Many people over the past week have suggested that Jonathan Martin is in some way a wimp and just couldn’t handle “an NFL Locker Room”. Others further contend that Incognito was just giving the guy a hard time in jest. Wrong. Just plain wrong. This wasn’t a playground bullying or garden-variety rookie hazing. It is alleged Martin was the target of repeated discrimination and harassment, the likes of which no one should have to endure in their place of work.
Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611 (8th Cir. 2007):
To establish a Title VII race-based hostile work environment claim, a plaintiff must show (1) he is a member of a protected group, (2) he is subjected to unwelcome race-based harassment, (3) the harassment was because of his membership in the protected group, and (4) the harassment affected a term, condition, or privilege of his employment. Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 892 (8th Cir.2005). A hostile work environment “is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” as viewed objectively by a reasonable person.Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir.2003) (internal quotation omitted). “To be actionable, the conduct complained of must be extreme in nature and not merely rude or unpleasant.” Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir.2006) (citations omitted). “Allegations of a few isolated or sporadic incidents will not suffice; rather, the plaintiff must demonstrate the alleged harassment was ‘so intimidating, offensive, or hostile that it poisoned the work environment.’ ” Id. (quoting Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir.2003)).
Passananti v. Cook County, 689 F.3d 655 (7th Cir. 2012):
In claims of racial harassment, racially-charged words certainly can suffice. See,e.g., Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir.2004)(although plaintiff failed to show that employer was negligent in discovering and remedying coworker harassment, his work environment, in which he was repeatedly subjected to the word "n****r" and other race-based comments, was sufficiently severe or pervasive to support an otherwise actionable hostile work environment claim); Rodgers v. Western–Southern Life Ins. Co., 12 F.3d 668, 675–76 (7th Cir.1993) (finding an actionable hostile work environment claim when supervisors and employees referred to plaintiff by the term “n****r" between five and ten times during his employment).
Based on what we know so far it seems to me that Martin would have to have evidence of more than 1 or two incidents to have a successful claim. He'd also have to decide whether bringing a lawsuit is so antithetical to the NFL culture that it would wreck his career. But if I were a plaintiff's lawyer, I'd be champing at the bit to represent Martin.