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.
- Partner
Mark Chumley has experience representing clients in all aspects of labor and employment law. He has handled numerous cases before state and federal courts and state and federal civil rights agencies, including claims involving ...
Topics/Tags
Select- Labor & Employment Law
- Coronavirus
- Employment Law
- Department of Labor
- Discrimination
- Arbitration
- Labor Law
- Employee Benefits and Executive Compensation
- Religion Discrimination
- Disability Discrimination
- IRS
- NLRB
- Race Discrimination
- Litigation
- Employer Policies
- OSHA
- Americans with Disabilities Act
- Social Media
- Retirement
- Sexual Orientation Discrimination
- Accommodation
- National Labor Relations Act
- National Labor Relations Board
- ERISA
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- Wage & Hour
- EEOC
- ACA
- Affordable Car Act
- ADAAA
- NLRA
- Title VII
- Unions
- Employer Rules
- Federal Arbitration Act
- Sexual Harassment
- Technology
- Privacy
- 401(k)
- Transgender Issues
- FMLA
- Workplace Accommodations
- Disability
- Workplace Violence
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Paycheck Protection Program
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- Benefits
- E-Discovery
- Evidence
- Family and Medical Leave Act
- Environmental Law
- Overtime Pay
- Privacy Laws
- Representative Election Regulations
- Department of Justice
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Electronically Stored Information
- Telecommuting
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Classification
- Confidentiality
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- State Minimum Wage
- Wage Increase
- Disability Leave
- Social Media Content
- Taxation
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
Recent Posts
- The Practical Employment Law Podcat: Labor & Employment Law Update Week of 1/23/23
- The Practical Employment Law Podcast: The Obligatory New Year's Episode
- The Practical Employment Law Podcast: The Obligatory Holiday Party Episode
- Independent Contractor Classification - Deadline to Submit Comments on the Notice of Proposed Rulemaking is Approaching
- The Practical Employment Law Podcast: Thanksgiving for Plaintiffs' Attorneys
- Why Every Employer Including Those Outside NYC Should Stay Abreast of the NYC Pay Transparency Law
- The Practical Employment Law Podcast: Interview with Author and Lawyer Steven Mitchell Sack
- The Practical Employment Law Podcast: Are You Caught in a TRAP?
- California New Pay Transparency Law
- The Practical Employment Law Podcast: The Controversial Episode