While private employers can normally demote, suspend or even terminate employees for expressing viewpoints that violate company policy or employment contracts, ESPN anchor Sage Steele maintains her network exceeded its legal authority in regulating her speech. Steele on Thursday sued ESPN Productions Inc. and its parent, Walt Disney Company, for what she portrays as violations of both Connecticut law and her contract and for intentionally and negligently inflicting emotional distress.
In a complaint filed in a Connecticut Superior Court, Steele argues ESPN broke the law by effectively demoting her in the aftermath of her controversial remarks on Jay Cutler’s podcast last September. Among other points that drew attention, Steele criticized former President Barack Obama for selecting “Black” on the U.S. census, saying “his Black dad was nowhere to be found.” Steele also ridiculed her employer for its COVID-19 vaccine mandate as “sick” and “scary.”
Steele wasn’t fired or suspended, but she says she was disciplined by, among other things, having to apologize, losing out on coveted assignments and feeling bullied by colleagues. In that regard, Steele views ESPN’s response as damaging her employment relationship and career.
Through her attorney, Bryan Freedman, Steele also maintains that ESPN has been hypocritical in the manner in which it punishes employees for controversial speech. She argues ESPN has “repeatedly ignored commentary from other employees—both before and after they penalized Steele for expressing her opinion—that was more political and more controversial than the comments made by Steele, and that in some cases was overtly disrespectful to Steele.” To illustrate, Steele draws attention to ESPN declining to punish Dan LeBatard in 2019 for referring to then-President Donald Trump as an “old white man” who “instigated” racial animus. She insists that ESPN applies rules differently for people with more progressive or liberal viewpoints.
Steele also contends that even if she wasn’t explicitly suspended, “it was widely reported in the media that ESPN had ‘suspended’ Steele for her comments on the podcast.” She lambastes ESPN for doing “nothing to rebut the widespread reports that it had suspended or otherwise disciplined Steele for her comments.”
Steele’s lawsuit faces several hurdles.
For starters, the First Amendment prevents the government from punishing a person for their speech, but it doesn’t prevent a private employer from punishing an employee for their speech. So long as a private employer follows its own policies, which often compel “progressive discipline” (that is, the first punishment is a warning and opportunity to remedy misconduct issues before the employer can apply harsher measures), the employer has substantial authority in assigning work and dictating employee tasks.
Steele, like other ESPN employees, is also governed by company conduct and media policies. ESPN’s social media policy, for example, cautions its employees to avoid public engagement that contains “overt political or other biases that would threaten our or your credibility with the public.” Steele’s employment contract—which she contends ESPN breached—might also contain provisions regarding expressions that ESPN and Walt Disney deem undermining of fiduciary interests. Even if Steele can show ESPN is arguably inconsistent in applying workplace policies, ESPN enjoys significant discretion in how it applies those policies.
It’s also possible that Steele’s employment contract contains a mandatory mediation provision or mandatory arbitration provision, or both. Either would be raised by ESPN in defense pleadings and would direct the presiding judge to dismiss Steele’s lawsuit until she has exhausted her contractual remedies.
ESPN, furthermore, has a workplace history of firing or punishing employees for engaging in controversial speech. In 2016, the network fired baseball broadcaster Curt Schilling after he shared an anti-transgender meme on social media. A year later, ESPN suspended anchor Linda Cohn for criticizing the network’s handling of cultural topics during a radio show. That same year, ESPN suspended anchor Jemele Hill for a combination of tweets that ridiculed Trump and urged advertisers to boycott the Dallas Cowboys. ESPN might assert that Steele, 49, was undoubtedly on notice of these policies since she has been with the network for 15 years and seen her colleagues disciplined.
But Steele has a potential ace in the hole in the form of a Connecticut statute that forbids employers from punishing employees when they engage in speech protected by the First Amendment. Steele can maintain that her comments, while controversial, fall within the statute’s parameters.
The statute, however, contains an important qualification: the protection only applies if the employee’s speech “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” ESPN might argue that Steele violated company policy or her employment contract, or both, by ridiculing a former president’s racial identity and expressing hostility towards company policy. Steele, meanwhile, could insist that the company exceeded its contractual authority and mistreated her.
In a statement to the Wall Street Journal, ESPN said, “Sage remains a valued contributor on some of ESPN’s highest profile content, including the recent Masters telecasts and anchoring our noon SportsCenter.”
ESPN will answer the complaint in the coming weeks.