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Preventing Harassment Claims: What you can learn from the NFL and the Miami Dolphins' harassment debacle

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Construction Business Owner Magazine - July 1, 2014

By: Marc Furman

Professional football is known as a tough sport with an equally tough behind-the-scenes locker room culture. Jonathan Martin’s departure from the Miami Dolphins on Oct. 28, 2013, perhaps signaled a change. Press reports indicated that Martin left the team because of “persistent bullying, harassment and ridicule.” The Dolphins were forced to investigate, which led to the infamous Feb. 14 report from attorney Ted Wells and his team of investigators. The Wells Report uncovered highly inappropriate conduct and comments from Richie Incognito, John Jerry, Mike Pouncey and Jim Turner. Martin wasn’t the only target of harassment—at least one other player (“Player A”) and an assistant trainer were also the target of homophobic and racist bullying behaviors.

The Wells Report recognized that the NFL is no ordinary workplace. Some in the construction industry would say the same about a typical jobsite. However, the adage “what happens on the jobsite stays on the jobsite” is no longer true. Claims of workplace harassment on jobsites have skyrocketed in recent years. With an increasingly diverse workforce, contractors and their employees must be more aware than ever that they are not exempt from the workplace harassment laws that apply in any other employment context.

Presently, no federal law protects employees against bullying in the workplace. Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment based on protected classifications such as race, sex and national origin. Many states do not permit discrimination on the basis of sexual orientation. In the Dolphins’ case, each bullying victim was in a protected class (race) or was targeted because he was suspected of being in a protected class (sexual orientation). In any other context, Martin, Player A or the assistant trainer—armed with the Wells Report—would have a strong case for workplace harassment and bullying.

Harassment on the Jobsite
Title VII does not create a code of civility, and no protected classification protects employees against general bullying in the workplace.

But where does the line get drawn? Since 2003, at least 25 states have introduced proposed workplace bullying laws to allow employees to sue for harassment without showing discrimination or membership in a protected group. This would represent a significant expansion of the law that could expose employers to potentially unlimited liability for poor workplace conduct. This kind of proposed legislation likely will continue to spread, may lead to actual anti-bullying laws and could become a growing concern for construction business owners.

Lessons from the Dolphins’ Mistakes
In April 2013, the NFL released a league memo that reiterated preexisting sexual orientation, anti-discrimination and harassment policy guidelines in addition to sections of the league’s 2011 Collective Bargaining Agreement, which explicitly forbid any harassment or discrimination based on race, religion, national origin or sexual orientation. As reported by the Miami Herald, it is unlikely that the NFL will change policies. Commissioner Roger Goodell commented in April about the NFL’s existing policies: “Some positive things are happening. We have some very good steps that are being taken to train our personnel to make sure our policies are modified to ensure we are doing the best possible job for everybody in a professional environment. I am pleased at the way we have corrected it.” Goodell’s statement fails to address the obvious question: If these policies do not need substantial change, why did they not protect Martin?

Why Didn’t the Dolphins Enforce NFL Policy Guidelines?
At the time of the incidents, the Dolphins had a workplace conduct policy that defined harassment to include “unwelcome contact; jokes, comments and antics; generalizations and put-downs.” The Wells Report indicates that the Dolphins’ and the NFL’s policies were completely ignored. Plenty of other NFL teams do not have the same toxic environment that drove Martin to contemplate suicide. What went wrong here?

The first lesson we can take away from the Dolphins’ case is that a top-down approach may be most effective in non-traditional work environments, including jobsites. Appropriate workplace culture should start at the top with you, the owner. Lead by displaying appropriate conduct. Let it be known that bullying and harassment will not be tolerated by you or your company. When it comes to bullying and harassment, your silence may be perceived by others as consent. Creating an appropriate workplace culture requires the following key essential steps.

Establish Confidential Complaint Procedures
Had any of the three targets of harassment on the Dolphins team felt that they could have effectively and confidentially brought an end to their torment, they likely would have done so. Martin has stated that he felt that the best approach was to befriend Incognito, which backfired, only leading to more abuse. However, anti-harassment policies only work from the bottom up when the target of the harassment makes a complaint.

Don’t let this happen on your jobsite. Owners, managers and supervisors should make sure no one turns a blind eye to harassment. Every employee should have access to an up-to-date employee handbook that outlines the rules of the road, including an equal employment opportunity policy statement, a harassment and retaliation policy prohibiting discrimination and a confidential complaint and investigation procedure.

For when things do go wrong, having a clear, well-defined, confidential complaint procedure is the most important component of your workplace policy. The procedure should provide multichannel reporting. For example, a laborer who feels threatened by a project manager should be able to confidentially reach out to human resources professionals, superintendents and the owner. Owners should be included in this procedure just in case a supervisor is the key offender. The procedure should also make clear that the company cannot police everyone on the jobsite at all times and that workers are not just encouraged but also required to report harassment.

Your Supervisor Is Your Best Defense
One of the more shocking revelations from the Wells inquiry was that Offensive Line Coach Jim Turner knew about the harassment and did nothing to stop it. Instead, he perpetuated and participated in it. Turner engaged in calling Player A homosexual slurs and bought Player A a male sex doll for Christmas. The fact that Turner bought other linemen female sex dolls doesn’t make his actions toward Player A any less offensive or unlawful.

As an owner, you can’t possibly be everywhere on your jobsites all the time. Your supervisors and right-hand employees are your eyes and ears on the ground. Your supervisors also directly connect you to liability if they are the ones harassing your employees and other workers on the jobsite. In the eyes of the law, supervisor harassment is equal to company harassment. Racial discrimination lawsuits involving threatening symbols, objects and gestures on jobsites have markedly increased—a good reason to have an all-hands-on-deck approach to stopping harassment on your jobsite. Make sure your supervisors and right-hand employees know what is happening on jobsites, and quickly report any harassing or threatening behavior. Even if no federal anti-bullying law exists, the owner must set the top-down professional tone on jobsites, starting with appropriate supervisor conduct.

A Serious Offense
The eggshell plaintiff principle of law states that you take your victims as you find them. In other words, if your employee claims to be a victim of workplace harassment and has a history of depression caused by previous bullying—as was the case with Jonathan Martin—you may be responsible for the damage caused on your worksite. In the aftermath of his departure, Martin was portrayed by some in the media as an intelligent and atypical offensive lineman—some claim he was overly sensitive to the harsh treatment he received. If your complainant is sensitive to particular harassing behaviors, previous injury or a fragile disposition is not a defense to the inappropriate actions of your employees. Owners should be aware that bullying can quickly become pervasive on a jobsite. Once that happens, owners risk a claim for a hostile work environment, which is legally actionable.

Workplace Policies That Protect Your Business
In order to have any defense to claims of workplace harassment (and potential bullying in the future), your first step is to have workplace policies that clearly outline forbidden conduct. Your workplace policies must contain a sexual harassment policy and a complaint reporting procedure that is confidential and easy to access. You should also adhere to a code of conduct. No one can anticipate every possible insensitive and inappropriate comment, behavior or action. Nevertheless, you must spell out workplace rules—even the most obvious ones—so that no employee can say they did not have notice of the policy. If you don’t have the appropriate policies in place, you are throwing away the best possible defense to claims of discrimination, harassment or bullying.

Published in the July 2014 issue of Construction Business Owner Magazine.