Asked & Answered - Nemeth: Awareness of legal consequences is necessary


On Oct. 28, Jonathan Martin, a 24-year-old offensive lineman midway through his second season in the NFL, sat down to eat with a group of teammates in the Miami Dolphins’ cafeteria.

Immediately, they stood up and left the table.

In response, Martin is said to have flipped his tray and stormed out. He has not been back since.

What was initially portrayed as oversensitivity has become a discussion about bullying, racism and, as Los Angeles Times writer Alexandra Le Tillier has said, “what it means to be a man in this era.”

In the days that followed, a statement was released by Martin’s lawyer, David Cornwell, claiming that his client had been subjected to continuous harassment by colleagues during his time with the team.

Fellow lineman Richie Incognito was said to be the worst of the tormentors.

Patricia Nemeth is president and founder of Detroit-based Nemeth Law, P.C., a management-side labor and employment law firm. She spoke recently with Steve Thorpe of the Legal News about this issue.

Thorpe: Some workplaces seem more resistant to culture change than others. Certainly sports teams, but also police departments and even construction businesses appear to more often harbor abusers. Are similar problems just as prevalent in other settings, but better concealed?

Nemeth: We have seen similar problems in a number of different workplace settings including manufacturing, health care, retail, etcetera.

It is not necessarily that what is occurring in other settings is “just as prevalent” or “better concealed.” This type of behavior can occur anywhere at any time.

Whether a person is comfortable reporting it and whether there are appropriate procedures in place for reporting it is another story.

Additionally, managers need to be aware that such a report must be taken seriously, investigated and resolved.

Thorpe: This sort of behavior in football goes back to the days of leather helmets. Are there real possibilities for change and what role might the law play?

Nemeth: There are real possibilities for change depending on how management and the National Football League respond and how the players respond. If training for players is implemented and it is seen as a joke to attend just to make sure the training box has been checked off, no real change will be effectuated. If participants are open to listening and contributing to the discussion to find real solutions, change can happen. Many times the law plays a role in imposing legal consequences for engaging in certain behavior. When there are actual consequences people are more apt to pay attention and change their behavior accordingly.

Thorpe: The league and the NFL Players Association are conducting parallel investigations. Will the results of the multiple probes make legal action easier or more difficult?

Nemeth: It depends on the outcome and consistency of the results of the investigations. If the investigations differ with respect to witness statements, people interviewed, and conclusions reached, this could make legal action more difficult or it could make it easier depending on what element the person is attempting to prove.

The same would be true even if the two different investigations support one another.

Thorpe: Some reports say that Incognito’s alleged boorish behavior was not limited to teammates. According to National Football Post, Incognito and at least one other player “mocked the ethnic background of a team staff member and made crude jokes about the staff member’s wife.” Are perpetrators of harassment likely to have multiple targets? How might that affect any legal action?

Nemeth: A person engaging in this type of behavior may fall into a number of different categories; 1) the person is unaware that his/her behavior is inappropriate, 2) the person is aware that his/her behavior is inappropriate and doesn’t care, or 3) the person is intentionally engaging in the inappropriate behavior. In all cases, there may be multiple individuals affected.

Whenever there is more than one person affected, defending the individual becomes more difficult. It is changed from a he said/she said situation into a he said/they said situation.

Thorpe: There are many stories of “mean girls” tormenting girls they know, in several cases resulting in suicide. How does this sort of behavior vary by gender and should the law treat the genders differently in these cases? How does age change the situation legally?

Nemeth: Whenever bullying type of behavior is discussed, people fall back on talking about female on female bullying as “mean girls” and male on male bullying as “horseplay.”

In reality, the result is the same. There have been men/boys as well as women/girls who have committed suicide, which may have been due in part to what the inappropriate behavior they have experienced.

The law should not treat the genders differently nor should age play a role (although it may if the individuals involved are minors and then subject to criminal laws pertaining to juveniles versus adults).

Even though the law does not treat the genders differently, supervisors and ultimately jurors may have difficulty recognizing some behavior as illegal harassment. People understand the male supervisor harassing a female subordinate scenario.

However, they may have more difficulty understanding a female supervisor being harassed by a male subordinate or same gender harassment.

It is only recently that these types of claims have been gaining ground as serious legal issues that administrative agencies and the courts have started to address.

Thorpe: How might laws evolve to better address these issues?

Nemeth: The current laws that are in place can provide the basis for many claims being alleged. These include federal and state discrimination/harassment laws, whistleblower claims, and common law claims of assault, battery, intentional infliction of emotional distress.

Case law is evolving in these various areas to recognize bullying type of behavior is compensable.

Education of employees, supervisors and managers is necessary to make sure all are aware of what behavior is inappropriate and the potential legal consequences of engaging in that inappropriate behavior.