Update: 6th Circuit finds thedirty.com not liable for defamatory comments of its users

Judge Julia Gibbons, writing for the Sixth Circuit Court of Appeals, articulated the basis for that Court’s reversal of a closely-watched defamation case involving the liability of a website provider, thedirty.com, for the defamatory comments posted by its users about a former Cincinnatti Bengals cheerleader.  You can read the Order here.

The lower Court, a district court in Kentucky, had held that although a website provider is usually not liable under Section 230 of the Communications Decency Act (“CDA”), that service provider becomes responsible if they “develop” the content, or if they “in some way specifically encourage[] the development of what is offensive about the content.”  Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1010-11 (E.D. Ky. 2012).  The Plaintiff was awarded $338,000.00 in damages.

It turns out, that judgment was not to be; it was vacated by this Sixth Circuit opinion.

The Sixth Circuit, in its ruling yesterday, adopted the “material contribution test” to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.”  This test is taken from Ninth Circuit case law and is articulated as follows:

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

A material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.

As to the facts of this case, which you can read about here, the Sixth Circuit found that thedirty.com and its owner had not “materially contributed” to the defamation.

Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. See Batzel, 333 F.3d at 1035 (holding that an editor of an email newsletter who received and published allegedly actionable information, adding a short headnote, was immune under § 230 because an editor’s changes to the length and spelling of third-party content do not contribute to the libelousness of the message).

Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts. The CDA expressly bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.’

 

The Court wraps up its analysis with the following observation.  The owner of thedirty.com does not require users to post illegal or actionable content as a “condition of use.”  Also, the Court opines, the fact that the site owner may have “ratified” or “approved” the defamatory statements does not mean he “developed” them as contemplated by the newly adopted “material contribution test.”

KOMO wins public records victory in dispute with Seattle Police Department

The Washington State Supreme Court has determined that the Seattle Police Department violated Washington’s Public Records Act by not providing a list of retained videos recorded by dash cams on police cruisers.  The list of videos was requested as part of a public records request by KOMO-TV reporter Tracy Vedder, which included a request for officer logs and specific video recordings.   The Court did not find that the SPD violated the Act by refusing to provide log sheets corresponding to their dash cam videos, because the request was too broad and the department did not keep such logs anymore.  The Court also established that the police department could refuse to provide certain videos if they contained material that were subject to certain statutory exceptions, like those which protect private recorded conversations.

TVSpy has a synopsis here.  You can read the Order here.

NB:  The Court awarded KOMO its attorney’s fees and remanded for further proceedings.

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CNN lawsuit claims gender discrimination on basis of sexual orientation

A former CNN employee has sued the company and his supervisors alleging, among other things, discrimination on the basis of gender and retaliation under Title VII.  The NY Daily News and FTVlive both have pieces on this new suit.  The Complaint itself, which you can read here, is fascinating, both because it offers a rare behind-the-scenes glimpse and because it gives me an opportunity to discuss “hostile work environment” and protection of gays and lesbians under Title VII of the Civil Rights Act.  The Plaintiff is seeking $5m in compensatory damages, plus punitives.

First, a thumbnail of the Complaint:  William Kane allegedly worked for CNN for ten-plus years before anyone knew he was gay.  During that time, he routinely became known for wearing brightly colored clothing, but was never challenged for it.  Simply put, he claims that once the company found out he was gay, his immediate supervisors began to harass him and that he was ultimately terminated as a result.

Hostile work environment does not mean what you probably think it means.  Ordinarily, it is not a cognizable “cause of action” absent some claim that the “hostile work environment” is a result of some form of unlawful discrimination.  Under federal law, the forms of unlawful discrimination are set forth in Title VII of the Civil Rights Act and are generally limited to race, color, religion, sex, and national origin.  Simply put, sex means gender, it does not ordinarily mean orientation.  Note: The EEOC has held that discrimination against an individual because that person is transgender is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964.  Also, critically, beginning in 2003, New York state law does expressly prohibit workplace discrimination on the basis of sexual orientation.

This blog post is just about the federal law claims.

To make a case of “hostile work environment” under Title VII, you usually have to prove that you have been subjected to severe or pervasive treatment enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive on the basis of race, color, religion, sex, or national origin.

This case alleges, among other claims, that the Plaintiff, William Kane, was subjected to such an environment on the basis of his sex.  More specifically, his complaint alleges that he “was treated differently because he refused to act in conformity with male stereotypes.”  The Second Circuit, comprised in part by New York state, has addressed whether Title VII applies in such situations.

The Second Circuit’s analysis reflects the state of the law across much of the country and illustrates the real challenges this Plaintiff will face in a New York federal court:

Title VII protects a limited class of persons from discrimination. Protection is limited to individuals who are discriminated on the basis of “race, color, religion, sex, or national origin.” Sexual orientation is not included in the statutory protected class. In Simonton v. Runyon, 232 F.3d 33 (2d Cir.2000), this Court upheld a district court’s dismissal of a Title VII claim based on sexual orientation because, “[t]he law is well-settled in this circuit and in all others to have reached the question that [the plaintiff] has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.” The Court noted that the legislative history was scant on whether sexual orientation should be included in the category of “sex,” but the Court concluded, based on numerous bills attempting to extend Title VII protection to sexual orientation, that Congress did not intend to include sexual orientation in Title VII’s current form.

Based on this Court’s interpretation of Title VII in Simonton, Kiley may not bring a claim under Title VII for discrimination based on sexual orientation. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217-18 (2d Cir.2005) (“[T]o the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, [the plaintiff] cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.”).

Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, at *1-2 (2nd Cir. 2008)(some internal citation omitted).

 

That case goes on to read:

 

Plaintiffs may bring Title VII claims alleging that an adverse employment decision was due in part to sexual stereotyping by the employer. However, a plaintiff may not use a gender stereotyping claim to “bootstrap protection for sexual orientation into Title VII.”

Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, at *2 (2nd Cir. 2008)(emphasis added)(internal citation omitted).

More analysis from another Second Circuit case:

When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to “bootstrap protection for sexual orientation into Title VII.” See also Lex K. Larson, 10 Employment Discrimination § 168.10[1] (2d ed. 2003) (“It is not uncommon for plaintiffs to fall short in their Title VII pursuits because courts find their arguments to be sexual orientation (or other unprotected) allegations masquerading as gender stereotyping claims.”); Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003) (counseling “gay plaintiffs bringing claims under Title VII[to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality”).

 

Similarly, district courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes. See Martin v. New York State Dep’t of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y.2002) ( “The torment endured by Martin … [t]he name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.”); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *3 n. 11 (W.D.N.Y. June 25, 2002) (stating in dicta that although “being called a ‘lesbian’ [may be] based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of sexual stereotype,” plaintiff’s gender stereotyping claim is “somewhat undermined” to the extent that it rests upon being called a lesbian); Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiff’s “Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality”), aff’d without opinion, 50 Fed.Appx. 458 (2d Cir.2002); cf. Kay v. Independence Blue Cross, 2003 WL 21197289, at *5 (E.D.Pa. May 16, 2003) (holding that gay male plaintiff “has shown that he was subjected to adverse treatment because of his co-workers[‘] perceptions that he was a ‘miss prissy’ or less than [a] ‘real man.’ As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay’s masculinity, rendering the conduct gender stereotyping actionable under Title VII.”); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D.Or.2002) (lesbian plaintiff stated Title VII claim by alleging discrimination based upon her failure to conform to supervisor’s “stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”).

Dawson v. Bumble & Bumble, 398 F.3d 211, at *218-19 (2nd Cir. 2005) (some internal citation omitted).

OK – Now on to the details of this case

According to the Complaint, William Kane was a contractor for CNN until 2004 and then became a full-time employee, working in the NY Technical Operations Department.  During his entire time there (until 2013), he alleges that he dressed in brightly colored clothing and that CNN had no dress code for employees.  His company ID card photos featured him attired in a long sleeved bright pink shirt.  He claims no one said a word to him about his attire for the majority of his tenure.  He alleges that in 2011 one of his supervisors began to challenge his attire.

56. On or about April 12, 2011, Defendant McLoughlin offered Plaintiff a bribe of $100.00 in cash “to go to TJ Maxx” if Plaintiff would agree to change out of his blue track suit because McLoughlin alleged that journalist Mr. Piers Morgan said that it was a distraction to him.

57. Plaintiff refused the aformentioned $100.00 cash bribe. Instead of accepting such bribe, the Plaintiff went to his locker and placed his black CNN sweatshirt over his blue track suit.

58. Journalist, Piers Morgan denied ever complaining to anyone that Plaintiff’s attire was a distraction. Mr. Morgan invited Plaintiff into his office. While in the office, Plaintiff indicated to Mr. Morgan “Piers, I was told that my track suits were a distraction to you.” Mr. Morgan replied “Who said this?” Plaintiff responded that it was his direct manager, “McLoughlin” and Mr. Morgan stated to Plaintiff “I never said this. I love your track suits.” Mr. Morgan told Plaintiff that he liked his tracksuits because he was a big soccer fan and encouraged Plaintiff to continue to wear them in front of Plaintiff’s colleagues stating exactly inside CNN-NY’s Studio 71, where his studio aired, “I want Billy to wear the brightest colored clothing when working on my show.”

66. On or about October 18, 2012, Plaintiff wore a black Mariachi suit to work and wore it for the duration of his 8 hour shift. He was never asked to change, cover it up or not to wear it in the future. In fact, Plaintiff received many compliments including CNN Journalist, Fareed Zakaria, who wore Plaintiff’s sombrero because he was doing a story that day called “Misconceptions of Mexico” on his “GPS” (“Global Public Square”) show on CNN International. Mr. Zakaria personally asked Plaintiff to meet his executive producer which the Plaintiff was “proudly shown off” and Zakaria stated “Isn’t this suit incredible?”

CAmanpour

On October 18, 2012, Plaintiff used a CNN phone to call his fiance in Mexico. When his supervisor asked why he called Mexico, and was told that the call was to a fiance, he allegedly congratulated Plaintiff and said “what’s her name?” Plaintiff explained it was not a “her” it was a “he.” This was the first time he told his direct supervisor he was gay.

Later that day, the supervisor allegedly told him not to wear mariachi suits to work because they were “too flamboyant for a male in our department.” The supervisor also allegedly told him he would be better suited for work in the “Entertainment or Make-Up Department.”

In the Complaint, Plaintiff alleges that his supervisor suggested the transfer because of “the stereotypical belief that there are more homosexuals in the entertainment and/or makeup department at CNN.”

Co-workers became aware of the situation thereafter. He alleges that CNN talent like Erin Burnett and Anderson Cooper, learned of the “treatment” to which he was exposed and offered their support.

Plaintiff apparently filed myriad complaints with CNN’s human resources department during the subsequent months.

After having filed these complaints, but without any action having been taken, Plaintiff allegedly again called his fiance in Mexico using CNN’s phone.  He claims the supervisor called him into a private meeting and allegedly berated him for it:

104. Plaintiff felt trapped in a room with Silva against his will and threatened that he would not let Plaintiff out until Plaintiff stopped crying. Plaintiff told Silva to leave him alone and that he was not doing anything different than anyone in the department and was never treated in this manner prior to telling Silva that he was gay.

105. Plaintiff again requested that Defendant Silva “Open the door.” Defendant Silva stated “Not until you stop crying.” The plaintiff responded “You made me cry. I don’t care if people see me crying. If they ask, they will know why — because of you and your harassment.” Silva eventually did open the door and the Plaintiff left whilst in tears.

109. As a result of Plaintiff’s complaints to Human resources against Defendant Silva, Defendant companies involuntarily removed Plaintiff from his regular position as an “A2” studio operator handling the microphones for the journalist and guest, and was placed in training in a different area utilized for entry level employees known as “MVID”.

110. Control 52 (MVID) is a room where there is no interaction with CNN journalists or guests. Furthermore, Control Room 52 is completely different and not at all similar to the Plaintiff’s prior position and job description in violation of FMLA.

Plaintiff claims that his supervisor continued to challenge his dress for work, at one point telling him his “white suit was ‘too flashy for Erin Burnett.'” He was ordered to change and did so without protest.  The Complaint alleges a series of other disparaging remarks allegedly made by supervisors.

On another occasion, Plaintiff alleges another supervisor wrongfully blamed him for a scheduling error, called him “stupid” and spoke to him in a “hostile and demeaning manner.”

On July 1, 2013, Plaintiff was terminated. On this same date, he alleges the Defendants issued their first employee dress code. He alleges he was replaced by a straight male.

Here is the thrust of the legal action and this is the reason I cited the above authority from the Second Circuit.  The Court in this case will have to look at the following allegations and decide whether this meets their test:

190. Plaintiff was treated differently because he refused to act in conformity with male stereotypes.

191. Commencing upon the first day that Plaintiff informed his supervisor Silva that he was gay, Plaintiff was subjected to inappropriate comments about his sexual orientation and relationship with his husband which affected the terms and conditions of his employment by creating a hostile work environment.

193. Plaintiff was subjected to an impermissible and unrelenting pattern and practice of discrimination, hostile work environment and retaliation by co-workers and Defendants based upon his sexual orientation and in retaliation for Plaintiff’s exercise of his right to complain and whistle blowing.

195. Defendants discriminated against Plaintiff by engaging in severe and pervasive activities constituting gender discrimintation, including, but not limited to, engaging in, condoning and tolerating unfair and sexually motivated actions against homosexual employees within CNN and discrimination against Plaintiff with respect to the terms, conditions and privileges of his employment. The cumulative effect of Defendants’ conduct created an abusive, offensive and contaminated work atmosphere.

When considered against the clear holdings of the Second Circuit, it is arguable whether these allegations meet the standard required there, that “gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’”  That said, I offer no opinion on the merits of the other claims in the Complaint which include claims for retaliation, myriad claims of discrimination under state law, and federal claims for violations of FMLA and ADA, which likely have nothing to do with Plaintiff’s sexual orientation.

Nexstar employees file joint suit alleging age discrimination

Earlier this month, Nexstar removed to federal court a complaint initially filed in state court by two former employees alleging age discrimination.  Both had been terminated in 2013 from their positions at KSEE-TV, the NBC affiliate in Fresno, California.  Plaintiff Faith Sidlow was a longtime anchor at the station and Plaintiff Richard Nitido had been hired in 2012 as Creative Services Director.

Thumbnail:  Both Plaintiffs allege that they were fired as part of a company-wide policy of terminating employees over 40 years old.  They allege that the company claimed that the reason for the terminations was a general reduction in force (RIF), but that the “effect” of the terminations had a “disparate impact” on employees over 40.  They also allege that they asked Nexstar for copies of the policy or plan explaining the RIF, but that Nexstar refused to provide it.

You can read the Notice of Removal, which attaches the original state court lawsuits here.

Some procedural observations:

The Complaint, and an amended complaint, were filed in Fresno County Superior Court in April of this year and alleged claims of age discrimination (retaliation and wrongful termination against public policy) under California state law (specifically, the Fair Employment and Housing Act).  Interestingly, it appears that the Plaintiffs did not file their claims with the EEOC under the Age Discrimination in Employment Act (ADEA), but instead with the California state agency under California state law (the California Department of Fair Employment and Housing, their “mini-EEOC”).  Evidently, they requested a right-to-sue letter and it was issued in February of this year.   (Note:  The EEOC allows you to request a right-to-sue letter after 180 days and may issue one if they do not intend to investigate your charge in the time alloted.  I suspect many state agencies operate the same way).

So, they sued under state law.  Nexstar removed it to federal court on May 2, 2014, claiming diversity jurisdiction (when the parties are from different states and the amount in controversy exceeds $75,000).  If the Plaintiffs do not fight the removal, and the federal court retains jurisdiction, it will mean that the U.S. District Court in California (a federal court) will be adjudicating the case exclusively based on the claims arising under California state law.

The Plaintiffs are asking for compensatory damages, punitive damages, and attorney’s fees.

Damages available to Plaintiffs under California state law and federal law are different.  Under California’s state anti-discrimination statutes, compensatory damages are generally unlimited.  You can also get punitives and attorney’s fees.  Under ADEA however, you are limited to recovering according to a formula (backpay, liquidated damages, front pay, attorney’s fees) and cannot recover punitive damages.  Defenses to claims of discrimination under California state law and federal law are also different.  It may be harder for an employer to defend against such claims under state law.

 

UPDATE: Gannett publishes broadcast contracts in KTHV Title VII litigation and the power of the “merger” clause

Gannett and KTHV filed their Motion to Dismiss late last week in the litigation recently commenced by an aggrieved former sports reporter.  Among other arguments, the station group argues that any oral promises made to the Plaintiff are of no legal significance because of the written contracts that he signed and the “merger” clause (also called “integration” clause) contained therein.

In making this argument, the station group attached an affidavit, including all of the Plaintiff’s employment agreements.  They are linked here.

1.  By way of observation, I wish to point out that Gannett filed these contracts without first moving the Court to seal the record.  The effect of this is to introduce into the public record agreements which might contain sensitive information and which might ordinarily be confidential.  I suspect that at least one effect of doing this may be that Gannett has waived any later claim of confidentiality in these documents.

2.  I am posting this particular update not to express any opinion about the Motion to Dismiss, but to point to the power of the merger clause.

In this case, the provision is paragraph 19 of the Agreement and reads as follows:

Entire Agreement.  This Agreement contains the entire agreement of Talent and Station and cancels and supersedes all prior agreements and understandings relating to the employment of Talent by Station.  This Agreement may be changed only in a writing signed by Station and Talent.  The defined terms used in this Agreement have the meanings described herein and in the Letter Agreement.  The parties have executed this Agreement as of the day and year show on the attached Letter Agreement between Station and Talent.

I placed in bold the two sentences you must consider.  In its simplest sense, this means that any oral promises made to Talent by Station are superseded by the written agreement.  It is the rare contract these days that does not include such a provision.  While there are exceptions to every rule (fraud, detrimental reliance, etc.), this case and this Motion show the importance of trying to memorialize those contract terms which are important to you in writing.  Do not take for granted that an employer’s oral promise of promotion, shift change, transfer, or other opportunity is enforceable in the face of one of these provisions.

In this case, the Plaintiff argues that he was promised certain promotions and that he relied on these promises.  The station’s Motion to Dismiss says, among other things, hey, it doesn’t matter what was promised orally, because you signed a written contract AGREEING that oral promises are not enforceable.

This is a reminder that every paragraph in an agreement has some effect.  Again, I am not opining on the merits of this Motion or suggesting that it is a death blow.  There are certainly exceptions to the binding power of this provision.  For example, an allegation that an employer engaged in fraud when he made certain oral promises is an exception in many jurisdictions.

Note:  I am not addressing the other legal arguments in the Motion to Dismiss here, which focus primarily on whether the Plaintiff meets certain pleading standards.

The pros and cons of retaining an agent

For a new journalist, or for one working in a small to mid-sized broadcast market, a call from a talent agent can be as exciting as a job offer. Right or wrong, new journalists rely on agents for their ability to “place” them in good jobs as much, if not more, as they do to protect their interests or to negotiate their contracts.

In general, most U.S. states do not regulate talent agents. There are exceptions: some states require licensure as a talent agency, or registration as an employment agency. Some states have bond requirements. Tennessee and Mississippi have no such requirements. Arkansas, interestingly, does require employment agencies to register with the state Department of Labor and imposes penalties for failing to do so. That said, I am told this is rarely-to-never enforced.

Because journalists often make long-term commitments when retaining agents, I thought it would be helpful to summarize the many pros and occasional cons of agency representation. They are organized in the order in which I think journalists rank their value, but this sequence does not necessarily reflect the actual value to be gained from hiring an agent (which I believe is the agent’s ability and authority to negotiate for you).

Pros:

Headhunter. First and foremost, the best agents and agencies have good relationships with people in the business of hiring. An established agent is familiar with news directors and corporate officers (who may have once been news managers). They know when vacancies at particular stations are about to occur, either as a result of these relationships or because they are, themselves, moving one of their own clients out. For example, if our hypothetical agent represents the investigative reporter at Station A, and places him in a new job at Station B, he knows (perhaps before even the news director at Station A) that Station A is about to have an investigative vacancy. He is then, in theory, uniquely poised to pitch one of his other clients as a candidate for the pending vacancy at Station A.

It is my belief, albeit untested, that this is the primary reason young journalists hire agents. They hope and expect that the agent will place them in a good position in a challenging marketplace, and then move them up to larger and larger markets at the end of each contract cycle. While this may occur, it is an enormous burden to place on an agent, and probably deprecates the real value they bring to the relationship.

Negotiation. Many agents are lawyers; many are not. Many large agencies have lawyers on staff. Even non-lawyer agents are familiar with the common issues facing employees in broadcast contract negotiations and are familiar with those employment conditions which may be alterable or negotiated. An agent who has a pre-existing relationship with a particular employer can perhaps use that relationship to your advantage (assuming it is positive). An agent can and should make demands/requests that you, as a prospective employee, are not comfortable making. After all, you are the one who is going to have to face that news director every day. The agent can be the “bad” guy, the demanding one. I would bet that unrepresented employees more frequently accept the initial offer as stated, whereas represented employees, more often than not, are able to negotiate even moderately improved terms.

In my view, this is the true value of a talent agent, lawyer or non-lawyer. Remember that you are going to have to live with your contract for two to three years. If we accept as true that most young employment candidates do not possess the confidence to “negotiate” for themselves, it follows then that good representation can improve your circumstances for a significant period of time.

It is also true that there remain many employers who flat-out refuse to negotiate with agents or attorneys. They will only negotiate with the candidate. In my mind, this situation typifies the imbalances that exist in the broadcast industry, and strips the candidate of what little bargaining power he may actually have. Now, he is left alone, in an intensely competitive marketplace, negotiating with a strong-willed employer for a job coveted by many, many others. This situation is real, however, and you should be prepared for it.

Career guidance/management. Most, if not all, talent agents routinely engage their clients in reviews of their work. They give advice about writing, delivery, editing, presentation, voice, etc. In many instances, they will cut reels for their clients; the client sends stories periodically and the agency cuts together a resume reel, which will then be forwarded on by the agent to prospective employers. Agents offer therapy when conflicts arise between you and your boss. They offer advice about dispute resolution. They offer encouragement when necessary and affirmation when and where appropriate.

Taxes. At one point, some of the larger agencies also offered end of year tax services through their lawyers and CPA’s on staff. This was offered gratis to more significant clients. While this may still occur, I suspect it is the minority of clients who enjoy this benefit.

 

Cons:

Commissions. Agents usually operate on a commission basis, although there are exceptions to this rule. When commissions are involved, agency contracts usually entitle the agent to five to ten percent of your monthly gross wages. In my experience, middle market clients usually should expect to pay an average of seven percent, give or take. Some of the larger market and network clients may be bound to agreements requiring them to pay their agents ten percent (see Geraldo Rivera’s agreement).

Many agencies will require your employer to send your paychecks directly to them, from which they extract their pre-tax percentage, and from which they remit your balance. This can be disquieting to some, but it happens.

In some cases, the commission rate is negotiable.

I should also mention that there are some agents who do not charge commissions. I suspect that these are lawyers, who will bill you by the hour for their legal services (or who may bill flat rates for specific services). Rick Carr, who works out of Denver, is evidently one of these lawyers. His web site is tvcontract.com. I do not know Rick, but his web site was recently brought to my attention and appears to describe this situation.

Commissions that survive the initial contract cycle. Many, if not most commission-based agent agreements provide that if the agent is involved in placing you at Station A, and you renew with Station A at the end of your contract cycle, the agent remains entitled to receive commissions for as long as you stay there.

Surely, this is fair, if the agent is continuing to provide services to you during your time at Station A. Imagine, however, the scenario, where an agent gets you that first job and then does nothing else for you for 10 years, either because you are now able to negotiate your own renewals, or because the new News Director has an anti-agent attitude. Should you still have to give that agent 7% of your salary even though he or she had nothing to do with your renewal/s?

While I think strong legal arguments could be made about the lack of consideration (that thing you are getting from the agent in exchange for his commission), the only way you are going to get out of that obligation is to sue your agent or separate (by agreement) from your agent.

I mention this scenario because it certainly does arise with some frequency and may be frustrating for many clients who do not want to get sideways with their agent or agency. In my experience, most agents are reasonable about this issue. Like you, agents have reputations to protect. They want people to hire them and, most importantly, they want their clients (and prospective clients) to trust them and to contribute to the good will associated with their agency. If you are in a situation like this, and it does not feel fair, talk to your agent about it. In most cases, I believe your agent will find a way to do the right thing. In my opinion, if the agent has provided you any of the services described above (negotiation, career guidance, tape review, advice, etc.) then he or she is probably entitled to continuing commissions, even if he or she was not directly involved in your most recent contract renewal. By contrast, if you have not heard from your agent for ten years, other than to receive invoice-related correspondence, you may have an argument for separation and you should discuss this with your agent.

Agents want to preserve good relationships. It may seem strange that I’ve included this as a con, because it is also a pro. It is nevertheless a truism that for an agent to be successful, he must maintain strong relationships with those on the employment side. Clients know this and it has, traditionally, raised questions about whether the agent is truly always going to act in the client’s best interest when to do so may alienate the agent from a particular news director.

Obviously, an agent should act in his client’s best interests. Lawyers have legally enforceable duties to do so. As a result of this perceived “conflict” though, clients sometimes worry when things get tough, whether their agent will go to the mattresses.

Imagine you are fired from a large market station and your employer offers you a sum of money in exchange for your release of your right to sue them for some form of discrimination. Your agent will probably get involved in trying to negotiate an appropriate sum – i.e., the settlement. What if you cannot agree or feel you have a strong legal claim for employment discrimination? I have not investigated this, but I suspect that your agent may not want to have his or her agency represent you in bringing suit against a media group. My suspicion is that they may help you to evaluate the risks and benefits of bringing suit, that they will refer you out to a law firm, and that they will not be involved in any way in paying for your legal action. I have reviewed a number of agent contracts and have never seen a provision whereby an agent agrees to bring suit on your behalf. That is not to say they do not exist, just that I have not seen one.

To be clear, I think the agent’s goal when their client is fired is to avoid litigation. The industry is small and litigation can be expensive and damaging. I think good agents can get good results for their clients without having to commence an EEOC charge or litigation. That said, when companies become unreasonable or intractable, an agent unwilling to become adverse with your employer may become powerless to improve your circumstances.

The purpose of this post is not to confuse, but rather to set forth the competing arguments for and against hiring an agent.  These are the issues you should expect to face and the concerns you should expect to have.  A good agent can be fantastic for your career.  As with your employment agreement though, you will likely be asked to commit contractually to that agent for a fixed period of time.  Your relationship with your agent will be better and stronger if you have considered these issues beforehand.

Update: Fisher/Sinclair counters FLSA class action with claim for prevailing party attorney’s fees

In February, I told you about a class action suit against Fisher and Sinclair over alleged FLSA violations.  At issue in that suit, and of concern to many broadcast groups, is whether certain classes of journalists are exempt under the FLSA’s overtime requirements.

You can read my original post here.

In March, the broadcast groups answered the Complaint and responded with two short, but meaningful Counterclaims.  You can read the Answer and Counterclaims here.  Simply put, Sinclair and Fisher are asking for prevailing party’s attorney’s fees under Oregon Statute, if the Plaintiff class loses its case.

The Counterclaims:

1. Defendants incorporate all of the matters admitted and alleged above. Defendants are entitled to their reasonable attorney’s fees under ORS 653.055(4), to the extent that
 ORS 653.055 applies, and to the extent Defendants are the prevailing party on claims under 
ORS 653.055.

2. Defendants are entitled to reasonable attorney’s fees under ORS 20.105, to the extent it is the prevailing party on claims and grounds asserted by Plaintiff without an objectively reasonable basis.

This is significant because it effectively shifts the behind-the-scenes burden back to the Plaintiffs to make sure their suit is not frivolous.  Often, plaintiffs’ attorneys will take cases like these on a contingency basis (NB:  I know NOTHING about the nature of the payment arrangement in this case).  As a result of the Counterclaims, the Plaintiffs now have real exposure of having to actually spend significant amounts of money if they lose.

Of the above two statutes cited, the second one is far more broad (and subjective):

Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis

(1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(emphasis added).

Update: KTHV sports reporter amends complaint to add retaliation after April firing

Last month, I directed you to a Title VII (and Arkansas Human Rights Act) claim against Little Rock television station KTHV and Gannett, its parent company. As I pointed out, it was unclear at the time what the Plaintiff’s status was, as he had been removed from the station web site and the trades were silent about any separation between the sports reporter and the station.

You can read further background here.  In his Complaint, the sports reporter alleged racism in hiring and promotion.

We now know that the reporter was terminated by the station (and the company) on April 15, 2014.

Evidently, upon being terminated, the Plaintiff rushed a charge of retaliation to the Little Rock EEOC office, which not twenty (20) days later, issued a “right to sue” letter on that charge.  Accordingly, on May 8, 2014, the Plaintiff amended his charge to include a cause of action for retaliation under these statutes.

Retaliation is one of the most common claims facing employers under the anti-discrimination statutes.  There is a rebuttable presumption of retaliation in some jurisdictions if the firing happens in close proximity to the alleged underlying discrimination.  In this case, the Plaintiff argues he was fired within two months of filing suit, and that the “temporal proximity” suggests retaliation.

You can read the Second Amended Complaint here.

An excerpt:

34.  On April 15, 2014, a short period after filing his EEOC claim and this federal lawsuit, Gannett abruptly and unilaterally terminated Plaintiff. Gannett, as part of its retaliatory scheme, retaliated against the Plaintiff and unilaterally terminated the Plaintiff from employment before Plaintiff’s brief contract extension had even run through the end of April.

35. Gannett terminated Plaintiff. However, Plaintiff, at all relevant times, had sought to be promoted to the position of prime-time anchor and director with Gannett and remain in employment with Gannett. Gannett’s acts were direct and affirmative employment retaliatory acts to terminate Plaintiff for filing a charge of race discrimination with EEOC and for seeking remedy in the law and equity by filing this federal lawsuit for being denied a promotion on the basis of Plaintiff’s race.  As a false cover or “pretext” to mask and conceal Gannett’s retaliation against Plaintiff for Plaintiff exercising his lawful rights to file a federal lawsuit and seek remedy for employment discrimination, Gannett brought up false, misleading, bogus and untrue allegations against the Plaintiff at the time of its unlawful, retaliatory termination.

 

What a journalism student should expect in his first broadcast employment contract

The following is provided for educational purposes only and is designed to identify the key terms that are ubiquitous in broadcast employment agreements. At various points during this summary, I will highlight those items that may be negotiable, recognizing, of course, that new journalists are generally approaching the business relationship from a weaker bargaining position because these jobs are in such high demand.

Job Description/Duties: This is obviously going to be a provision of significant importance to someone who wants to appear on-air. Increasingly, broadcast contracts that include a description of your “job duties” will only describe you as an “employee” and not as an on-air reporter, or mainline anchorperson (for example). The reasons for this favor the employer: They do not want to hire you for an on-air position only to find that your employment in that capacity does not work out for some reason. At the start of your career, you should expect to find contract language that basically requires you to commit to work exclusively as an employee for your new employer to perform full-times services “as reasonably may be required by Company” in the employer’s discretion. It means what it says.

While you may be responding to a job posting for a dayside reporter position, your contract will likely only establish that you are an employee, hired to do whatever the company needs you to do. I should add that you will rarely see an employer agree to contract language that sets forth your shift. If things change, they will want to retain the flexibility to move you around. If, for example, you have become a lead story reporter, working Monday through Friday dayside, and the weekend reporter quits, you may be reassigned to work weekends indefinitely. That said, in larger markets, employers may be willing to negotiate this language. I am certainly aware of reporters whose contracts provide that they are being retained as “investigative reporters” or anchors who are hired to “anchor”. In these cases, the contracts usually provide that if the employer elects to reassign you, the contract “re-opens” for further negotiation (and new payment terms are ostensibly negotiated). Again, this is the exception to the rule. The general rule, particularly when you are starting out, is that the company is hiring you to do whatever it needs you to do during the “term” of the agreement.

Additionally, I’ve written elsewhere on this web site, there is a legal divide over whether journalists should be entitled to overtime under the Fair Labor Standards Act (“FLSA”). For this reason, and DESPITE the fact that the potential employer is unlikely to “name” your job title in the employment agreement, you are increasingly likely to see language in the agreement whereby you agree that you are “exempt” from the overtime requirements under the FLSA. Legally, your agreement to being classified as “exempt” does not let the employer off the hook for violating federal law (i.e., if you should be getting overtime, and are not), but you should nevertheless keep an eye out for this language and know what it means. If you are “exempt”, your new employer does not have to pay you overtime. If you are non-exempt, then you are likely to be paid an hourly rate and asked to keep track of your time on a weekly basis. For this reason, many broadcast companies are including language in their employment agreements requiring you to agree that you are exempt. The thinking, I suppose, is that if you agree to such language in the contract, you may hesitate to sue under the FLSA for overtime you SHOULD have been paid. While it may have a chilling effect on potential lawsuits, you cannot “contract away” your FLSA rights under federal law.

Term: This refers to the “length” of your employment and the standard employment agreement in the broadcast industry typically lasts from two to three years. Much to the chagrin of young journalists, who simply want to build a tape and move on to larger markets, the stations want to hold on to you for as long as they can. Remember, the longer you are there, the more valuable you become to them. Just as you learn how to use the equipment, how to pitch and develop story ideas, and how to generate stories, the community learns to recognize your face. Even in markets which do not rely on Nielsen meters, but which conduct occasional surveys, viewers are asked about who they remember, who they identify with a particular station. This is why you are not likely to encounter a one-year employment agreement. It is simply not worth it for a news department to teach the community that it can trust you, to make you a part of that station’s brand, only to have you disappear. Admittedly, the length of these agreements often intimidates young journalists, particularly because they are moving to small, remote cities to launch their careers. Depending on who the potential employer is, you may be able to negotiate certain “outs”, which could have the effect of releasing you from your employment upon the occurrence of a particular event (a job offer from a top-75 market, a spousal relocation, or a job offer from a non-broadcast related employer, for example). In my experience, small market employers understand the motility in the industry, and are often willing to negotiate reasonable “market-specific” outs into broadcast agreements. So, for example, if you sign a three-year deal in Market 170, the employer may agree to give you an “out” (or release you) during your third year, if you can show that you have a bona fide job offer from a station in a top-100 market.

Salary or rate of pay: This is typically the “hot” item for young journalists, who believe that if they can negotiate an additional two or three thousand dollars in annual compensation, the other contract provisions become less important. The truth of the matter is that entry level salaries have always been low, regardless of your pedigree. For your first job in a small market, you should expect to make from $18,000 to $28,000, the greater amounts typically reserved for line producers or specialty reporters/anchors. In 2011, a survey of recent journalism graduates found median salaries hovered in the $30k range. Typically, your first contract will also offer nominal percentage (3-5%) increases from year to year. Stations (and station groups) differ in their flexibility on compensation. First, there is the group of stations that will not budge. They have a line-item on their budget for new reporters and they will not let their news directors stray from it. Next, there is a group of news directors who have a lot of flexibility. They will make you a low-end offer with the expectation that they may have to come up a bit (and will leave some money aside just in case). Depending on the timing, their needs and your appeal to them, they may even exceed what they have set aside. The truth is that most new reporters do not attempt to negotiate, but are so grateful for the opportunity and so fearful of alienating an interested employer, that they pounce at the first offer. It is my opinion that you should ALWAYS find a delicate way of asking the offeror if there is any flexibility in their contract, because there usually is somewhere. Finally, there is, increasingly, a group of employers who are hiring new talent as non-exempt employees (under the FLSA) with offers of hourly pay plus overtime. Like salary, hourly rates may be negotiable as well. I think this is where television compensation is going and I do not think it is a terrible thing. You will most definitely work overtime; it always feels better to be compensated for it.

Vacation: Traditionally, the most you can expect here is two weeks per year. Increasingly, stations are requiring employees to “earn” vacation time through weeks or months worked, which means you do not get to take it until you have been there for a certain amount of time. The effect is that you will likely work your first six months without getting a week off. Alternatively, a number of station groups have adopted a “paid time off” (“PTO”) structure, which basically gives you a certain amount of time off each year which includes sick time and vacation time. You use it however you want to use it, but once you have exceeded your PTO, you are taking time off without being paid for it. Because variances in vacation agreements make scheduling news staff difficult, employers are often uncomfortable about negotiating this. That said, you will often hear stories about the longtime anchors who have contractual agreements to be off on their birthday every year, or a particular holiday. Vacation time IS negotiable, but for new journalists, it may be a hard pitch.

Re-Assignability: This is an area about which new journalists should be sensitive. It is very, very common for employers to reserve the right to re-assign you. As mentioned above, this makes sense from a management standpoint. If I hire you to be a reporter, and only discover after hiring you that you cannot write, or cannot get through a live shot without stumbling over yourself, why should I be contractually required to keep putting you on my air? You can understand this logic. The problem is that it has resulted in language that grants very broad discretion to employers to reassign people. Executive producers get re-assigned to produce overnight shows. Anchors become one-man bands. Horror stories abound about re-assignment. Such provisions usually require you to “perform such other duties including, without limitation, producing, photography/videography, editing, writing, reporting, managing assignments, as well as other newsroom tasks as may be identified by Employer in Employer’s sole and absolute discretion.” This almost always appears in a broadcast contract in one form or another. Although there are various legal theories that might support a claim based on an oral promise, you should know that when you sign an employment agreement, you are agreeing to the language contained within the four corners of the agreement, and NOT to any oral promises made to you by the news director.

In fact, there is usually a provision in employment agreements that says just this; it is called a merger clause or an integration clause, and usually appears under the heading “Entire Agreement.” The idea of this provision is that you are contractually agreeing that this writing – the contract – represents the entire agreement between the parties.

Work for Hire: This is a provision that is not new to the world of contracts, but has been popping up in broadcast employment agreements with greater frequency. It derives from the concept that when you create something, you ordinarily own the copyright interest in that something. Increasingly, broadcast agreements have these provisions where you agree that anything you create, during the scope of your employment, belongs to the company (and not you). For example, if you come up with a great franchise idea while on the job? It belongs to the station. What if you are a reporter who has created a personal blog? Depending on the express language of this provision (and whether you created and contributed to your blog on your own time), that blog might just be the intellectual property of the station.

Termination for “Cause”: This usually comprises an entire section in employment agreements and it provides for when you can be fired for cause (as opposed to being fired for no reason at all). You need to be concerned with how “cause” is defined. Ordinarily, it includes a breach of the agreement, including a refusal to perform assigned tasks, failure to comply with handbook policies, conduct which hurts the reputation of the employer (think DUI), insubordination, criminal conduct, etc. You get the picture. The problem arises when employment agreements include even broader language in their definitions of cause. I recently reviewed a contract that provided that an employer could fire an employee if the newscast to which he was assigned was eliminated. Other contracts include “ethical lapses” in the definition of “cause.” Obviously, the broader the language, the more SUBJECTIVE the language, the more discretion the employer has to terminate you for cause, even if it is undeserved. You should read closely this section in your employment agreement and understand just how much latitude you are giving your new boss to terminate you. If they fire you for cause, you are not ordinarily entitled to any severance benefits and, depending on state law and the station’s stated reason for dismissing you, may be ineligible for unemployment.

Termination w/out Cause: This is the other route to termination. Stations almost always reserve the right to let you go, for no reason at all, with a certain amount of notice. In my experience, this usually IS negotiable, and you should give some thought to this before you sign. This provision usually says that the station may fire you at any time without cause, “with no less than ___ days prior written notice, or in lieu of such notice, upon payment of the base salary for such notice period.” If your employer decides to let you go, but has no good reason to do it, this provision effectively allows him to buy you out. This happens a lot and, where salary may not be negotiable, this may very well be.

Liquidated Damages: The concept behind liquidated damages provisions is to acknowledge that when you first hire someone you have no true sense of what damage will be caused to you in the event of their breach. Translated: If I hire John Smith tomorrow to be my reporter for the next three years and he breaches the contract in year two (and quits), I cannot say with any certainty how much damage his quitting will cost me. Perhaps I have promoted him to main anchor? Perhaps I have spent enormous amounts of promotional time marketing him? Perhaps he broke a huge national story and the community loves him?

Conversely, perhaps he is a dud. Perhaps, I planned big things for him, but he just could not deliver, or my budget was cut, or he started phoning it in.

Courts loathe uncertainty in contract damages and so a “liquidated damages” provision is an attempt by the parties to agree, AT THE TIME OF CONTRACT, to a reasonably foreseeable damages amount in the event of a subsequent breach by the employee.

Particularly with new journalists, this is a difficult number to predict. An employer should try to anticipate their plans for the employee, both in terms of assignment and marketing, and should try to fairly and reasonably estimate what it would cost them if the employee walked out. Because this is basically the employee’s legal way to buy himself out of a contract, employers will sometimes make these amounts unmanageable. For example, you may be hired as a $22,000 per year general assignment reporter with a $10,000 liquidated damages provision. Why should you have to pay that much to get out of your agreement? Has the employer really invested that much in you? Will it cost them that much to recruit someone to replace you? Or, altenatively, is the employer just trying to prohibit you from leaving?

Pay attention to this language! It may be negotiable and, particularly during your early years, your ability to move on may be directly tethered to this amount.

“Outs”: These usually never appear in a first offer, but are often available upon request. The concept is that you are bound to the contract as it stands, unless some specific event arises which would allow you to resign without breach. If you find the potential employer is not budging on salary or liquidated damages, you might consider requesting one of these narrow-drafted “outs” to be added to your agreement. An example of “out” language is as follows: “Station agrees that at anytime during this agreement, if the Employee receives a written offer of full-time employment from a television station located within any of the fifty (50) largest television markets in the U.S. which does not compete with Station, it will permit the Employee to be released from his employment obligation with Station upon sixty (60) days written notice.” Stations may be amenable to giving you an “out” if it is sufficiently narrow and tailored to you, and does not put them in a position of establishing a murky precedent. You need to be creative here. Market outs, like the one I described above, are common. Imagine your potential employer will not agree to give you a top-50 market out. Perhaps, if you explain that there is one specific market, where your family is, the employer will let you have an out in the event you get an offer there. Perhaps you can persuade the employer to give you an out if your spouse is professionally relocated or if your mother’s hypothetical illness worsens or if you get an offer from an East Coast employer or if you leave the business. These are all things to consider as you decide whether to consider making a two to three year commitment.

Non-Competition: You should expect to see a non-compete provision in any broadcast employment agreement you sign, even if it is for part-time work. In practice, these provisions prevent you from going to a competitor in the same market. While they are always operative DURING the term of your agreement, their power is the fact that they SURVIVE the termination of your agreement. Typically, an on-air reporter may sign a non-compete that precludes him from going to work for a competitor for six months after the end of his employment. Television lore is rife with stories about reporters who “cross the street” after their contracts are up and are made to “wait out their non-competes.”

You should know that non-compete agreements, formally called restrictive covenants, are often disputed under state law in different industries. Courts try to figure out whether they are reasonable limitations on time and geography, while balancing the right of an individual to earn a living with that individual’s possession of proprietary station knowledge (and the risk they will take it across the street). You can read more about them elsewhere on this site. Simply put, an unreasonable non-compete is likely not enforceable in a court of law, but the question of reasonableness is one for the court to measure. So, one party has to take it to court to enforce it or for a declaratory judgment that it is unenforceable. The employees cannot typically afford lawyers to do this and stations rarely sue to enforce. These provisions nevertheless have a chilling effect. Competitors are often rightfully leery about messing with job candidates from across the street who have non-compete agreements. Usually, when disputes arise over these provisions, they are therefore resolved informally between station and employee (via settlement).

Regardless, you need to pay close attention to the non-compete in your employment agreement. You need to know what it means. If you are working in a city you love, but which only has three television stations, your non-compete will affect your ability to leverage yourself with your current employer because they know you cannot easily cross the street. Additionally, many non-competes are drafted to survive the termination of an employment agreement EVEN IF YOU ARE TERMINATED. In other words, the station can decide it does not want you anymore and can, simultaneously, prevent you from going to a competitor. Again, this is a murky area of the law; ultimately, a court will have to decide if such a restriction is “reasonable” in light of the circumstances at play.

Conflict resolution/Choice of Law: Briefly, this is a provision that usually falls at the end of your employment contract which seeks to control how the parties manage disputes in the event of a breach, or a termination, etc. The basic provision will say that all disputes should be tried by a court of law in the state where the station sits. I have also seen provisions which designate the state where the corporate parent is located (which will certainly inconvience the employee). Imagine if you feel you’ve been retaliated against in Georgia, but this provision says you can only sue in an Illinois state court. Increasingly too, employment contracts include arbitration provisions, which basically prevent you from suing all together. Instead, you have to go through an arbitral procedure, which can be expensive and slow, and which might favor the employer.

This is generally non-negotiable and typically part of a station group’s boilerplate employment agreement. You should, nevertheless, know what your agreement will allow you to do if a problem arises.

What happens at the end: Obviously, your contract is going to have an expiration date. This is the end of the “Term.” Some agreements will go into detail about what happens after that point. Do you have to give notice even if your contract is set to automatically expire? Will it automatically renew if you do not? Some contracts provide for short-term continuation agreements and some provide for automatic year-to-year renewals. Some companies also retain a right of “last refusal” in the event you get an offer from a new employer at the end of your term with the first employer. You must be sensitive to this before the critical time comes, so that you know how to comply and how to accurately represent your availability to your next potential employer.

Conclusion: I recognize that the jobs are few and the candidates are many. There is a legal concept that envisions agreements such as these, particularly where the effect is to deprive the employee of any real bargaining power, where you feel you have no choice but to accept the deal (to “take it or leave it”). These are called “contracts of adhesion” and, unfortunately, they comprise a large part of the dealing in this industry. If you are mindful about the various moving parts however, and if you can learn to negotiate without overreaching, you can turn an unreasonable agreement into something tolerable and even beneficial.

BROADCASTK

KTHV sports reporter sues broadcast group alleging racism in hiring and promotion

Earlier this year, an Arkansas sports reporter/weekend anchor sued his current employer, Gannett-owned KTHV alleging, among other things, violations of Title VII and the Arkansas Civil Rights Act, as well as sundry other contract causes of action. All of the separate claims derive from allegations of racial discrimination, even the contract claims.

You can read the Complaint here. The Plaintiff attached a copy of his EEOC charge, as well as a 1999 suit filed against Gannett by another ostensibly aggrieved former reporter which appears to have been settled.  (Note:  Arkansas is a part of the 8th Circuit Court of Appeals.  This case was filed in federal court in Little Rock, Arkansas).  Also, while originally filed as a class action, the suit has been amended to name only the individual plaintiff.

arkcase

To thumbnail: Plaintiff is an African-American male who was hired in 2003 as a producer/reporter and alleges that management promised that he would be promoted, over time, to the number one sports position. I gather from the pleadings that there is no writing that confirms this. Plaintiff claims Station continued to make promises to him, throughout his employment, that he would be promoted. Plaintiff claims that, while at KTHV, he was offered more lucrative opportunities on two separate occasions in larger markets, by WEWS (Cleveland) and KPNX (Phoenix); in the first instance, he claims he turned the position down in reliance on KTHV’s promises to promote him, and in the second instance, he claims KPNX elected not to hire him because of adverse remarks made by Station management to KPNX management.

Needless to say, he was never promoted to the number one sports position at KTHV.

As part of his case, Plaintiff alleges a number of different things about Gannett. He alleges that Gannett has an all-white corporate board, generally all-white management, favors all-white anchors on its newscasts and, most importantly, justifies the appointment of all white anchors through the use of “subjective criteria” like focus groups and “corporate restructuring reasoning”, etc. He further alleges that there is no documentation indicating a “standardization” of the appointment and promotion process.

I do not know anything about the merit of his claims or the composition of Gannett’s corporate structure or whether there is a pattern or practice of discrimination in favor of white employees. This is not a commentary on the merits of this lawsuit.

I am posting about it here because the following points are interesting to me and are worth noting:

  1. The employee filed his EEOC charge and filed suit while he was STILL employed at the station. As of the time of posting, his bio is not featured on the station web site.  I have no information as to why he is off the site or whether he is still employed with KTHV. In the broadcast industry though, it is unusual for employees to sue their employers during the course of their employment. The industry is small and journalists worry about alienating themselves.  On the other hand, if they terminated him after his filing of an EEOC charge, they would be exposed to liability for retaliation under Title VII.
  2. The language of the Complaint itself seems to weave between wanting to accuse the station and wanting to accuse the ownership group.  This vacillation highlights important strategic questions associated with these suits.  Who do we sue?  The station or the whole company?  Although Gannett is the named Defendant, the allegations seem generally focused on management at the Little Rock station.  Ultimately, this is a suit against Gannett and Gannett will have to participate in discovery. Keep in mind that the question of whether Gannett discriminates may be different if you look at the station in isolation, as opposed to looking at how Gannett does business at all of its properties. Obviously, each side may feel differently – and may argue differently – about the proper scope of the litigation.
  3. Finally, the issue of how a television station hires and promotes is still a sticky one, in the eighth circuit, AND beyond.  This case really highlights that, and is the reason I chose to feature it here.

Unless you have “disparate treatment” (open express statements or incidences of discrimination), a plaintiff in one of these cases has to try to prove what is called “disparate impact.”  Essentially, this means that while an employer’s policies may be racially neutral on their face, those policies or the conduct of management may have a discriminatory effect.  These cases are obviously harder to prove, and are typically reliant on circumstantial evidence (like, for example, the fact that most or all of a station’s anchors happen to be white).

To bring one of these cases, an employee has to be able to prove certain basic facts.  That gets the employee in the door.  The burden then shifts to the employer.  If an employer can show that its decision to not promote a particular individual is supported by a “legitimate, non-discriminatory business purpose” and the employee cannot disprove that, usually, the employer can prevail.

But how does a TV station prove that its decision was not discriminatory?  Usually, that station’s lawyers provide the employee’s personnel file which, ideally, is rife with documented policy violations.  In this case, Plaintiff seems to believe that Gannett is going to say that it did not promote him because of focus group data, but that this data is really a “pretext” for racial animus.  Pretext is a legal term of art.  In essence, the Plaintiff needs to show that the station’s explanations for not giving him the job he wanted are bogus.

The problem in television is that management decisions to put people on the air are often based on ratings, research and focus group data.  More than many other industries, these ostensibly “objective” measurements really do have “subjective” values at their core.

The leading case on television discrimination happens to be an 8th Circuit case called Craft v. Metromedia, Inc.  Although not entirely on point, the Craft case shows that courts seem to understand the subjective nature of television staffing. Among other things, the Craft court was considering a sex-related discrimination claim, wherein Christine Craft alleged the station’s “standards” (dress, make-up, hair, etc.) for on-air personnel were stricter and more strictly enforced as to females than as to males. The 8th Circuit gave stations some wiggle-room in its opinion on this “grooming” issue:

 Courts have recognized that the appearance of a company’s employees may contribute greatly to the company’s image and success with the public and thus that a reasonable dress or grooming code is a proper management prerogative. Evidence showed a particular concern with appearance in television; the district court stated that reasonable appearance requirements were “obviously critical” to KMBC’s economic well-being; and even Craft admitted she recognized that television was a visual medium and that on-air personnel would need to wear appropriate clothes and makeup. While we believe the record shows an overemphasis by KMBC on appearance, we are not the proper forum in which to debate the relationship between newsgathering and dissemination and considerations of appearance and presentation—i.e., questions of substance versus image—in television journalism. The record does not leave us with the “definite and firm conviction” that the district court erred or adopted an impermissible view of the evidence when it concluded that KMBC’s appearance standards were shaped only by neutral professional and technical considerations and not by any stereotypical notions of female roles and images.

Craft v. Metromedia, Inc., 766 F.2d 1205, 1215-16 (8th Cir. 1985)(internal citation omitted).

So, on the issue of “grooming,” the 8th Circuit seems to acknowledge that stations need to accommodate their viewers’ differing tastes, but stops just short of affirmatively allowing different rules for the different sexes.

In fact, it is a fairly well-recognized rule in the area of employment discrimination, that “customer preference” is not a defense to a claim of discrimination. The Craft case acknowledges this:

 Craft’s argument is that these differing standards as to females reflect customer preferences, which a number of cases have held cannot justify discriminatory practices.

Craft v. Metromedia, Inc.. 766 F.2d at 1214-15.

Think about what that means in this context. A television station can probably not blame its viewers for discriminatory staffing decisions (i.e., “we are a business and our viewers do not like to get their news from African-Americans.”).

Here’s another 8th Circuit analysis of the use of “customer preference” as a defense:

 Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388–89 (5th Cir.) (customer preference may only be taken into account when it goes to a matter affecting the company’s ability to perform the primary necessary function or service it offers, rather than a tangential aspect of that service or function), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982) (holding that customer preference for slim female flight attendants did not justify a discriminatory policy where weight was unrelated to job performance), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983). The existence of a beard on the face of a delivery man does not affect in any manner Domino’s ability to make or deliver pizzas to their customers. Customer preference, which is at best weakly shown by Domino’s survey, is clearly not a colorable business justification defense in this case. Significantly, the survey makes no showing that customers would order less pizza in the absence of a strictly enforced no-beard rule.

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993).

 So, what does this all mean?

First, you should be able to tell that the law is still a little wobbly on what a station can use as a viable defense to a discrimination claim.  The best defense is always going to be that a decision was race-neutral, that it was performance-based and that the employee had multiple opportunities to improve his or her position but suffered an adverse employment action as a result of progressive discipline.

It will not help if, as Plaintiff here alleges, Gannett’s corporate and station management structures are dominated by white employees and if most of Gannett’s anchors across the country are white.  If this case is not settled, then discovery will likely focus on Gannett’s composition across the company.

Second, if, in this case, Gannett does in fact intend to rely on focus group data and on “corporate restructuring reasoning”, as Plaintiff seems to believe, the Court will have to drill down on the focus group testing to determine if the sampling and the questions are themselves in some way discriminatory.  Because “customer preference” is not a defense, the Court will have to determine if the customer testing, the focus groups, are inherently racist or discriminatory.  To win on what appears to be his primary theory, Plaintiff will have to show that Station’s focus group testing was not race-neutral, but that the sampling and the questions were tainted with racial animus.  Moreover, he will have to show that Gannett consistently deployed this animus at its stations across the company.

Again, I reference this case because it is current and broadcast-related, and because it gives me an opportunity to discuss some of the nuances of the law in this area.  I cannot, and would not, speak to the merits of an individual pending case, other than to point out that these cases create significant challenges for both sides.