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How the Supreme Court Unwittingly Legitimized Richie Incognito’s Unlawful Conduct

Locker RoomWhen the current National Football League (NFL) season began, league officials hoped that the public would turn its attention to the action on the field, and away from the former players whose lives were ruined or shortened as a consequence of concussions that they had suffered during their playing days. And for a time, it worked. But, in recent weeks, a new headache emerged: Revelations that Miami Dolphins offensive lineman Richie Incognito bullied and racially harassed his teammate Jonathan Martin, to the point that Martin left the team.

The Incognito/Martin story reveals a deep cleavage running through American society. Responsible opinion leaders—including many sports journalists and former coaches—have generally condemned Incognito’s actions as clearly out of bounds. At a time when educators increasingly recognize the harmful impact of bullying on young people, toleration of Incognito’s actions would send a terrible message.

At the same time, however, some current athletes and sports fans seem intent on sending just that message. While few exactly defend Incognito, they either minimize his behavior as good-natured hazing that went too far, or blame Martin for not standing up to bullying.

The main story here has many elements, including changing views about manhood, bullying, and race. The law also plays a role. In the balance of this column, I will explain the legal liability that Incognito and the Dolphins may face, as well as the troubling assumptions behind a Supreme Court case from a related context.

Potential Legal Liability for Incognito and the Dolphins

Unless and until there is a trial, the full facts of the Incognito/Martin story will be unknown to all but the principals. For now, what we know is this: Incognito, who was once recognized by his peers as the NFL’s dirtiest player, has a long history of bad on-field and off-field behavior that led prior college and NFL teams to dismiss him; Incognito and other Dolphin veterans pressured Martin and other relatively poorly paid newcomers to shell out tens of thousands of dollars for lavish dinners and parties for the veterans; and most damagingly, Incognito directed threatening, vulgar and racist language at Martin, including a voicemail in which Incognito (who is white) called Martin (who is mixed-race) the n-word, and threatened to sexually assault Martin, to slap Martin’s mother, and to kill Martin. Incognito says that it was all in jest. However, Martin’s reaction suggests otherwise.

What legal liability attaches in these circumstances? Most seriously, if Incognito’s remarks are deemed true threats, Incognito (and potentially other Dolphins veterans who joined him in the bullying) could be criminally prosecuted under Florida law for extortion (with respect to the coerced payments) and assault (for the threats of violence). These same statements could also potentially result in civil liability under Florida tort law.

Meanwhile, the Miami Dolphins could be subject to civil liability under federal employment anti-discrimination law. Title VII of the 1964 Civil Rights Act forbids race discrimination in employment, and case law clearly establishes that “severe and pervasive” racial harassment is a form of race discrimination because it creates a hostile work environment. A single use of the n-word by a rogue employee does not itself create a hostile environment for which the employer is liable, but, here, the recorded voicemail may be only the tip of a very ugly iceberg.

Two 1998 decisions of the U.S. Supreme Court—Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton—permit employer liability for employee-on-employee harassment where the employer negligently fails to prevent or stop the harassment. Accordingly, the Dolphins could be held accountable for Incognito’s racial harassment of Martin, depending on what else Incognito and possibly other players did and said, and on what team management knew and did, or did not do, in response. If coaches participated in racial harassment, then the Dolphins could be liable even if the very top level of team management was not negligent, because case law imposes liability for acts of supervisors more readily than it imposes liability for acts of co-workers.

The “Prison Yard” Mentality in the Dolphins Locker Room

We do not yet know—and may never know—whether conditions in the Miami Dolphins locker room constituted a hostile work environment as defined by the Supreme Court cases. But we do know that other Supreme Court cases may have actually played some role in reinforcing the norms that permitted the bullying of Martin.

In particular, the Court has often held that the ordinary standards of civil society do not apply to special environments like prisons and the military. An NFL locker room is, of course, part of ordinary society, but in important respects it is considered different by players and others.

As ESPN reporter Jason Whitlock writes, the Dolphins locker room manifested a “prison yard” mentality, in which criminal characteristics were valued and scholar-athletes were despised. Whitlock (who is black) also decries a racial twist: Incognito’s black teammates considered the white Incognito “blacker” than the highly educated Martin. This observation, in turn, raises the bizarre possibility that when Incognito called Martin a “half” n-word, he meant to insult Martin for being insufficiently black. That would not be a defense to racial harassment, however, as Title VII forbids racial harassment in any direction.

In any event, race is only a part of this saga. Whitlock’s reporting shows how prison culture seeped into football culture. The Miami Dolphins may have assumed that, just as prisons are governed by their own distinctive rules, so are football teams.

Military Hazing

To be fair, the Supreme Court has never expressly condoned the routine violence and humiliation of prison life. But the same cannot quite be said for its view of military life.

Consider the 1996 case of United States v. Virginia. The Court held there that the State of Virginia violated the Fourteenth Amendment’s Equal Protection Clause by failing to permit women to enroll in the Virginia Military Institute (VMI) or to create a comparably prestigious institution for women. That ruling was undoubtedly correct: A state may not discriminate on the basis of sex without a very good reason and Virginia’s educational offerings were not even “separate but equal.”

Nonetheless, Justice Ruth Bader Ginsburg’s opinion for the near-unanimous Court offered a surprisingly positive view of VMI’s “adversative” method of instruction, in which instructors play the role of drill sergeants who break down “cadets” in order to build character. The Court took note of VMI’s success “in its mission to produce leaders.”

Does the adversative method work? Undoubtedly, it does for some young people, but it exacts a high cost for many others. Exaggerated portrayals of the adversative method—as depicted in such films as An Officer and a Gentleman (1982) or Full Metal Jacket (1982)—contain more than a kernel of truth. Military ideals of manhood were often instilled through sexist and homophobic slurs. Moreover, whether it is officially condoned or condemned, hazing by older peers has long been the ugly sidekick of the adversative method.

For these and other reasons, the military itself no longer uses the adversative method, even as it maintains rigorous training standards. But romanticized views of the adversative method remain, even in the rarefied world of the Supreme Court.

To be clear, I am not saying that the Supreme Court or VMI favors hazing. As noted above, the Court’s anti-discrimination case law can subject employers to liability for some forms of hazing and bullying. And VMI draws what it considers a sharp line against hazing.

What I am saying, instead, is that even generally enlightened leaders can idealize a largely bygone ideal of manhood and its relation to character-building. Hence, it is distressing, but hardly surprising, to hear Richie Incognito’s apologists invoke those same misguided ideals and methods when they say that Jonathan Martin should have simply taken it like a man.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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