Labor & Employment Developments Blog

You may recall my post from a couple months ago about Brett Favre’s alleged harassment of a New York Jets employee, Jenn Sterger.  The NFL has completed its investigation and has been unable to substantiate any allegations that Favre violated league policies.  However, the commissioner did conclude that Favre failed to cooperate with the investigation and was less than candid so he fined him $50,000, which is pocket change to Favre.  I was not going to bother commenting on this sorry spectacle until I happened to hear ESPN’s “legal analyst” on Sportscenter this morning.  The analyst, who shall remain nameless, expressed the following opinions: 1) Sterger could sue Favre and the Jets, although there might be some statute of limitations issues; 2) Favre could be considered her supervisor because he was higher up the chain in the Jets organization than Sterger; and 3) if Sterger were to file suit, her case would likely get to a jury.  The only question I had after hearing this was how can I get an analyst job at ESPN because I can do better than this. 

First, Sterger has a serious problem with the statute of limitations but I will let that one pass since it was at least recognized as an issue.  Assuming she can assert a timely claim, it seems very unlikely that Favre could be considered her supervisor, even if he is more highly placed in the Jets organization.  As far as I know there is no evidence that Favre ever had any control, direct or indirect, over Sterger’s employment.  As a result, the Jets would be held to a knew or should have known standard as to the alleged harassment.  There was never any report of any harassment during employment so it is difficult to see how the Jets could be liable.  More importantly, the standard for sexual harassment is very high – the harassment must be severe and pervasive by both objective and subjective standards.  Here, we are talking about a few offensive calls and text messages (with photos) that appear to have been largely ignored by Sterger.  She never reported the issue, even after leaving the Jets organization.  I doubt that this case, if filed, would ever see a jury.  The Jets would be able to have the case dismissed on a motion, likely early in the case.  Of course, they would probably settle it to make it go away quietly so it does have some value. 

I took a look at ESPN’s website and, in fairness, they now have a legal analysis posted that is accurate although the attorney who is responsible is not the one who commented earlier.