Summary: Whatever the social implications of the New York Jets‘ treatment of female sideline reporter Ines Sainz, the incident probably would not have qualified as “sexual harassment” in a legally actionable sense vs. the Jets, although she might have a viable claim against her employer (if subject to jurisdiction of US court) where employer markets her as a sex object and sends her, provocatively dressed, into a locker room full of naked men (under Oregon law, which would apply if the Jets played in Portland instead of NY). Actionable or not, the Jets’ actions were contemptible and entirely consistent with what one would expect from that franchise given its recent shenanigans.
In the interests of full disclosure, let me note first off that I am a fan of the New England Patriots and have never had any love for the New York Jets. With that bit out of the way, the controversy involving the New York Jets’ reported treatment of female reporter Ines Sainz presents a teaching moment about sexual harassment from a legal standpoint.
For those of you lost in the wilderness for the last 3 days, Ms. Sainz is a reporter for the Mexican broadcasting company TV Azteca. A quick Google search of her name reveals several provocative images, sprinkled among taglines including “World’s Hottest Female Sports Reporters”, “Hottest sports reporter in Mexico,” etc. You get the picture.
According to ESPN, TV Azteca markets Ms. Sainz both as a reporter and a model, and the company’s website features provocative images of her. TV Azeteca’s female reporters have previously worn wedding gowns at Super Bowl press days in proposal to Patriots’ QB Tom Brady, and Ms. Sainz has previously held biceps-measurment contests for NFL players and allowed herself to be carried off-field on players’ shoulders.
After Monday night’s 1-point beatdown (you had to have seen the highlights to understand) of they Jets at the hands of Ray Lewis and the Baltimore Ravens, Ms. Sainz reportedly entered the Jets’ locker room, featuring football players in various states of undress, to interview Mark Sanchez, the Jets’ quarterback. At that point, Jets’ staff started throwing footballs in the general direction of Ms. Sainz, in order to give players a pretext to get close to her. This reportedly produced an “uncomfortable” situation of sufficient note as to warrant an internal investigation.
There has since been much talk about whether the Jets had subjected Ms. Sainz to “sexual harassment.” NBC’s “Today” show produced a rather scattered piece this morning touching on many dimensions of the story. While the Jets/Sainz episode strikes chords of social equality, feminism, gender roles, and political correctness, we will leave those topics to their respective experts. We would like to address only the legal merits of the term “sexual harassment” as it applies to this story. More properly, as it would apply under the laws of the Great State of Oregon.
“Sexual Harassment” may have all sorts of colloquial connotations, but at law it is a term of art. Under Oregon law, the Bureau of Labor and Industries must find several factors in order to hold an employer liable for sexual harassment:
(1) The respondent [alleged wrongdoer] is an employer as defined by statute;
(2) The complainant was employed by the respondent;
(3) The complainant is a member of a protected class (sex);
(4) The respondent or the respondent’s agent, supervisory employee, or nonemployee made unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, directed at the complainant because of the complainant’s sex;
(5) The conduct unreasonably interfered with the complainant’s work performance or created an intimidating, hostile, or offensive work environment, or submission to the conduct was made an explicit or implicit term or condition of employment;
(6) The respondent knew or should have known of the conduct; and
(7) The complainant was harmed by the conduct [Source: Oregon State Bar]
If the NY Jets were, say, the Portland Jets instead but the facts were otherwise the same, could Ms. Sainz successfully bring a civil claim for “sexual harassment” against them? That is unlikely, because of element #2: The complainant must have been employed by the respondent. Ms. Sainz did not work for the Jets; she worked for TV Azteca. Summary Judgment granted in favor of the Jets.
The more interesting question is whether she could prevail in a sexual harassment suit against her own employer due to the conducts of Jets players and staff. Note that the regulations require that “the respondent or the respondent’s agent, supervisory employee, or NONEMPLOYEE made unwelcome sexual advances.” Arguably, by marketing Ms. Sainz as a sex object and sending her, in alleged provocative dress, into a locker room full of scantily-clad professional football players, TV Azeteca engaged in conduct that would have been prohibited under Oregon law.
At the end of the day, such legal questions are academic. Ms Sainz appears to be a Mexican National and TV Azteca is a Mexican company. A US Court may not be able to claim jurisdiction.
So what do we make about the Jets’ alleged behavior? Legally, it’s almost certainly much ado about nothing. So what’s left? Questions of character, class, respect, professionalism, and image. By those measures, the Jets’ treatment of Ms. Sainz showed a level of class and sophistication one might expect from that organization. These Jets, having won their lone championship sometime before the last ice age, recently declared themselves the next Super Bowl Champions and proceeded to get lit up in their own house, by the very Baltimore defense they maligned, on national TV during the first game of the season.
Here’s rooting for the Patriots this weekend vs. the Jets.