The notorious tow-lot video featuring ESPN reporter Britt McHenry has sparked plenty of strong reactions among media and fans. According to TMZ (via TheBigLead.com), strong reactions have occurred within ESPN, too.
Multiple employees of the four-letter network reportedly think McHenry should be and/or will be fired in the aftermath of her four-letter, mean-spirited, I’m-better-than-you rant caught on video — and on audio — at an undisclosed location at an unknown date and time.
Suspended for a week by ESPN, some unnamed co-workers think McHenry eventually will be suspended for good. Regardless of how this plays out, let’s take an opportunity on a somewhat slow Sunday to take a closer look at some of the risks raised by taking employment action against someone for an incident occurring beyond the boundaries of his or her employment.
There’s a saying in the legal profession that bad facts make bad law. In other words, when something happens that cries out for a specific outcome, the rules can get twisted to lead to that outcome without regard to the precedent it sets. In this specific case, the precedent possibly becomes that anything an on-air employee at ESPN says or does while off the clock can be the basis for discipline or discharge, even without behavior that would result in an arrest.
Should that be the standard for any employee? I’ve argued for years that the NFL shouldn’t reach into the urine of a player to determine whether he is or isn’t smoking marijuana or using other recreational drugs that don’t enhance performance. Why should ESPN be able to impose discipline based whether an on-air employee treats another person rudely while not at work?
And what amounts to rude behavior? Refusing to sign an autograph? Not leaving enough of a tip at a restaurant? Bumping into someone without saying, “Excuse me”?
Yes, McHenry played the “I’m in the news” card, but she never said she works for ESPN and there’s no reason to believe she was working for ESPN at the time she made those remarks. Does every ESPN on-air employee now have to worry about anything and everything they say in any setting, even when they’re not working?
On one hand, if ESPN employees don’t treat other people the way McHenry treated the person behind the counter at the tow lot, it won’t be a problem. On the other hand, why does any employer have the right to take action against someone for something they did on their own time when that behavior has no relevance to the person’s job performance?
There’s also the question of whether McHenry knew her words were being recorded. While it doesn’t excuse the behavior, surveillance cameras typically capture only video and not audio because the recording of audio amounts to a potential wiretapping violation. Even in a jurisdiction where only one party must consent to the conversation being record (in this case, the tow-lot employee), a private conversation between two people at the counter while the tow-lot employee was away from the window would potentially violate the law. In McHenry’s case, the original video was presented in a way that suggests she saw the camera before saying some of the worst things she said; if she had no reason to believe the camera also had a microphone, her decision to continue with the tirade after spotting the camera becomes a bit less confusing.
Again, none of this makes her conduct acceptable. The real question becomes whether the disclosure of the audio and the ensuing embarrassment is punishment enough, or whether ESPN has the ability to take action against her for something that happened away from work. The audience can choose not to like or respect her; is that sufficient (absent evidence of widespread channel-changing when she appears on screen) to justify taking her off the air?
Then there are the notorious Chris Berman on-set but off-air videos. From a profanity-laced rant against the crew for moving around while he was on the air to an extended explanation of how to smuggle codeine from Canada to creepy flirtations with a female colleague, Berman never faced any scrutiny or discipline when comments he made appeared online. While he never singled out any one person for demeaning comments, Berman’s behavior happened while he was on the clock for ESPN. McHenry’s didn’t.
There’s no easy answer to this one. Regardless of whether McHenry deserves to be heavily criticized for her comments to the tow-lot employee (and the court of public opinion has concluded that she does), the question of whether she deserves to be suspended or eventually fired by ESPN becomes far more complicated when considering how the precedent will apply going forward — and when contemplating how this standard would have or should have applied in past cases of recorded comments made by other ESPN employees under circumstances far more closely connected to the employment relationship.