Why Employers Should Care About An ESPN Anchor Being Suspended

There’s no lawsuit–at least not now, anyway. There are no harassment or discrimination allegations. An employee made comments on a podcast, presumably done outside of work hours.

So if the employer finds such comments objectionable, is that really a problem? What’s the problem? It’s legal after-work activity, right? Does an employer have a right to discipline an employee who, during off-hours, makes comments that offend the employer — and others?

I’m going to see that question and raise it a few notches: Assuming an employer can (legally) discipline the employer, should the employer do so? Is it the right thing to do? Under what circumstances is it the right thing to do?

Yes, I’m referring to ESPN’s decision to suspend Sage Steele.  Do we care? Should we? I generally don’t watch sports and I’m not an ESPN subscriber. That said, I believe we should care. I believe employers should care. Read on for my take. For those who don’t know the story, here, in a nutshell, is what went down:

Sage Steele is an ESPN anchor, who co-hosts the 12 p.m. SportsCenter as well as SportsCenter on the Road, from various events, such as the Super Bowl and The Masters. She has been with ESPN for 15 years. Among other credentials, she formerly hosted NBA Countdown on NBC and ESPN for four seasons. Ms. Steele has been seen as a role model to women in general and to women of color in particular.

Last week, Ms. Steele appeared in the podcast, Uncut, hosted by Jay Cutler.  This interview ultimately led to her suspension and, apparently, her removal from the host spot on the “espnW: Women + Sports Summit” slated for later this month. I wouldn’t be surprised if the repercussions don’t end there. What did she say/do that was so objectionable to ESPN — and to many people?

Here are the comments:

Ms. Steele criticized ESPN’s vaccine mandate. She called it “sick” and stated that she only got vaccinated because she didn’t want to lose her job: “I respect everyone’s decision. I really do. But to mandate it is sick, and it’s scary to me in many ways,” Steele said. “I’m not surprised it got to this point, especially with Disney.[which owns ESPN] I mean, a global company like that.” (Ironically, she has reportedly tested positive for COVID.)

That comment was bad enough. Unfortunately, though, she didn’t limit her comments to the vaccine mandate. It looks like almost anything was fair game, including a criticism of former President Barack Obama identifying as Black on the most recent US census: “I’m like, ‘Well, congratulations to the president. That’s his thing.’ I think that’s fascinating considering his black dad was nowhere to be found, but his white mom and grandma raised him, but hey, you do you. I’m going to do me,”

Her comments on journalism and sexism were at least as troubling. She stated that women  “know what [they’re] doing” regarding their mode of dress and followed up with: “So when you dress like that, I’m not saying you deserve the gross comments, but you know what you’re doing when you’re putting that outfit on, too. Like, women are smart, so don’t play coy and put it all on the guys.”

OK, it’s easy to see why the comments are controversial and offensive, but some might wonder why should ESPN have disciplined her. Doesn’t she have a right to her own opinions? Doesn’t she have a First Amendment right to say what she wants and express herself? The answer to both questions is “Yes”, but that doesn’t necessarily entitle her to a job. If Ms. Steele were a government employee, her employer probably would not have the right to discipline her for her speech (especially during off-hours) unless it could prove it had a compelling interest and that the discipline in question was the least restrictive means of addressing that interest. But ESPN is a private employer.

Would anti-discrimination laws apply? Probably not. Ms. Steele wasn’t suspended (and removed from another show) because of her race, ethnicity, or gender. Here’s ESPN’s statement about its decision: “At ESPN, we embrace different points of view — dialogue and discussion makes this place great, That said, we expect that those points of view be expressed respectfully, in a manner consistent with our values, and in line with our internal policies.”

Now, if Ms. Steele were to allege that other male anchors or anchors who were not Black made similar statements and faced no repercussions, that would be another story. Then, assuming she could prove that, she would have a viable discrimination claim against ESPN. So far that does not appear to be the case.

OK, so it looks like ESPN can legally do what it did. Should ESPN have done so? Was it the right thing to do? I believe so. Here’s why: Ms. Steele, while she may not be a public employee, is a public figure. As a mainstay of ESPN, she can be seen as reflecting ESPN’s values. You don’t need me to tell you that we are living in turbulent times. While we have generally become more aware of sensitized to issues of sex and race discrimination we have not even come close to conquering it. ESPN determined (correctly, in my humble opinion) that Ms. Steele’s comments at best sent a terrible message. ESPN determined that those comments are not in line with its values. ESPN understood that it would not be taken seriously if it merely condemned her comments, or worse, did nothing.

There’s still another piece to this story though, one that I suggest is particularly relevant to employers: ESPN, in addition to being a cable sports channel, is an employer – a large employer. I can’t speak to ESPN’s work culture in general. When an employer becomes aware of comments that either are or could easily be seen as discriminatory and does nothing, it sends a message to its employees that it is willing to tolerate discriminatory behavior by its employees, despite its EEO statements and its policies.

Ms. Steele is a prominent, high-performing employee who has probably made ESPN a lot of money. We’ve heard of many employers who have turned a blind eye to similar behavior by employees that yield them a lot of money and later ended up paying dearly for it. In this respect, ESPN got it right. In this respect, ESPN made a smart and maybe even brave move. An employer’s failure to respond is often the reason it ends up facing messy costly lawsuits, high turnover and even a decline based on bad publicity later. I can’t say whether ESPN got everything right. That’s not really the point, though. Employers can still learn from ESPN  in similar situations by responding promptly, strongly, making hard decisions, and doing what’s right.

OK, I’ve said my piece. See you next time…

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.theemplawyerologist.com to contact me for a complimentary 20-minute consultation. 
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
 
Watch my television interview on Stop My Crisis with Vivian Gaspar.
 
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions. Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ

Share:

More Posts

Do You Have to Hire a Murderer?

You get an applicant for a customer-facing job. Everything about this candidate seems just right for the position. No criminal history according to the application.

Follow Us!