Below is an article Kevin Wicka wrote in 2011 after the lawsuit was filed.
Editor’s note: Kevin Wicka is an attorney with The Tarantino Law Firm who specializes in employment law and cases involving workplace harassment. In advance of Super Bowl Sunday, he shared his thoughts on one of the most compelling off-field stories from the 2010 NFL season and how it could affect your business.
There is an old saying that it is better to learn from the mistakes of others.
In keeping with that axiom, employers and employees can learn many lessons from the Brett Favre sexual harassment lawsuit that was recently filed by two former massage therapists who were employed by the New York Jets. Certainly there has been no shortage of coverage regarding Favre and the salacious allegations levied against him. However, beyond tabloid entertainment, the case highlights many key issues in employment law.
Christina Scavo and Shannon O’Toole filed a lawsuit in New York State Supreme Court alleging that in the summer of 2008, while working at the New York Jets training camp, they were subjected to inappropriate text messages from then-New York Jets quarterback Brett Favre.
They further allege after having complained of the conduct to Favre and requesting an apology, they were never again called to provide services for the Jets. In addition, there are allegations of various other admissions made in text messages that implied that the Jets had prior knowledge of other similar incidents and the propensities of Favre.
Were the plaintiffs employees of the Jets?
Although there are several key issues in this case, the first issue the plaintiffs will have to overcome is establishing that they were employees of the New York Jets. Both federal and state anti-discrimination statutes require that an employer/employee relationship exist in order for the anti-discrimination statutes to apply. Based on the limited facts available in the complaint, it appears that the Jets may argue that the two plaintiffs were independent contractors and not employees of the team. However, the plaintiffs allege that they were paid via New York Jets’ payroll checks.
The question of what constitutes an independent contractor could be the subject of an entire article. Suffice to say, employers need to be careful that they do not improperly classify an employee as an independent contractor. Misclassification, in either direction, could end up being very costly for an employer.
Employer vicarious liability
A frequent issue in employment cases, as will certainly be an issue in the Favre case, is whether an employer is vicariously liable for the acts of its employee. This is a complicated issue that is beyond the scope of this article. However, there are various defenses available to employers when anti-discrimination/harassment policies and an avenue of complaint are in place for aggrieved employees.
In the Favre case, the plaintiffs allege that the Jets did not have an appropriate anti-sexual harassment policy in place, and/or at least did not make its existence known to the plaintiffs and other women who worked there. Employers can often overcome these types of arguments by training, as well as signed acknowledgments of receipt of the policies.
Although not available under federal law, an employee who discriminates or harasses another employee may be held individually liable under New York’s Human Rights Law. Thus, the employer is not the only one who is potentially exposed in a lawsuit. Importantly, intentional torts (civil wrongs) carry a one- year statute-of-limitation under New York law. However, an action for individual liability under the New York State Human Rights Law can be brought up to three years after the act occurred. This may be persuasive to employees who do not take this subject seriously.
Again, in order for this provision to be applicable, the plaintiffs must establish that they are in fact employees in order to enjoy the protections of state anti-discrimination provisions. Presumably, the plaintiffs in Favre did not include any intentional torts since they were beyond the one-year statute of limitation.
Did the employee complain of the conduct?
A critical issue for an employee who asserts a claim of sexual harassment is that the conduct must be unwanted. Specifically, did the person find the conduct objectionable and would a reasonable person find it objectionable? One of the best ways to show that from the employee’s standpoint is to demonstrate that she complained about the harassment. In particular, did she complain to the employer? This is significant to not only show that the conduct is unwanted, but to potentially comply with an employer’s complaint policy. In the Favre case, the allegations occurred in summer 2008 and the lawsuit was filed at the end of 2010. It is anticipated that the Jets will claim that they did not have notice of the conduct if the plaintiffs did not complain to them about it for almost two years.
It is equally important for an employer to have its managers and designated recipients of harassment complaints trained on how to handle, react to and investigate a complaint. An employer who receives a complaint from an employee that lacks merit may end up being subjected to a successful lawsuit for retaliation if the treatment and subsequent conduct related to that complaint is not handled in the appropriate manner. Significantly, there is a much broader standard for proving a successful retaliation claim than an underlying claim for discrimination or harassment. From the employer’s standpoint, this requires proper training of its managers as far as how to handle such a situation.
The impact of technology on the workplace
The rapidly changing world of technology is having a significant impact in employment law. There are issues that did not exist as recently as a few years ago. As evidenced in the Favre case, the issue of texting was clearly the foundation of many of the allegations. Although not an issue in Favre but a recently recurring one is social media in the workplace. Employees using Facebook and Twitter create different forums where harassment can occur and employee conduct in those forums can have an impact on their employment. More important, these vehicles of communication leave a record that can exist in perpetuity in cyberspace.
The Favre case has provided fodder for the tabloids and late-night talk show hosts. However, it can provide real-life lessons for employers and employees.