Finally some legal explanations for what is going on with this suit.
There was a sense it would take lawsuit to change NFL hiring practices, and this one could bring new, valuable insights.
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Alicia Jessop is an Associate Professor of Sport Law and Sport Marketing at Pepperdine University and a contributor to The Athletic. An attorney licensed to practice in California and Colorado, Alicia has covered sports business for international publications since 2011 and is the founder of RulingSports.com.
On the first day of Black History Month, former
NFL head coach Brian Flores
filed a lawsuit against the league and three teams that could reshape and bring transparency to the the NFL’s hiring practices.
The lawsuit filed in federal court against the NFL,
Miami Dolphins, New York Giants and
Denver Broncos alleges violations of federal, state and city discrimination laws stemming from Flores’ termination as the head coach of the Dolphins and recruitment as a participant in allegedly sham head coaching interviews by the Giants and Broncos.
Under federal law, Flores alleges that the defendants violated Section 1981 of the Civil Rights Act of 1866. The Civil Rights Act of 1866 was enacted by Congress to ensure U.S. citizenship to formerly enslaved people and protect their ability to enforce contracts. Today, Section 1981 makes it illegal for a non-government party, like the NFL and its teams, to intentionally discriminate against an individual in making and enforcing a contract.
Flores indicated that he will file a claim under a second federal law, Title VII of the Civil Rights Act of 1964. Title VII makes it illegal for an employer to discriminate against employees who are members of protected classes. Race is a protected class under the law. Title VII is broader in its protections than Section 1981 of the Civil Rights Act, as plaintiffs can bring cases alleging both intentional employment discrimination and disparate impact discrimination. Under a disparate impact claim, a plaintiff alleges that an employment practice exists that on its face is neutral, but in practice, more harshly impacts members of a protected class.
One place in which Flores’ lawsuit touches on disparate impact is in alleging that a small minority of all NFL head coaches, quarterback coaches and offensive and defensive coordinators are Black. Yet Flores alleges that a pipeline exists across all of the positions, such as where quarterback coaches are promoted to offensive coordinators and coordinators are promoted to head coaches. If NFL teams have a practice of hiring head coaches from these pipelines, and if Black coaches are disproportionately held out from accessing said pipelines, a Title VII disparate impact claim could be shown.
However, employers possess a critical Title VII defense. Namely, employers can defend against a Title VII disparate impact claim by asserting that even if a facially neutral employment practice falls more harshly on a protected class of people, the employment practice is necessary for business reasons. In this instance, the NFL would likely argue that experience as a quarterback coach is necessary to become an offensive coordinator, or that experience in either coordinator role is necessary to become a head coach. However, that individuals who do not possess these experiences have been hired into the role of head coach may cut into both Flores’ claim and the NFL’s subsequent defense.
To bring a claim under Title VII, one must first file a charge with the U.S. Equal Employment Opportunity Commission. Given the statements made in the lawsuit’s pleading, Flores’ attorneys will likely file the charge soon.
Along with the federal claims, Flores’ lawsuit alleges that the New Jersey Law Against Discrimination, New York State Human Rights Law and New York City Human Rights Law were violated. The New Jersey Law Against Discrimination makes it illegal to discriminate on the basis of race in employment settings. The New York State Human Rights Law creates a civil right in the state to obtain employment without discrimination because of race. The New York City Human Rights Law makes racial discrimination in employment settings illegal in the city. It can be assumed that these claims were included in the lawsuit as the NFL is headquartered in New York and the Giants’ location is in New Jersey. If other teams are added to the lawsuit, which is plausible as more plaintiffs join the case, the pleading could be amended to include claims alleging violations of other relevant states’ anti-discrimination and human rights statutes.
In response to the lawsuit, the NFL issued a statement reading, “The NFL and our clubs are deeply committed to ensuring equitable employment practices and continue to make progress in providing equitable opportunities throughout our organizations. Diversity is core to everything we do, and there are few issues on which our clubs and our internal leadership team spend more time. We will defend against these claims, which are without merit.”
Flores’ lawsuit marks the first time that a former NFL head coach has challenged
the efficacy of the NFL’s diverse hiring practices under the Rooney Rule in the court system. Enacted in 2003 in response to outcry over the firing of and overall paltry number of Black NFL head coaches, the Rooney Rule initially required NFL teams to interview at least one diverse candidate for every head coaching position. The rule has since been expanded to require teams to interview at least two diverse candidates for head coaching positions, with one interview being in-person. Teams must also abide by the rule for other critical hirings, including the positions of general manager, assistant head coach and both coordinator positions.
As Black head coaching candidates with lengthy résumés, Super Bowl wins and winning records have been passed over for NFL head coaching positions, questions have lingered over whether the Rooney Rule is enough to cure the NFL’s racial hiring and promotion divide. According to Flores’ lawsuit, only 15 Black head coaches have been hired since the Rooney Rule’s adoption to fill approximately 129 head coaching openings. Presently, only one NFL head coach is Black. Some argue that a lawsuit was necessary to drive meaningful change to the NFL’s hiring practices.
“I have said, especially after the last hiring season and in the midst of this one, that it is going to take a lawsuit or legislative action to change things,” said Kenneth Shropshire, CEO of the Global Sport Institute at Arizona State University and an attorney. “I had no optimism about either happening. For the individual who brings the lawsuit, it could potentially be career ending. I also don’t know how you legislate around this.”
. Would draft picks hold out on Miami. On the last 2 points include the horsies and Giants.
