I love stupid people. Stupid people are my lifeblood. Stupid people pay my mortgage and will be putting my kids through college. And stupid people ward off monotony. No matter what bizarre array of stupid behavior you've seen in your career, you can always count on stupid people to do something new — something floridly, innovatively stupid — that takes your breath away.
Ted Frank at Overlawyered alerts us today to some very choice stupidity by folks at Electronic Arts. EA is one of many exhibitors at the vast comics-and-science-fiction extravaganza Comic Con in San Diego. EA came up with a sin-themed contest, and as one component of it, challenged convention-goers to win prizes as follows: "COMMIT ACTS OF LUST: Take Photos With Us Or Any Booth Babe." Participants were then exhorted to twitter those "Acts of Lust."
This was widely seen as encouraging conventioneers to grope or otherwise harass "booth babes", the pulchritudinous costumed ladies who serve roughly the same function as bikini girls at a car show. This was stupid on a number of levels. First there's the level of marketing and politics. Despite the stereotype of hardcore comic and sci-fi fans being unwashed obese basement-dwelling man-children, more and more fans are (1) women and/or (2) socially able. Lots of people who are (1) woman and/or (2) socially able are not thrilled by that dysfunctional element of fandom that regards women as lumps of meat. That's an element encouraged by comic and sci-fi conventions in both senses of that word — conventions as in gatherings where sexually obnoxious hijinks like the Open Source Boob debacle occur, and conventions as in artistic and literary conventions tending to portray women as anatomically improbable creatures in scraps of spandex.
But that's politics, and I'm a lawyer. So let's move on to the other type of stupid: the legal kind. EA responded with a lame apology saying that its challenge to "commit acts of lust" simply meant to take pictures with the booth babes. But that's not the only way to read the challenge. Some people — some fans — probably read it as encouraging sexualized conduct towards the women. As Ted Frank suggests, this poses potential sexual harassment problems. Some things EA should know, and that EA's in-house lawyers ought to be telling them:
(1) Employers have an obligation to take reasonable steps to protect employees from sexual harassment by customers and other third parties. They also have an obligation to refrain from encouraging and ratifying such harassment. This is a briskly developing area of law. And while EA might plausibly argue (as have employers like Hooters, for instance) that being ogled is part and parcel of the Booth Babe job, they're going to have a tough time explaining how Booth Babes signed up to be exposed to ill-defined "acts of lust."
(2) EA's booth babes might be independent contractors. If EA thinks that will save them from expensive litigation on the theory that only employees are covered by sexual harassment laws, they're wrong. Plaintiffs' lawyers love to bring lawsuits premised on the argument that nominal independent contractors are actually employees for purposes of various legal protections. The analysis is complex and multi-factored, and the employer's characterization of the worker does not control.
(3) EA did not specify that contestants should only commit "acts of lust" with their own Booth Babes. Now they've triggered other exhibitor's legal obligations to take reasonable steps to protect their employees, as well as bought into potential liability for soliciting assaults.
When I did sexual harassment training recently, I told people this: you don't like lawyers and don't want to spend time with them. But listening and using your head for a few minutes now will spare you from spending financially ruinous months with them later. Someone at EA should have been smart enough to spend five minutes talking to a lawyer — nearly ANY lawyer, really — before running this contest. It's odd if they did not — most contests are vetted by lawyers these days. If some lawyer did sign off on this, they're … to be blunt … stupid.
Last 5 posts by Ken White
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