluding ...

This media spectacle is a teachable moment and  should cause every employer in Alabama to take the following actions:
1.      update their Professional Conduct and Prohibition Against Harassment Policy to include anti-bullying language with an open door invitation prohibiting retaliation;
2.      train on the updated policy by bringing your policy to life with hypotheticals;
3.      nip it in the bud when you witness bullying and do not expect employees to work it out between themselves;
4.      promptly investigate when reported with a legally defensible paper trail;
5.      then take documented corrective and remedial action; and
6.      think about the potential detrimental economic, morale and legal effects of not maintaining a respectful workplace environment that is not all about respect.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at 334-246-2901. HR Blog at