Labor & Employment Developments Blog

I ran across an article in the USA Today entitled “What did Brett Favre do wrong? Legal experts uncertain.”  For those of you who don’t follow football, Favre allegedly made advances toward a female employee of the New York Jets football team when he was a member of the Jets.  The advances included messages on Myspace, voice messages and x-rated photos allegedly e-mailed or texted by Favre.  Bearing in mind that I have no information apart from what has been reported in the media, this situation does not really seem that mysterious to me.

Neither Favre nor the victim of the alleged harassment are employed by the Jets at present.  It appears that the alleged victim never reported any harassment and the victim did not report to Favre.  Thus, this is a case of co-worker harassment and the Jets would only be liable if they knew or should have known of the harassment.  There is no evidence that they did. 

Even if they did, it is not clear that the conduct reported to date, however distasteful, meets the relatively high standard for a hostile work environment.  Some have even questioned whether the conduct was unwelcome; perhaps a better question is whether the alleged victim found it subjectively offensive.  Nevertheless, the conduct, if true, may or may not rise to the level of actionable harassment.  Since the victim seems to have no interest in making a claim against the Jets, it is a hypothetical question.  The conduct would almost certainly violate any well written anti-harassment policy but that is moot since Favre is no longer employed by the Jets.  As a preventative measure, the Jets might want to provide some additional training or re-issue the anti-harassment policy.  Favre’s current team, the Minnesota Vikings, may want to do the same.

As for the NFL, their issues are in the court of public opinion so they are making the right statements about an investigation and appropriate action.  Given the fact that NFL Quarterbacks have become a troublesome lot (looking at you Roethlisberger and Vick), expect the NFL to dole out some sort of punishment. 

As for Favre, he probably has some explaining to do at home but when responding to the NFL investigation, maybe he should try the Costanza defense.