Tackling Workplace Bullying in Tort: Emerging Extreme and Outrageous Conduct Test Averts Need for Statutory Solution

Introduction In 2013, Jonathan Martin, a starter for the Miami Dolphins professional football team, checked into a local hospital for psychological treatment after a year of repeated harassment by three teammates.1 The players had made persistent graphic sexual remarks and obscene gestures about Martin’s sister and mother.2 Martin’s teammates bombarded him with racial and vulgar insults like “nigger,” “shinebox,” “cunt,” “bitch,” and “faggot.”3 On one occasion, a lineman roughed up Martin in front of other players to humiliate him.4 At least one teammate admitted wanting to “break” Martin by causing him to have an “emotional reaction.”5 Independent investigators from Paul Weiss concluded the conduct was workplace bullying.6 Martin experienced depression as a result of the harassment.7 He contemplated suicide twice.8 Martin missed the last eight games of the 2013 season and left the Dolphins for another team.9 If workplace bullying can disrupt the mental health and employment of a six-foot