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Bullying and Harassment is Not a Joke On the Field or In the Office

Posted: 11/28/2013 5:13 pm

A common misconception, shared by many, is that bullies will target the weakest person. That's usually not the case. In fact, they target the strongest, most capable person because they perceive a threat. That's according to Canada's Safety Council.

And, if the target chosen by an adult bully is very capable and dedicated, combined with being well liked by co-workers -- that's a huge threat. Bullies are most likely to target people who cooperate and demonstrate a non-confrontative interpersonal style.

This could explain what happened in the Miami Dolphins locker room.

At 6'5, 312 pounds, some might expect Jonathan Martin, Offensive Lineman of the Miami Dolphins football team, to be well suited to tolerate the alleged intensive and racist harassment and bullying at the hands of his teammate, Richie Incognito.

However, earlier this month Martin checked himself into a hospital for emotional distress. This occurred after he sat down to eat with his teammates, and everyone at the table apparently stood up and walked away. Martin has also alleged that Incognito told him that he wanted to defecate in Martin's mouth, uttered ethnic slurs against Martin, threatened to slap Martin's mother across the face, and coerced Martin into handing over $15,000 for a trip to Las Vegas that Martin did not even attend. While Dolphin teammates may appear to chock this up to "locker room" mentality, where joking and hazing is permitted, the Canadian workplace would not.

Did Incognito feel threatened by Martin because of his stellar track record and all-around good guy personality?

If so, it could explain -- but not excuse -- Incognito's alleged bullying.

However, the football field is no different from the hockey arena, baseball diamond, or any other workplace: where there is workplace harassment and bullying, employers must take immediate steps to protect not only the person being harassed, but the other employees in the workplace. Otherwise, they leave themselves open to extraordinary damages of a punitive nature. In the last few years, punitive damages for failure to investigate workplace harassment or conducting a botched investigation have led to courts awarding hundreds of thousands of dollars against the organization.

The Miami Dolphins have suspended Incognito indefinitely. The Dolphins must also be commended for hiring a third party investigator, and pledging full cooperation to him. However, what about knowledge by management that offensive, racist behaviour was on-going and nonetheless allowing it to continue?

Management needs to be aware of how to prevent workplace bullying, and how to address it when it happens. It is imperative that employers educate the workplace as to what it is, and what to do if it is suspected. Employers must have policies and procedures in place in order to address it and they must act swiftly to ensure it is addressed and that all employees have a safe and healthy workplace.

What about the harasser? Well, employers must engage in a fair and thorough investigation before making any permanent decision. Even if the conclusion is that harassment did occur, that does not automatically justify summary dismissal. Determining whether just cause for dismissal exists is a two-step process: first, the employer must show that the employee engaged in misconduct and second, it must show that the employment relationship has been irreparably harmed.

The second step involves a "contextual approach" in which all relevant circumstances must be considered. In other words, one does not consider the misconduct in isolation. The punishment must fit the crime, bearing in mind all relevant factors. In many cases, courts will conclude that summary dismissal was a disproportionately harsh result and that some lesser form of discipline was more appropriate.

While employers must ensure the safety of their workers, whether they are line workers or linebackers, employers should never act too hastily with respect to discipline or dismissal. Otherwise, they will take the hit both on and off the field with extraordinary damages.

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