After a report by The Boston Globe on the mistreatment of female ESPN employees and Adrienne Lawrence's potential lawsuit looming, ESPN could face significant legal consequences.
An investigative report by The Boston Globe’s Jenn Abelson on allegations of mistreatment of female ESPN employees suggests that the network could face significant legal consequences. Abelson’s report depicts ESPN as a hostile work environment for women, some of whom feel they have been targeted for unwelcomed sexual advances and others of whom believe they have encountered pregnancy discrimination.
Along those lines, Abelson describes accounts of women hiding pregnancies from bosses and co-workers. They do so out of fear of the impact of being pregnant on their continued employment. These concerns have only amplified as ESPN downsizes in response to cord cutting and other market shifts that disrupt the “worldwide leader in sports.”
Adrienne Lawrence’s complaint and potential lawsuit—and ESPN’s possible defenses
Abelson’s report names one former ESPN on-air talent who recounts suffering blatant sexism and who has since taken legal action. Adrienne Lawrence, who is an attorney, filed a discrimination complaint with the Connecticut Commission on Human Rights and Opportunities this past summer. Lawrence charges that her male colleagues “marked” her and other female employees for unwanted sexual advances. Lawrence claims that ESPN anchor John Buccigross texted shirtless photographs of himself. He also sent her flirtatious messages, such as “Thank you, dollface. You’re wonderful” and “#dreamgirl.” Lawrence, who is now a Madden 18 sideline reporter, further contends that ESPN retaliated against her for speaking up. The network gradually reduced her airtime and later denied her a permanent job.
The fact that Lawrence filed a complaint means that she swore under oath as to her claims against ESPN. This is an important distinction from a person who only raises assertions during a media interview. A person who swears under oath does under penalty of perjury. If he or she knowingly lies, they can be charged with the felony crime of perjury. A sworn statement by no means guarantees the veracity of the allegations—a complainant often recalls the past in an unintentionally distortive or inaccurate way; perjury is also a difficult crime to prosecute since the prosecutor must prove that a defendant knowingly lied. Nonetheless, such a statement lends some degree of credibility to the complainant’s assertions. A person who speaks with a journalist, in contrast, does so without risk of perjury and thus may be more inclined to exaggerate or even lie.
Under Connecticut law, ESPN had 30 days to respond to Lawrence’s claims or risk a default judgment. In the months that followed Lawrence’s filing, the Commission was expected to perform a case assessment review. The review evaluates the basic merits of a complaint and its factual contentions. If a complaint passes this hurdle, the Commission then attempts to settle the matter. To that end, the commission uses a neutral mediator who tries to bridge differences between the two sides. A mediator typically attempts to resolve the complaint by suggesting that the respondent (in this case ESPN) offer some sort of compensation, such as back pay, to the complainant.
No resolution was reached in Lawrence’s complaint, as it was dismissed at her request earlier this month. The dismissal enables Lawrence to file a lawsuit in federal court. If Lawrence sues, she would likely include claims for sexual harassment, hostile workplace and defamation. To prevail in those claims, Lawrence would likely argue that ESPN management knew or should have known about conduct that created a hostile environment for her and other women. She might also contend that ESPN executives badmouthed her and have made it more difficult for her to land comparable employment with another network.
Lawrence would use her own experience and other available evidence to portray a pattern of misconduct. She alludes to this strategy in a tweet on Friday on Friday in which she claims that ESPN “knows” her allegations consist of far more than “text messages and photos.”
Lawrence would then assert that ESPN had a duty to take reasonable steps to eliminate such pervasive hostility. These steps would likely include firing, suspending or re-training male employees who engaged in wrongful conduct. If ESPN failed to take such corrective steps, Lawrence’s argument would be strengthened. Lawrence would also describe her departure from the network as a reflection not of merit or performance but rather of not acquiescing to the company’s misogynistic culture.
Along those lines, Lawrence could be armed with a dossier of material that suggests ESPN not only tolerates a culture of sexual misconduct but perhaps also encourages it. The 2011 book Those Guys Have All the Fun is a window into this world. Authored by Tom Shales and James Andrew Miller, the book depicts ESPN as a place where sexual harassment, extramarital affairs and a “frat boy” culture was rampant for years. In 2001 Mike Freemen, now of Bleacher Report, authored ESPN: The Uncensored History, which, among other points, describes sexual harassment complaints at ESPN and their accompanying litigation. Although both books are slightly dated, they could prove valuable for an attorney seeking to identify potential witnesses for a sexual harassment lawsuit.
ESPN aggressively responded to The Boston Globe story with multiple statements via its PR department. “We work hard to maintain a respectful and inclusive culture at ESPN,” said a spokesperson. “It is always a work in progress, but we’re proud of the significant progress we’ve made in developing and placing women in key roles at the company in the board room, in leadership positions throughout ESPN and on air.”
The company’s public relations staff alerted this column on Thursday evening to a public relations website that had portions of text messages exchanged between Lawrence and Buccigross. An ESPN spokesperson declared that “it’s clear that they had a consensual, personal friendship that spanned months.”
On Thursday night, SI.com learned that an ESPN human resources official posted on the company’s internal website about the Globe story.
“This afternoon a story broke in The Boston Globe that raises questions concerning the culture at ESPN and how we have handled difficult situations, specifically those involving alleged harassment and discrimination,” the post read. “You should know that we cooperated with the Globe to address their questions, and provide a fuller accounting of events. This process included revisiting and reviewing the investigations surrounding each of the incidents referenced; and vigorously defending the steps we took, the outcomes of those investigations and our culture. Unfortunately the Globe chose to ignore our responses and instead pursue a clear agenda against the company. Their “investigation” lacks important and relevant context. Maintaining a respectful and inclusive culture is paramount at ESPN. As outlined in John Skipper’s recent message, we have many resources in place for employees to report complaints and concerns. We encourage you to utilize those resources to address issues as they arise.”
Said Lawrence, in her tweet on Friday morning: “As for ESPN’s recent behavior, its decision to (i) single me out, (ii) ignore my key allegations, which ESPN knows are far broader than text messages and photos, and then (iii) release select, self-serving text messages, only further evidences the culture of this network and the lengths it will go and the unethical means it will employ to try to silence woman.”
In fairness to ESPN, the network might offer a very different account of Lawrence’s experience at ESPN and more broadly the culture of the ESPN workplace. ESPN might contend that Lawrence has exaggerated the problems she experienced. It might also share performance evaluations of Lawrence and others competing for the same permanent job and use them to explain why the job went to someone else. As to unflattering books and articles about ESPN, the network would stress that such materials sometimes exaggerate and distort in order to increase sales. Also, comments made to journalists and authors are not under oath and thus should be taken with a grain of salt.
Further, ESPN would likely contend that it has severely sanctioned employees who are accused of sexual harassment. For instance, earlier this week ESPN suspended Eric Davis and Donovan McNabb from their radio shows amid allegations they and others employed by the NFL Network sexually harassed a former colleague, Jami Cantor. ESPN likely also would point to workplace discrimination policies and stress that management aggressively enforces them.
In any lawsuit, electronic evidence would be crucial. Personal texts between Lawrence and Buccigross were released by ESPN, as noted above. Other personal texts, along with friendly or flirtatious emails and social media direct messages sent while under the false assumption of privacy, would likely surface as well through the pretrial discovery process. Prominent figures at ESPN may also be required to testify under oath about sensitive topics. Many careers could be forever tarnished, regardless of the outcome of litigation.
Others who could sue ESPN and how ESPN might respond
Lawrence’s experience does not appear to be unique among women recently employed by ESPN. To that end, Abelson’s article details the experiences of former SportsCenter anchor Sara Walsh and former ESPN employment applicant Jenn Sterger. The account of Walsh—and how her pregnancy impacted her employment in 2014—is especially disturbing. According to Abelson, Walsh’s boss, SportsCenter vice president Mike McQuade, questioned Walsh’s commitment to her responsibilities to SportsCenter since Walsh also appeared on The Fantasy Show. In order to prove her commitment to SportsCenter, Walsh reportedly performed her scheduled broadcast at the same time she began to bleed from a miscarriage. She did so while on assignment in Alabama and sick from pregnancy complications. Walsh felt that calling in sick could have cost her a coveted job on SportsCenter.
My mother bought them these onesies because she thought they were funny. For us, they're especially poignant. Finding a good egg didn't come easy for me, and I suspect there are many people out there facing the same struggle. The road down a dark path began while hosting Sportscenter on the road from Alabama. I arrived in Tuscaloosa almost three months pregnant. I wouldn't return the same way. The juxtaposition of college kids going nuts behind our set, while I was losing a baby on it, was surreal. I was scared, nobody knew I was pregnant, so I did the show while having a miscarriage. On television. My husband had to watch this unfold from more than a thousand miles away, texting me hospital options during commercial breaks. It would get worse. Two more failed pregnancies. More than once, I'd have surgery one day and be on SportsCenter the next so as not to draw attention to my situation. We then went down the IVF road of endless shots and procedures. After several rounds, we could only salvage two eggs. I refused to even use them for a long time, because I couldn't bear the idea of all hope being gone. I blew off pregnancy tests, scared to know if it worked. It had. Times two. It was exciting news, but we knew better than to celebrate. So I spent a third straight football season pregnant, strategically picking out clothes and standing at certain angles, using scripts to hide my stomach. There would be no baby announcement, no shower, we didn't buy a single thing in preparation for the babies, because I wasn't sure they'd show up. We told very few people we were pregnant, and almost no one there were two. For those that thought I was weirdly quiet about my pregnancy, now you know why. For as long as I can remember I hosted Sportscenter on Mother's Day, and the last couple years doing that have been personally brutal. An hours-long reminder of everything that had gone wrong. I wasn't on tv today, and I'm not sure when I will be again, but instead I got to hang with these two good eggs. My ONLY good eggs. And I know how lucky I really am. #twins #ivf #2goodeggs
This horrific experience led Walsh to complain internally at the company. She was angered that McQuade allegedly failed to respond to her email while she received hospital treatment for her miscarriage. Walsh complained about McQuade’s conduct to human resources, but ESPN apparently did not take action. Instead, Abelson asserts, ESPN appears to have retaliated against Walsh by reducing her on-air appearances and, this past May, laying her off.
Walsh could consider a lawsuit under the Pregnancy Discrimination Act. The Act is a federal law that prohibits employers from unfavorably treating employees on account of their pregnancy or childbirth. Plaintiffs who successfully using this law can receive compensatory damages for the harm they suffered as well as punitive damages that reflect a just punishment for the company.
In response to such a lawsuit, ESPN would likely argue that it never discriminated against Walsh—it didn’t take her off the air or require her to change her job. ESPN would also contend that Walsh is ultimately responsible for her choice to not call in sick. The company might further stress that it has treated other pregnant employees in accordance with the law and basic decency. In addition, ESPN might insist that the pressure Walsh felt is one that all broadcasters and journalists feel, particularly in an era of downsizing. Most importantly, such job pressure is not a legal harm but rather comes with the territory in any ultra competitive industry like broadcasting and journalism.
In May, SI.com reported, according to multiple ESPN staffers, that Walsh flew from Florida to Connecticut with her three month-old twins under the working presumption that because she was scheduled to work that week, she’d be fine from layoffs. But the morning after she landed in Connecticut with her twins, the anchor learned she was part of ESPN’s layoffs. She made public via Instagram that she had been laid off following her maternity leave. That incident stung many ESPN staffers; Walsh was popular among her colleagues.
As to Sterger, once a columnist for this website, she says that she was sexually harassed while auditioning for ESPN back in 2006 and 2008. Male employees who played some role in whether ESPN would hire Sterger placed her in completely inappropriate situations, such as taking her to a strip club. In a post she wrote on Twitter in October, Sterger said part of her interview process included a strip club outing with Matthew Berry, who was interviewing as a contributor for The Fantasy Show, in Charlotte in 2006, and being brought up to ESPN headquarters in Bristol, Conn., in 2008 for what she described as a bogus interview. In an interview with SI.com in October, Will Carroll, a sportswriter specializing in the coverage of medical issues who has worked for ESPN, Sports Illustrated, Bleacher Report and other publications, confirmed he was in Charlotte at the strip club outing in 2006. He said he was brought to Charlotte to talk to ESPN talent coordinators and that Sterger was also trying out for shows during the Charlotte trip. Carroll eventually became an on-air member of The Fantasy Show, a short-lived ESPN program that ran for 11 episodes in 2006. He said that Sterger told him that ESPN managers admonished her for going to a strip club the next day and that she believed it impacted her chances on that show.
Given the passage of time and the relevant statutes of limitation, it’s unlikely that incidents taking place in the 2000s could give rise to a winnable legal claim in 2017. However, as a more general point, Title VII of the Civil Rights Act of 1964 protects job applicants from pre-employment discrimination on the basis of sex, among other protected categories. It is a law that all employers ought to consider when interviewing candidates.
ESPN declined making a senior management executive available to SI.com on the contents of The Boston Globe story. A ESPN spokesperson said that “our investigation is ongoing” regarding Berry. An ESPN spokeperson also said that Buccigross and McQuade both continue in their current roles.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.