by Joseph Miller, Esq
When ESPN suspended Max Bretos and fired Anthony Federico for using the phrase “chink in the armor” in their coverage of Jeremy Lin and the New York Knicks’ loss to the New Orleans Hornets last Friday, righteous indignation about the dwindling First Amendment ensued. That predictable response is a symptom of the low standard that is set for hosts and pundits. But the First Amendment has nothing to do with this. ESPN’s decision was more likely motivated by the fact that it wanted to avoid an employment discrimination charge by its Asian-American employees.
Kevin Ota, ESPN Digital’s Director of Communications said as much:
“We again apologize, especially to Mr. Lin. His accomplishments are a source of great pride to the Asian-American community, including the Asian-American employees at ESPN.” [emphasis added]
Incendiary talk show host Glenn Beck, who left Fox News after his primetime show lost 400 advertisers and suffered a nearly 40 percent ratings decline following efforts to boycott the show, took to his internet tv station, Glenn Beck TV (GBTV), to defend Mr. Bretos and Mr. Federico.
“Freedom of speech … What they do is they slowly but surely take away … they make you afraid to say something,” Mr. Beck said about “the left.”
“Freedom of speech is in danger here more than anyplace in the world.”
Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of “race, color, religion, sex, or national origin” with respect to their “terms, conditions, or privileges of employment.” When Congress proscribed discrimination with respect to the “terms, conditions or privileges of employment,” it intended to prevent all forms of workplace discrimination, including discrimination creating a hostile or abusive working environment (Meritor Savings Bank v. Vinson). A workplace “permeated with discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” creates a hostile or abusive working environment and thus violates Title VII. However, there is no requirement that the discrimination lead to serious physical or psychological harm to the employee (Harris v. Forklift Systems, Inc.). Whether a working environment is indeed hostile or abusive is determined from the perspective of a reasonable person (i.e. a jury). The same standard applies in the context of race (National R.R. Passenger Corp. v. Morgan).
Eighteen eighty-four in Tennessee—during the Jim Crow era—that’s the earliest case I could find saying that employers, as long as they don’t break the law, can fire employees for any reason (Payne v. The Western & Atlantic Railroad Company). That far predates the start of Mr. Beck’s vast, left-wing conspiracy, which he usually says came about around the time of Hitler.
ESPN was enforcing the law. Employers are not subject to the free speech provisions of the First Amendment, which prohibits the government from abridging the freedom of speech. ESPN was free to interpret the law in any way it thought prudent to prevent the creation of a hostile work environment that would lead to an Equal Employment Opportunity Commission (EEOC) charge. For example, if ESPN had taken no action, it ran the risk that supervisors would have felt emboldened to harass their Asian-American employees. In that case, ESPN would have done nothing to prevent creating a hostile and abusive work environment and would therefore have exposed itself to vicarious liability for the subsequent acts of the supervisor.
ESPN was following the letter of the law and the EEOC’s guidelines for Title VII compliance. After the Supreme Court’s decision in the now infamous Citizens United v. Federal Election Commission, in which it rejected corporate spending limits in political campaigns, its tolerance for hate speech (Snyder v. Phelps), and the fact that Mr. Beck lasted at Fox News as long as he did, it is doubtful that Mr. Beck is really concerned about the United States’ place in the world when it comes to free speech. Perhaps it was Emancipation that Mr. Beck and others think was the catalyst of the vast plot they can’t seem to define.