It has been a strange week for the NFL, and it will have long lasting repercussions for every team the league, particularly regarding the "culture" that exists out of sight of the public in the locker rooms and among the players. It started with the announcement by Michael Sam, likely draft pick, that he was gay, and it is ending with the release of the report, primarily written by Ted Wells, on the Jonathan Martin/Richie Incognito bullying case with the Miami Dolphins. These are items that will seriously affect every team in the league, including the Dallas Cowboys.
The Sam announcement raised immediate questions about how the players and staff of NFL teams would react to an openly gay teammate. The Wells report creates serious doubt as to just how openly at least some locker rooms would welcome someone like Sam. It is hard to read through the crude and abusive behavior of Incognito, John Jerry, and Mike Pouncey without believing that there is a great possibility that an openly gay player in the same situation as Sam would have been subjected to even worse treatment.
There is an argument being made that this is just part of a unique environment where the level of violence and aggressiveness is not only condoned, but actually required to succeed. Opinions have been put forward that this may be damaging to Incognito, but it is the end of the NFL career for Martin, because no one in the NFL wants someone who is seen as weak and easily intimidated playing on their team, particularly on the offensive line. And, although it was almost certainly due to a dysfunctional attempt at coping and deflecting abuse, Martin did participate in some of the inappropriate activity.
It does not have to be that way, and apparently is not in many organizations, as Mark Schlereth showed in an excellent article at ESPN about how leadership and individual responsibility can create an entirely different atmosphere. That is how it should be everywhere. Sadly, the Wells report has cast a shadow of doubt about the way players treat each other everywhere.
But in the report, there is one small section that totally obliterates any possible defense of Incognito in particular or the NFL locker room culture in general. It deals with another victim of the ongoing harassment and abuse, identified only as "The Assistant Trainer". I have included the entire section, which is from pages 22-24 of the 144 page report, because you need to see the entire picture here.
We found that the Assistant Trainer, who was born in Japan, was the target of frequent and persistent harassment, including insults relating to his race and national origin. Incognito, Jerry and Pouncey admitted that they directed racially derogatory words toward him, including "Jap" and "Chinaman." At times, according to Martin, they referred to the Assistant Trainer as a "dirty communist" or a "North Korean," made demands such as "give me some water you f*****g chink," spoke to him in a phony, mocking Asian accent, including asking for "rubby rubby sucky sucky," and called his mother a "rub and tug masseuse." Martin and others informed us that Incognito and Jerry taunted the Assistant Trainer with jokes about having sex with his girlfriend. Incognito admitted that these types of comments were made to the Assistant Trainer.
On December 7, 2012, the anniversary of the Japanese attack on Pearl Harbor, Incognito, Jerry and Pouncey donned traditional Japanese headbands that featured a rising sun emblem (which the Assistant Trainer had given them) and jokingly threatened to harm the Assistant Trainer physically in retaliation for the Pearl Harbor attack. According to Martin, the Assistant Trainer confided in him that he was upset about the Pearl Harbor comments, finding them derogatory toward his heritage.
Martin and another player we interviewed both believed that the Assistant Trainer awkwardly laughed along with some of the racial insults, even though he was in fact offended. And both players seemed offended by the flagrant racial harassment of the Assistant Trainer. In a text message sent on November 4, 2013, Martin told a friend: "I always felt so bad for [the Assistant Trainer] . . . it was really racist." Martin claims that a number of Dolphins employees saw how the Assistant Trainer was humiliated but did not intervene, including his supervisor, head trainer Kevin O'Neill, who allegedly even laughed at some of the racial insults. As far as we know, none of the players, including Martin, confronted Incognito, Jerry or Pouncey about the racist comments directed at the Assistant Trainer or demanded that they cease.
When interviewed about these matters, the Assistant Trainer initially pleaded that he not be required to answer certain questions, implying that he could not be forthright because he was concerned about losing the trust of the players. The Assistant Trainer further claimed that Incognito was his friend and asserted that Incognito had never offended him. He told us that he could not recall if Incognito had called him a "Chinaman" or a "Jap," and refused to answer the question whether Incognito had said anything about his girlfriend, saying that the inquiry made him "very uncomfortable."
We did not find the Assistant Trainer's denials believable. Notably, hours after Martin left the team on October 28, the Assistant Trainer sent him a text message indicating that he had indeed been personally offended by the insults directed at him by Incognito, Jerry and Pouncey: "Hey JM I understand how [y]ou feel man... They are relentless sometime.... Some day I wanna do exactly what you did today." (emphasis added and ellipses in original). The ceaseless racial ridicule directed at the Assistant Trainer was appalling and plainly over the line in any workplace.
We also find the treatment of the Assistant Trainer particularly troubling because he was not a fellow football player, but a subordinate, a member of the training staff. In our view, it is likely that the Assistant Trainer felt that he had no standing or ability to fight back, and feared the loss of his job if he protested and the players did not take kindly to his complaints. Again, as with Player A, we view the treatment of the Assistant Trainer as part of a pattern of abusive, unprofessional behavior.
This is the section that damns the team, players and staff alike. As noted, this is not a player, who may be considered part of the "unique" football culture. He is not making a six or seven figure salary. It is a low level employee, possibly making a very modest salary (assistants and other lower ranking staff on NFL teams are not as well paid as you may think), who has been trapped in employment hell. He is in a sense a second-class citizen in the locker rooms because is support staff. He is not a player and he has no authority, the way a coach does. He cannot stand up physically to these hulking brutes who not are not only bigger than him man-to-man, but who come at him in packs. He is clearly terrified of complaining because he likely fears he would n lose his position and never get another job in the league again. The so-called "code" in the locker room hardly applies to him. And he can't go to his superiors, because they are part of the harassment. Everyone saw what was happening, and no one did a single damned thing about it.
There is no excuse. This is a hostile workplace environment, with racism, sexual harassment, and at least the threat of violence permeating it. Somewhere, lawyers are trying to ferret out the name and phone number of the Assistant Trainer, because there are millions to be made in a lawsuit. The Dolphins have that one irresistible lure for attorneys, deep pockets.
There is also the odd question of why the Miami Dolphins implemented a workplace conduct policy just months before this blew up. It is not clear in the report, but it seems to indicate that this was a first time event. If that is true, then it hints that the management might have known far more than they admit, and were trying to head this off. (Of course, if the team had distributed similar policies before, then it is just a condemnation of how ineffective the Dolphins were at enforcing their policy.)
But that is basically a layman's opinion. It would be more convincing, if we could get some answers from an experienced attorney who is a specialist in issues like workplace harassment and federal employment law. Fortunately, I know one. Actually, if you have been here at Blogging The Boys before, you do too. She is my fellow BTB writer, Dawn Macelli. Here are the answers she has graciously provided for me.
Can you give a legal definition of a hostile workplace environment?
Tom, I am glad you asked this question. For the average person there is some confusion about what a ‘hostile work environment' actually is. Title VII of the Civil Rights Act of 1964 gives us a definition of what is considered to be such a situation. There are five criteria that must be present for a hostile work environment to exist, they are as follows:
- The victim must have suffered intentional discrimination because of his or her protected class,
- The discrimination must be pervasive and regular,
- The discrimination must detrimentally impact the employee,
- The discrimination must detrimentally impact a reasonable person who is a member of that protected class, and
- The employer must have superior liability.
The Supreme Court has held that in addition to the standards set forth by Title VII, the conduct must have been "pervasive or severe enough to alter the conditions of employment AND create an abusive work environment" Meritor Savings Bank, FSB v. Vinson (1986).
Is there any question that this situation meets those specifications?
Let's apply the standards that Title VII sets forth.
First we must determine if the victim is a member of a protected class. The Act makes it unlawful for an employer to discriminate against any individual because of such individual's race, color, religion, sex, or national origin. The Assistant Trainer, as you noted, was subjected to racial slurs such as being called "Jap", "Chinaman" and "chink". He was also subjected to abuse regarding his nation of birth (Japan) in the player's "observance" of the Anniversary of Pearl Harbor Day.
Now we move on to determining if the conduct was pervasive and regular. The Wells Report indicates that, among other things, that the Assistant trainer was repeatedly subjected to behavior that was far beyond the realm of normal and accepted behavior. He was spoken to in a mocking Asian accent, he was asked, in a facetious manner, for "rubby rubby sucky sucky", and there were references to his mother as being essentially a prostitute.
Was the Assistant Trainer detrimentally impacted? His message to Jonathan Martin, immediately after Martin walked away from the team, indicate that the Assistant Trainer wished that he too could walk away from the intolerable abuse.
It stands to reason that any other member of the Assistant Trainer's protected class would also be detrimentally impacted by the abuse he was facing.
Now we face the toughest of our challenges. Can we prove liability on the part of the team? Did the Dolphins management have knowledge that this conduct was taking place? For that we do not need to prove that all management, or even senior management, was aware. The fact that his immediate superior, head trainer Kevin O'Neill, had not only observed the conduct but he also found humor in the situation. Management, in the form of Mr. O'Neill, failed in its basic responsibility to provide the Assistant Trainer with a workplace free of abusive behavior. That will establish liability on the team's part.
What is the legal exposure of the staff, management, and ownership?
Without access to all the information, I hesitate to speculate on the exposure involved. A number of factors are involved, including who might have had knowledge. Anyone up the chain of command who can be proven to have knowledge of the misconduct would face some exposure. Obviously Kevin O'Neill and the team, as an employer, are highly exposed. As to who else may be, I really don't have the information to make even an educated guess.
Could a federal or state agency become involved in this?
In short, yes. The first step will be for the Assistant Trainer to file a complaint with the Equal Employment Opportunity Commission. Title VII established the EEOC and charged it with jurisdiction over violations of this nature. Once the EEOC completes its investigation, assuming that they find that the claim has merit, they have two options.The EEOC can initiate legal action on behalf of the Assistant Trainer or they can issue him a "right to sue" letter and he can initiate legal action himself. Because of the type of money that we are talking about, I suspect that the Assistant Trainer already has or soon will seek counsel. They will handle the complaint process, and since they are already involved the EEOC will likely allow them to proceed with the litigation and/or settlement negotiations.
If there were federal involvement, could it impact the other franchises in the league?
There will be an impact from this regardless of what happens. I suspect every professional sports franchise in the country has, or soon will have a discussion with their counsel. Firms like mine will be conducting audits of established policies and how they actually work in practice. Serious revisions to policy and better training on those policies will begin.I would not be surprised if the league and the NFLPA both did not take an active role in this, such as training seminars for established players, and also for rookies coming into the league. There will also soon be serious oversight coming from the league. With training, prevention is really not that difficult, and both sides have a vested interest in the impact that it will have on the situation.
As for the EEOC becoming involved with other teams, that will only happen if there are claims made against those teams.
Right now, every owner, general manager, coach, staff member, and player in the NFL better be reading this report and taking it to heart. This is a serious condemnation of the NFL. While there are already protestations that this does not happen in every locker room, those protests sound rather hollow after some of the denials that came out of Miami when this first happened. Richie Incognito and his lawyer are completely refuting this report, despite some very damning quotes and admissions from Incognito himself. That in itself is a clear warning that this is possibly a much deeper and more pervasive issue than just a handful of rogue players in one locker room.
And Michael Sam is coming. The NFL, and whoever winds up with Sam on their team, had better get this right. Incognito, his teammates, and the Dolphins organization have already done too much damage to the league. It can't really afford another round of this execrable, idiotic, and bestial behavior.
Every team in the National Football League is now going to be scrutinized, and every one has to take responsibility for making sure this kind of behavior is not happening, and immediately stop it if it is. Just ignoring it will not work. This is not just about how players treat each other. It is about the rights and protections of every person in every organization in the league. Incognito and his cohorts have hurt a game so many of us love. Now it is up to everyone else in the NFL, particularly the owners, general managers and coaches, to make sure the damage stops and is repaired.
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