What’s in a Name? Ask Robert Lee

By Felix M. Digilov - Shawe Rosenthal LLP

August 24, 2017

Instead of covering the top sports headlines of the day, ESPN has once again made the headlines and found itself embroiled in controversy. This time, the network removed a broadcaster from the September 2 football game between the Virginia Cavaliers and William & Mary set to play in Charlottesville, Virginia. It did so because his name is Robert Lee. He is Asian American.

The September 2 ACC Network telecast will be the first game in Charlottesville since the city was the site of violent clashes after white nationalists marched through the University of Virginia campus to protest the city’s plans to remove a statue of Confederate general Robert E. Lee. It seems that the sole basis for pulling the latter-day Robert Lee from the University of Virginia football game is that he shares a name with Robert E. Lee, the Confederate general.

ESPN switched Robert Lee’s assignment to cover the Youngstown State at Pittsburgh game instead. In explaining the network’s decision in an internal memo (reported by CNN senior correspondent Brian Stelter on his Twitter feed), ESPN president John Skipper stated that the network was not worried about offending viewers  of the game but was instead concerned Lee’s name might “create a distraction, or even worse, expose him to social hectoring or trolling.” Skipper went on to describe the decision to remove Lee as “one of the countless, routine decisions” and that Lee’s well-being was ESPN’s “primary concern.” Skipper concluded by reasoning that the decision to switch assignments was only made after consulting with Lee, and described Lee as being also worried about the reaction. According to Skipper, Lee actually preferred to call the Pittsburgh-Youngstown State game.

Skipper’s statement raises some questions. First, there exists a huge power dichotomy between ESPN, the largest sports broadcaster on the planet, and an, up until now, relatively unknown employee. Significantly, Skipper admitted that ESPN production personnel first approached Lee about the issue, not the other way around. In all likelihood, if ESPN asks Robert Lee, a junior broadcaster, to switch assignments, Robert Lee is switching assignments regardless of whether he truly agrees with his employer’s concerns. We wonder whether the decision was truly mutual.

Also, Skipper’s fear that Lee’s name would create a distraction did not come to fruition until ESPN decided to reassign Lee. As far as we can tell, nobody mentioned or made fun of Robert Lee’s assignment to cover the September 2 game until word leaked that ESPN took it upon itself to prevent that exact event from occurring. By self-censoring without being prompted to do so, it seems that ESPN created the very problem it was trying to avoid.

Skipper was also concerned that Robert Lee’s coverage of the game could trigger internet memes and trolling. However, from an employment law viewpoint, an employer’s fear of internet memes does not appear to be a legitimate basis for reassigning an employee, particularly if that employee does not share the concern. In this situation, Lee is a very common surname for people of both Korean and Chinese descent. Title VII of the Civil Rights Act forbids discrimination in any aspect of employment, including assignment, against an employee on the basis of a protected characteristic such as race, color, religion, sex or national origin. If Lee were not truly in agreement with the reassignment, it’s possible that he could claim that his race and/or national origin arguably led to his reassignment from the Charlottesville game in violation of Title VII (although such a “disparate impact” claim would be difficult to establish).

Finally, Lee’s reassignment from the Charlottesville game raises the question of how far ESPN or other non-sports media outlets intend to take this paternalistic approach to assignments based on people’s names. Will Robert Lee be allowed to cover any University of Virginia games again, and will he  potentially be excluded from covering any games in the South? Will CNN allow a reporter with a Slavic-sounding last name to cover the latest Trump-Russia developments? Will Fox News be allowed to reassign a reporter with an Arabic or Jewish-sounding name from covering violence in the Middle East? In trying to skirt controversy, we believe that ESPN may have opened Pandora’s box.