Both ESPN and the Atlanta Hawks are being sued by ex-employees, both of whom are women. Both lawsuits either claim sexual harrassment or racial discrimination. Both lawsuits allege behavior, that for the most part, originates with men. Both women expect damages to soothe their suffering. But can they prove it?
As a famous laywer once said, “it’s not if it’s true that matters, but can you prove it is true.” So far, in the infancy of the lawsuits- ESPN was hit with theirs in early March and the Hawks this week- we are not dealing with facts that are proven since depostions have yet to be taken and witnesses have not been sworn to the tell the truth under oath or face perjury. There are allegations in both complaints that have to be established as true or false.
A year and a half ago, Derrick Rose was sued in civil court by an ex-girlfriend who wanted financial damages for suffering at the hands of Rose. A jury found him not responsible. There are no famous athletes on trial in these two cases, just a lot of monied white men who have reputations at stake. Expect a vigorous defense rather than a settlement. A settlement, by default, implies there was some merit to the accusations and no company wants the stain of harrassment or abuse on record, despite a non-disclosure agreement.
Adrienne Lawrence, a black woman, came to ESPN after a law career. She was integrated into the ESPN culture by way of ESPN’s Fellowshp Program. She was employed for two years, 2015-17. She was not an anchor but an expert who spoke on air regarding legal issues. In her complaint, she describes the culture at ESPN as toxic. She says male employees watched porn on their computers, they had a scorecard for women, they communicated inappropriate sexual remarks, they retaliated when women complained.
Lawrence alleges that ESPN anchor John Buccigross sent her pictures of himself that Lawrence and her lawyer describe as “grooming.” Grooming is a behavior preferred by abusers where they try to make the victim comfortable with the abuse by manipulating them with kindness as a strategy. Lawrence says she has four witnesses to back up her claims of hostility against women and sexual harrassment. She identified Jemele Hill as a witness to the corrosive culture, someone who had an issue with a work employee that Human Resources ignored. As soon as the court filing became public, Hill denied the set of events that Lawrence described. Hill admitted she and [Chris Berman] had an issue that was resolved, which refutes Lawrence’s claim.
In defense of their not renewing Lawrence’s contract, ESPN says 100 employees were not retained and they had more experience than Lawrence. They deny that the culture at ESPN is hostile to women and that Lawrence was sexually harrassed.
Margo Kline, a white woman, was fired by the Atlanta Hawks after five years as a Community Development Coordinator. She is blaming a black man for her termination, External Affairs Director David Lee. Her firing, she concludes, is because she is white. She is alleging that Lee only promotes those who are black and therefore she was discriminated against. In her complaint, she alleges that Lee made sacrastic jokes about “white culture”. She also claims the blacks who were promoted were less qualified than the whites who were bypassed.
Her work, she alleges, was unfairly scrutinized and she was ridiculed because of it. She makes mention of the fact that her co-workers were told not to speak to her; she was isolated. She was given a final warning about her work performance and three weeks later, in March of 2017, she was fired. She says she asked her supervisors how she could improve but was fired before she could make changes. She filed a discrimination complaint with the EEOC (Equal, Employment Opportunity Commission). She wants a jury trial.
The Hawks deny all the charges. They said, “The case was quickly dismissed at the EEOC level. We deny these claims and will vigorously defend against them.”
If both women win, they are in line for millions in punitive damages. But can they win claims against huge business conglomerates with high priced civil attorneys experienced at impeaching witnesses and winning discrimination cases?
The Supreme Court has made it more difficult to win discrimination cases. In Vance vs. Ball State, they ruled that only a supervisor who has the ability to hire and fire and promote and demote is capable of discriminating. In the Hawks case, the actual job title and responsibilities of David Lee, the man Margo Kline says discriminated against her, will determine if her claim can survive the court definition of supervisor. What is a supervisor is a gray area and just because they give out job assignments and look over your work doesn’t mean they can be held liable for discrimination, according to the Supreme Court.
For a hostile work environment to exist in the legal definition it must be proven that the harrassment was pervasive and it affected performance and that the employer knew about the harrassment and did nothing. Did Adrienne Lawrence make complaints to Human Resources about the porn watching men and their comments when they were at their desks? She talks about their graphic sexual comments regarding women at ESPN but was a supervisor apprised of any of it? Did she tell a supervisor she was uncomfortable and they then disregarded her with a boys will be boys shrug?
Being sexually harrassed means Adrienne Lawrence endured unwelcome sexual advances, requests for sexual favors and verbal or physical inappropriate touching. Lawrence has to prove that the contact with John Buccigross was unwanted and unwelcome and that the hostile environment at ESPN that she describes as vulgar was detrimental to her. The burden of proof in sexual harrassment cases where there is no sexual exchange (quid pro quo), sex for work favors, is extremely high.
If both cases proceed far enough to go to a jury, it comes back to the basic court reality: who do you believe? Juries are unpredictable. They come to trials as flawed beings living in the human world. Many white jurors, without knowing it, are influenced by the racial empathy gap.
The racial empathy gap is the disparity of empathy whites have for blacks as opposed to themselves. Researach, neurological and social science, has proven that whites have less empathy for black women in particular because they believe they are stronger and can handle adversity more so than white women. How Adrienne Lawrence will be judged as a black woman is different than how Margo Kline will be judged as a white woman. But then Margo Kline has to overcome her white privilege perception with black jurors, many of whom don’t believe blacks have the stuctural power to discriminate.
The plaintiffs in both cases have to be seen as victims who were treated unfairly and should be compensated, rather than employees who are angry that they were let go and someone else took their place and now they want revenge.
Neither ESPN nor the Atlanta Hawks have to prove they are likeable. They just have to prove they don’t discriminate, they treat everyone equally, they don’t harrass and they handle complaints swiftly.
Adrienne Lawrence and Margo Kline have more to prove. They have to defend their reputation and demonstrate they were victimized.