Case Study: Was Jonathan Martin the Victim of an Unlawful Hostile Work Environment under New Jersey Law?
ESPN, Sports Illustrated, Good Morning America and probably even your own Facebook page, have been flooded with varying opinions on the Miami bullying/harassment scandal. This blog entry is written by our New Jersey Employment Lawyers to analyze the facts, as reported, to determine whether a hostile work environment existed that would be in violation of the New Jersey Law Against Discrimination.
For those who have been living under a rock for the week, Miami Dolphins offensive lineman Jonathan Martin left his employment with the Miami Dolphins as a result of, at least in part, constant harassment and bullying directed at him from his teammates. It has been reported that Mr. Martin checked himself into a hospital as a result of suffering from emotional distress caused by the harassment. One teammate in particular, Richie Incognito, has been suspended indefinitely for his role in the harassment and bullying. NFL Commissioner Roger Goodell has appointed the prominent attorney, Ted Wells, to conduct an independent investigation into allegations of harassment and bullying within the Miami Dolphins.
Based upon the allegations that have reported, Mr. Wells' investigation should reveal that Jonathan Martin was subjected to a hostile work environment that would be in violation of New Jersey law. The New Jersey Law Against Discrimination makes it unlawful to discriminate against an employee on the basis of protected characteristics, which include race, color, disability and sexual orientation. In other words, the discrimination must be based upon one of these protected characteristics in order for the harassment to be against the law. In the landmark case of Lehman v. Toy 'R' Us, Inc. 132 N.J. 587 (1993), the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff's position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. The Lehman decision held that New Jersey employers must maintain an effective policy against unlawful harassment/discrimination. An effective policy requires, inter alia, that employers investigate complaints of harassment promptly, thoroughly and completely. All complaints of sexual harassment and other forms of discrimination must be fully investigated.
Since the Lehman decision, New Jersey law has recognized that a hostile work environment is not limited to sexual harassment, but any kind of harassment based upon a protected characteristic, including race, color, disability, sexual orientation, etc. Some New Jersey courts have held that a single comment or incident, if severe enough, can constitute a hostile work environment. see, e.g. Taylor v. Metzger, 152 N.J. 490 (1998) (single use of the phrase "jungle bunny" severe for purposes of establishing liability for racial harassment); Kwiatkowski v. Merrill Lynch, 2008 WL 3875417 (App. Div. 2008)(single use of the phrase "stupid fag" found to be severe for purposes of establishing liability for sexual orientation harassment); Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150 (App. Div. 2001) (single incident involving touching between members of the same sex sufficient to establish severity for purposes of sexual harassment claim).
The allegations of the harassment and bullying directed at Jonathan Martin are severe and pervasive enough to constitute a hostile work environment based upon Mr. Martin's race. It has been reported that Mr. Incognito left a threatening voice message on Mr. Martin's telephone identifying him as a "half nigger piece of shit". It does not appear that this was an isolated incident. Mr. Martin's attorneys have said that "[b]eyond the well-publicized voice mail with its racial epithet, Jonathan endured a malicious physical attack on him by a teammate, and daily vulgar comments such as the quote at the bottom. These facts are not in dispute."
Some of the post-scandal comments from other Miami Dolphin players actually blame the victim, Mr. Martin, for the situation. These comments will likely be viewed by the investigator as additional evidence of the existence of the discriminatory work environment within the Miami Dolphin workplace. For example, offensive tackle Tyson Clabo said, "I think if you have a problem with somebody -- a legitimate problem with somebody -- you should say, 'I have a problem with this,' and stand up and be a man. I don't think what happened is necessary. I don't know why he's doing this. And the only person who knows why is Jonathan Martin." Miami Dolphin receiver, Brian Hartline, "If you can't take validity from one part of the voice mail, how do you take validity from the whole voice mail? You can't pick and choose what parts count and which parts don't count."
Mr. Clabo and Mr. Hartline's comments are particular disturbing given the fact that Mr. Martin has voluntarily left a high paying job in the NFL and checked actually himself into the hospital for emotional distress. Despite these facts, at least these two of his ex-teammates suggest Mr. Martin has some ulterior motive and that it is somehow Mr. Martin's fault for not speaking up before he quit what a lot of people would consider a dream job. Other Dolphins, like Quarterback Ryan Tannehill, have said that Mr. Martin and Mr. Incognito were good friends. As Mr. Martin's attorney responded to these types of comments, stating, "For the entire season and-a-half he was with the Dolphins, he attempted to befriend the same teammates who subjected him to the abuse with the hope that doing so would end the harassment. This is a textbook reaction of victims of bullying. Despite these efforts, the taunting continued."
Mr. Martin now is unemployed and suffering from potential mental health disabilities as a result of the harassment. It is predicted that one of the remedial measures suggested by the investigator will be that Mr. Clabo, Mr. Hartline, Mr. Tannehill and the rest of the Miami Dolphin organization undergo extensive ant-harassment training so that they better understand the devastating impact that a hostile work environment can have on a victim, even when the victim is 6'5 and 312lbs.