Thursday, October 12, 2017

About that Barstool Sports contract, and contracting around the right to be offended

Twitter highlighted a "Moment" featuring contractual language allegedly used by Barstool Sports:
Predictable Twitter outrage ensued.

What's the point of this clause? I presume that it relates to harassment claims. Harassment is a form of discrimination, and it is prohibited by the workplace anti-discrimination statutes (most notably, Title VII at the federal level). One component of a harassment claim is that the harassment must be objectively offensive to a reasonable person and subjectively offensive to the actual victim.

Logo used in commentary on Barstool Sports,
not authorized use.
A hypothetical: If you show up to work every day and there are people engaged in sexual intercourse right in front of you . . . that's probably a hostile work environment. However, if you work for a porn company, that's pretty much part of the gig (assuming you work in production). That does *not* mean it's impossible to sue for sexual harassment at a porn company though. For example, if an accountant is pressured to sleep with the head of accounting at a porn company - that's still unlawful harassment.

What does the Barstool contract do?

1. It puts potential employees on notice that the creative process (and their end product) includes potentially offensive jokes and speech, and maybe even nudity and "sexual scenarios." I have only a passing familiarity with Barstool . . . it is *not* a porn company, but it does include material that may be offensive. The contract will presumably weed out people who are offended.

2. If an employee tries to file a harassment lawsuit claiming that (s)he was subjectively offended (one of the elements of a harassment claim) by offensive jokes, that employee will be confronted with the contract. It would probably weaken their claim.

What does the Barstool contract not do?

Employees cannot preemptively sign away their rights to sue for harassment or file a charge with the EEOC. If that's what Barstool is trying to do, it will not work. The employees can still pursue harassment claims. I doubt the contract would have any effect on a quid pro quo claim, or a hostile work environment claim premised on harassment personally directed at the employee (there's a not-so-fine line between offensive jokes and commentary for publication, and directed discriminatory harassment).

* This analysis assumes the person signing the contract is an employee and not an independent contractor.