When reports first emerged of allegedly inappropriate interactions between Vikings quarterback Brett Favre and former Jets in-house sideline reporter Jenn Sterger, we reported that neither the league nor the Jets provide regular training to players regarding the definition of sexual harassment and the actions that possibly will give rise to it.
On Thursday, Sterger’s manager, Phil Reese, told Dan Patrick that she’ll sue no one if the league suspends Favre, and if the league puts a “program” in place to prevent this from happening again, whatever “this” specifically is. (Reese and lawyer Joseph Conway have since backed off from the “suspend Favre” ultimatum, explaining that any finding of fault on Favre’s part would be sufficient — and that a lawsuit is not inevitable if Favre isn’t found to have engaged in wrongdoing.)
If litigation arises, the fact that the league had no specific sexual harassment training program or policy could work against the Jets and/or the NFL. The absence of a program or policy arguably demonstrates a lack of sensitivity to the problems that possibly can arise when male athletes interact with females they encounter in or through the workplace.
“The corporate world is 25 years ahead of sports,” former Texas athletic director Donna Lopiano recently told the New York Daily News. ”Sports organizations still tolerate major athletes acting like little boys.”
During our recent interview with employment lawyer Richard Gerakitis, who has been working with Favre’s agent, Bus Cook, since September on this matter, Gerakitis defended the absence of a policy.
“There’s no need for a policy,” Gerakitis said. ”They all know sexual harassment is wrong. The program you can put in place is not going to ensure you’re not going to have violations of the law. What it does is nothing more than say, ‘We’ve shown our commitment.’”
Gerakitis provided a persuasive example to prove his point: ”Do you have a policy against displaying the confederate flag?”
But while Gerakitis believes that the NFL employs good practices when it comes to preventing sexual harassment, we believe that the interests of the league and its teams would be best served by the presence of a sexual harassment training program and policy. Most non-lawyers (along with most lawyers) don’t understand the meaning of the term sexual harassment, a general label that encompasses both “quid pro quo” harassment (e.g., a boss using his power over a subordinate to leverage a sexual relationship) and “hostile work environment” harassment, which happens when one worker subjects another worker to severe, pervasive, offensive, and unwelcome behavior or advances.
Though it’s unlikely that Favre will use the Costanza-style “was that wrong?” defense, the reality is that players need to realize the difference between females they encounter in the workplace and females they encounter elsewhere. If someone they met through work is playing “hard to get,” there’s a point at which all efforts to pursue the person should end, or potential liability could arise. A training program and a policy could sensitize players to the reality that there’s a line that they need to avoid crossing.
The significance of the issue to any eventual litigation filed by Sterger is presently unknown. Favre’s camp surely will focus on whether any communications were severe, pervasive, offensive, and/or unwelcome. The question of whether Favre received proper training on what not to do won’t matter absent evidence that sexual harassment occurred.