The controversy over Ines Sainz raises some interesting issues about the intersection of sexual harassment law and women who use their sexuality to promote themselves in the new emerging field of media entertainment.
The idea that the real story is about female access to male locker rooms misses the point.
The real issue is— Where is the line for these new-media entertainment personalities, who morph back and forth between being a member of the media and being an entertainer?
Sainz, and her employer, TV Azteca, uses Sainz' sexuality to draw attention to herself and the network.
She has been named the Sexiest Reporter in Mexico. TV Azteca promotes Sainz as "la hermosa conductora" or the “beautiful host.”
According to New York Post Writer Joanna Molloy, TV Azteca shot a ridiculous closeup of her crotch as she tried to report on a Honduras versus Costa Rica soccer game.
And the “business attire” that Sainz wears on the sideline and on the field provocative to say the least.
Sainz on the sideline has been known to wear tight fitting jeans and a halter top. A mini dress with a revealing neckline and stilettos is also not off-limits.
Sainz attire is befitting an entertainer who is seeking to entice her male fans.
Sainz coverage of past Super Bowl's indicates that she is more concerned about becoming a part of the story than covering the story. In interviewing New England Patriots Quarterback Tom Brady at the Super Bowl, Sainz was dressed in a wedding dress and made a faux marriage proposal. Sainz has also covered the Super Bowl by measuring the biceps of various players, in attire that would likely ensure that she would be part of the story.
Is Sainz behavior typical of your married female reporter? Can there be any explanation other than to draw publicity to oneself?
Sainz to Matt Leinart: Can I see your biceps, please?
Leinart: “It's not very big.”
Sainz: “It's 18 [inches]; it's big enough.”
Well, well, well.
Very briefly, I felt guilty for writing about a woman from TV Azteca measuring biceps, until a fellow reporter told me that while nobody would care much about X's and O's five days before a Super Bowl, 'they'll read about biceps girl, particularly if you have photos of her.'
While the California Supreme Court's decision in Lyle v. Warner Brothers Television Productions does not address New York law, the reasoning of the Court is nonetheless instructive as to how a court might analyze a Sainz type situation.
In Lyle, the California Supreme Court addressed the issue of whether a sexually hostile environment could be created by the writers on television show Friends. An assistant working on the show alleged that she was subjected to a constant barrage of sexual talk, jokes, drawings, and gestures that demeaned and degraded women that violated the California employment discrimination statute.
The Lyle Court noted that it was “neither surprising nor unreasonable from a creative standpoint” that the writers engaged in “discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas.”
In finding for Warner Brothers, the Court found it important to note that Lyle described the conduct often as “silly,” “juvenile” and “like being in a junior high locker room.” Also important was the fact that both sexes contributed to, and were exposed to, the creative process, with all of its sexually charged components
Now, Lyle should not be interpreted to give New York Jets players carte blanche to say whatever they wanted to Sainz.
Lyle however suggests that banter between members of different genders in the entertainment business that might otherwise might constitute sexual harassment does not automatically create a hostile environment.
This point is significant in evaluating the Sainz situation and similar situations involving media entertainment reporters such as Sainz.
Sainz is a collaborator with the NFL in promoting the league, TV Azteca and herself; and several of the collaborative efforts involve some type of sexual innuendo. What therefore might be “appropriate” to say to Sainz will likely not be appropriate to say to another member of the media who has never sought to be part of the story or sought to use her sexuality in the same manner as Sainz.
Further, is it ridiculous to suggest that Sainz created an atmosphere in which athletes she covers such as the Jets feel comfortable in making sexually charged comments to her?
If an atmosphere in which sexual banter between Sainz and athletes has been created, do athletes then have more latitude to say things to Sainz that otherwise would viewed as clearly inappropriate if said to another female reporter?
For example, an Arizona Cardinal player could approach Sainz and flex his bicep muscle while saying “Hey look, I've got more inches than Leinart.” But if the comment is made to Suzy Kolber, the player is likely headed straight to Commissioner Goddell's office to explain himself.
The question coming out of the Sainz controversy isn't about what goes on in the locker room.
The question is, where is the line for these media entertainment personalities? How do we deal with those like Sainz, who act as both journalist and entertainer?