There is no crying in football, but is there harassment?

The Miami Dolphins, a National Football League (NFL) franchise, faces this question in the wake of a highly-publicized bullying scandal involving the Dolphins’ 24-year-old right tackle, Jonathan Martin, who abruptly left the team last month. Martin has alleged that he received obscene voice and text messages from his teammate, Dolphins guard, Richie Incognito. In a recorded voice mail message, which was released to the public, Incognito is heard using a racial epithet, making offensive comments about Martin’s mother, and threatening Martin’s life.

The Dolphins indefinitely suspended Incognito in connection with Martin’s claims that Incognito harassed and bullied him. Martin also alleges that Incognito forced him to contribute $15,000 to finance a trip to Las Vegas for a group of players, despite Martin’s preference not to travel with the group. The Dolphins coaching staff has also been implicated in the matter. Martin alleges that coaches asked Incognito to help bring Martin “out of his shell.”

Martin, a two-time All-American offensive tackle at Stanford University, was selected by the Dolphins in the second-round of the 2012 NFL draft and signed a three-year contract with the team. Shortly thereafter, Incognito, a fellow offensive lineman and older, veteran player, commenced the common NFL tradition of “rookie hazing,” a sometimes cruel and prolonged series of humiliations and fatigues masquerading as an initiation ritual, or rite of passage. The question is, when do such “rites of passage” become violations of federal and state workplace protections against harassment and bullying?

The final straw for Martin occurred on October 28, 2013 when Martin allegedly was shunned by fellow members of the offensive line during a team meal. Martin had proceeded to sit down and eat with his teammates. The moment he joined the table, however, the other players reportedly stood up and walked away, leaving him to sit alone. At this point Martin felt that the treatment he had received from teammates had left him with no other choice than to leave the team.

Since the news of the incident surfaced, many Dolphins players have denied that Martin faced any harassment or bullying, alleging that the treatment Martin received was not beyond the usual activities that occur in any locker room.

What is Workplace Bullying?

This incident brings to light the fact that the NFL locker room, like any other workplace, can foster an environment that leaves individuals feeling harassed, bullied, and with no other recourse than to leave the workplace. NFL teams that pride themselves on the strength and endurance of their players in the face of the sport’s brutal demands have, in light of current events, found themselves reevaluating their workplace practices. Moreover, sports teams are beginning to see themselves as employers with professional workplaces similar to others’, not as an isolated anomalies.

Workplace bullying arises primarily in discrimination complaints based on harassment. Currently, neither federal nor state employment laws prohibit workplace bullying. However, both federal and state anti-discrimination statutes do make it unlawful for employers—like the Miami Dolphins and the NFL—to discriminate against an employee with regard to the terms and conditions of his or her employment because of the employee’s race, color, religion, sex, or national origin. These protections extend to workplace harassment when the harassment occurs because of the employee’s protected status.

Martin’s Potential Claims

Martin may have a number of workplace harassment claims, including some under Title VII of the Civil Rights Act of 1964 and others under various tort laws.

To have an actionable Title VII claim alleging a hostile work environment due to harassment, Martin must show that the harassing conduct meets three requirements:

1. The harassment must be “sufficiently severe or pervasive” to alter the terms and conditions of employment.
2. The harassment must be both objectively and subjectively hostile/abusive.
3. The harassment must be “because of” the victim’s protected status.

The first requirement means that Martin must show that the harassing conduct he experienced was severe or pervasive. In determining whether conduct is severe or pervasive courts consider evidence regarding the level of offensiveness, the frequency of the offensive conduct, and the length of time over which the alleged harassment occurred. Martin could offer evidence such as the voice mail message in which Incognito used a racial epithet as an example of proof that he suffered harassment because of his race.

Based on Martin’s departure from the Dolphins, he could bring another claim alleging that he was constructively discharged from the workplace—meaning that the conditions of his workplace became so intolerable that Martin was forced to quit.

As a result of the alleged events, Martin is currently receiving counseling for depression and emotional distress. Martin could use this as evidence to support a tort claim for intentional infliction of emotional distress (IIED) by alleging that the workplace bullying caused his emotional distress. The factors needed to succeed in a tort claim for IIED include evidence that:

• the employer acted intentionally or recklessly;
• the employer’s conduct was extreme and outrageous;
• the employer’s act was the cause of the distress; and
• the employee suffered severe emotional distress as a result of the employer’s conduct.

In addition, Martin has protected rights stemming from the collective bargaining agreement entered into between the NFL, the teams, and the NFL Players Association. As a union member, Martin could file a grievance alleging an unsafe workplace.

Martin has begun participating in the NFL’s independent investigation of the Dolphins’ bullying scandal. This is a high sign that the sports landscape is changing and that team owners should not simply see themselves as recruiters of athletic talent, but as employers. With the responsibility of being an employer comes the task of ensuring that players can do their jobs effectively in civil work environments. This may cause friction with the traditional ethos of football (and other sports) by which players are encouraged to cultivate brawn and aggression for the success of the team. The problem lies in preventing the conduct on the field from becoming harassment in the locker room.

Ashley N. Scott is an associate in the Atlanta office of Ogletree Deakins.