An Employment Lawyer’s Take on the Barstool Sports Contract Controversy

Elika Sadeghi drew loads of attention last week for posting an employment contract offered to her by Barstool Sports which asked her to explicitly acknowledge that she would be working in a climate where she might be exposed to “nudity, sexual scenarios, racial epithets, suggestive gestures, profanity and references to stereotypes,” and to “expressly agree and represent” that she did not object to “such speech and conduct” and did not find it objectionable.

In response, Barstool Sports founder Dave Portnoy posted a video in which he raged about Ms. Sadeghi’s actions, saying she was trying to make herself a part of a story that had nothing to do with her, that Barstool did not allow people to “grope” other employees and therefore, “We’re not Harvey Weinstein,” saying to Ms. Sadeghi “Well, f*** you for making us part of this story,” and concluding with “Hey Elika: keep your name off our lips” and “this is friggin’ garbage” as he walked angrily off tape.

During the video, Mr. Portnoy also explained the contract Ms. Sadeghi was asked to sign as a clause that “basically said she couldn’t sue us over offensive remarks, whether it be sex, race, creed, whatever,” which he termed “boilerplate stuff.” Mr. Portnoy went on to say:

“You can’t be offended by eating ass jokes, 69 jokes, Jew jokes. You just can’t. Cause we do it 24/7.”

dave portnoy, elika sadeghi, barstool sports

Is Offensive Okay When It’s Part of Your Brand?

Among the comments and tweets that are making the rounds on this issue is the question: why would somebody expect any less of Barstool Sports, an outlet that appears quite proud of its “brand” as a place that embraces offensive comments- as Mr. Portnoy himself says: “we do it 24/7.”

It’s an understandable question, but does not get Barstool off the hook in this situation.  After all, there are many workplaces that tolerate legally unacceptable behavior- sometimes those employers get sued, but people still work there.

Can Employees Legally Concede Workplace Harassment in Advance?

The question of “what do you really expect?” is also a red herring- the real question is whether an employee can agree ahead of time to be sexually or racially harassed without objection, and whether employers can self-select their brand and culture even if it means essentially exempting themselves from discrimination and harassment laws.

I am hard-pressed to come up with any answer but “no” to those questions.

State and Federal Law Say No

Massachusetts and federal law recognize sexual harassment as a form of sex discrimination, and prohibit it. Massachusetts law also affirmatively requires all employers to “promote a workplace free of sexual harassment” and implement training and written policies to achieve that end. All employers, not “all employers except those whose employees have agreed otherwise.”

A useful analogy can be found in the wage and hour laws.  Of course an employer can make a contract with employees about how much they are paid, but cannot pay them less than the minimum wage the law requires just because they agree to it.  An employer can make its own policies about hours worked, but cannot require a minor to work more hours than allowed by law. An employer’s own internal safety policies cannot excuse that workplace from minimum safety standards and requirements set by OSHA.

For similar reasons, it is hard to imagine this kind of “consent to climate” agreement having any impact on a court’s analysis of whether workplace behavior violated state or federal discrimination and harassment laws.

Barstool Doesn’t Think They’re Out of Line

Barstool says that is not what this is about, that they have a policy prohibiting sexual harassment in the workplace, and, as Mr. Portnoy says, people don’t “grope” people at Barstool (perhaps Mr. Portnoy forgot, or perhaps he never knew, that there are many, many forms of sexual harassment that do not involve physical contact).

According to Barstool, therefore, the language presented to Ms. Sadeghi was about their content and content creation, not behavior in the workplace.  And because their content is intentionally offensive, you have to consent to that to work for the company.

Is it common?  I don’t know.  Mr. Portnoy cited Saturday Night Live as an example, but as of this writing SNL had not responded to a journalist inquiry about the accuracy of that statement.

Barstool Has a Problem for Three Reasons

But even if there is some kind of standard clause in the entertainment industry, Barstool still has a problem.  First, this contract asked Ms. Sadeghi to consent to a “climate” that included exposure to “nudity, sexual scenarios, racial epithets, suggestive gestures, profanity and references to stereotypes,” and confirm that she did not object to “such speech and conduct.”  On its face, this is not limited to the content of the shows and written material produced by Barstool, but includes the workplace climate and conduct of other Barstool employees.

Second, I am at a loss to understand how a company can have an effective “zero tolerance harassment policy,” as Barstool claims to have, where misogyny, racism, and anti-Semitism are things that occur “24/7,” as Mr. Portnoy so proudly announced, and where these attitudes are so central to the company’s brand and climate that they feel compelled to have prospective employees sign the kind of agreement that was presented to Ms. Sadeghi.

Third, one cannot ignore the fury with which Ms. Sadeghi’s disclosure was greeted.  Why is this important?  Let’s back up for a minute and consider the laws that prohibit retaliation against an employee for making a claim of sexual harassment.  It’s not as if lawmakers just woke up one morning with the bright idea to pass such a law- these provisions were born out of a long history of employers reacting to such claims not by investigating them and dealing with any underlying misconduct, but by attempting to discredit, demoralize, and punish the employee who complained.  Those behaviors still exist.

Their Actions and Words Speak Equally as Loud

In my experience as an employment lawyer, the managers who are actually committed to a “zero tolerance” policy investigate and remediate, while the ones who may know they have a problem, or may in fact be the problem, go on the offensive.

The first kind of manager may not have responded at all to Ms. Sadeghi’s disclosure, or may have responded simply by stating that the contract language was solely about Barstools “creative content,” not the workplace, and that the company took issues of workplace climate and sexual harassment very seriously and wished Ms. Sadeghi good luck in her future endeavors.

Barstool, however, went immediately to the internet to call Ms. Sadeghi a “fraud,” to say “thank God” that she declined the job because “it would have been a friggin’ nightmare to work with that girl,” and “Well, f*** you for making us part of this story.”

I do not know if Barstool employees have experienced sexual harassment, though it would not be a great surprise if they had.

I do know this: if someone were to come forward with such a claim, Mr. Portnoy’s now viral and proud assertion that “we do this 24/7,” the attempt to get employees to agree to conduct that would violate the law, and Mr. Portnoy’s assertion that asking employees to agree not to sue the company over offensive remarks was “boilerplate stuff,” are the kinds of things employment lawyers dream of finding in discovery.

So, I suppose the plaintiffs’ employment bar should thank Barstool and Mr. Portnoy, and the lawyers he blames for drafting Ms. Sadeghi’s employment contract, for making their jobs easier.

Barstool: You Are Part of the Story

A final word to Barstool: you are part of the story.  You are part of the story because your brand is built on a “24/7” climate that, if it does spill over from the podcasts and blogs to the interactions between employees, would be unlawful.  You are part of the story because when your highly questionable contract was called into question, you went immediately on the attack against Ms. Sadeghi, in a way that more women than you think immediately recognize as a “go-to” response to allegations about sexual harassment.

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