Barstool Sports offered reporter Elika Sadeghi a two-year contract that specified she’d be subject to offensive speech. Sort of. The whole incident falls apart upon close examination.
As described in The Boston Globe, Sadeghi opted not to take the gig when she read the contract. It included a passage saying she understood that her colleagues at the bawdy NSFW sports site would be discussing offensive and sexual topics. She tweeted a copy of the problematic passage. Here it is:
I understand that [redacted] (“Company”) is involved in the entertainment industry. I further understand that because Company’s business requires a creative working environment, including exposure to offensive speech, I may be exposed to conduct and speech that openly and explicitly relates to sex as well as race, sexual orientation, gender, national origin, religion, disability and age.
I acknowledge that I may be privy to conversations where offensive speech, (e.g. their work, scripts or roles that involve nudity, sexual scenarios, racial epithets, suggestive gestures, profanity and references to stereotypes) is utilized.
I understand and acknowledge that as part of my job I may be exposed to speech and conduct that explicitly relates to sex, sexual orientation, gender, national origin, religion, disability and age.
I expressly agree and represent that I do not object to being exposed to such speech and conduct and do not find it otherwise offensive or objectionable, and that I am willing to work in such an environment.
Let’s look at a few questions around this bit of legalese.
This passage seems clear, but is actually meaningless
On this blog, my primary focus is on brevity and clarity. So the first question is: is this language obfuscatory, or clear?
First off, it’s written almost entirely in the passive voice, using the formulation “I may be exposed to.” This is no coincidence. It puts all the onus on the employee to deal with that exposure, without taking any responsibility for who is doing the exposing. Imagine if it were written in the active voice. It would read as follows:
I understand that Barstool Sports and its employees may expose me to conduct and speech that openly and explicitly relates to sex as well as race, sexual orientation, gender . . . I agree that I do not object to Barstool Sports exposing me to such speech and do not find it otherwise offensive or objectionable.
It sounds a lot worse when the company takes responsibility, doesn’t it?
Second, the language about what the employee will be exposed to sounds scary, but it’s actually just silly. Imagine for a moment that you work at a normal buttoned-up company — say a consultancy or a retailer or a bank. The company conducts training about sexual harassment. Such training might include speech that relates to sex, race, religion, or sexual orientation. Such a company would never feel it had to include a passage like this in its contract, but it would still be exposing employees to “offensive speech and conduct” that “relates to sex, sexual orientation, gender, national origin, religion, disability and age.” So what are we protecting employees from?
Suppose it went further? It might say something like this:
Barstool Sports employees use ethnic slurs in offensive ways and talk about sex, including sex and hoped-for sex with each other, in the workplace.
But of course, they cannot say that, because no workplace can get away with that. Just having it in the contract would subject the company to a lawsuit. The actual passage, while it appears to be explicit, actually says nothing of the kind.
In fact, Barstool CEO Erika Nardini responded to Sadeghi’s tweet by saying “Today’s leaked section of our contract is signed by every single employee at Barstool Sports to ensure they are comfortable … We have a zero tolerance harassment policy.” So Barstool doesn’t condone harassment (of course). But drawing the line between offensive, suggestive, and sexual speech and harassment is going to be pretty difficult.
Now look at the last sentence, in which the employee says they do not find speaking about these subjects offensive or objectionable. No one can sign that in good conscience. Each of us becomes offended at something. It might offend you if a coworker calls a female politician a whore, describes the type of sex they prefer, indicates that they’re into bestiality, or sympathizes with mass murderers. No one can truthfully sign a document that says you do not find speech offensive until you know what that speech is.
If a lawyer is reading this, please check my analysis. Am I right that this passage is actually meaningless?
Did Barstool or Sadeghi do anything wrong here?
By putting language like this in its contract, Barstool is putting employees on notice that its workplace is full of offensive behavior, even if the contract only implies this. So, four questions:
- Is Barstool right to include a warning like this? Yes. If you are going to behave this way, it’s better to warn employees ahead of time.
- Was Sadeghi right to turn down the job? Sure. She said that even after they agreed to remove the passage, she turned down the offer. She saw what she’d be getting into and said no. That’s a fair decision.
- Was Sadeghi right to post the contract? Why not? Employment contracts shouldn’t be secret documents; even if there are confidential parts, this particular passage shouldn’t be. If Barstool doesn’t want people to know it has this language in the contract, it shouldn’t put it in the contract.
- Is a working environment like this acceptable? This is the hard question. I’m sure the creation of smartass comedy requires offensive discussions. I’m not comfortable with telling a private company that it needs to police such discussions. That said, it’s very hard to keep such a workplace from devolving into a pit of testosterone and dick jokes. Is a woman or minority person knowingly entering such an environment giving up their rights? I’m not sure where to draw the line, or if drawing such a line is even possible.
Do you agree? I’m eager to find out.