News sources have revealed that NFL player Riley Cooper will be spending some time away from the Philadelphia Eagles to attend counseling after the recent release of a video showing Cooper using a racial slur at a concert. Though Cooper and the Eagles have received media attention surrounding the remark and the team’s response, these types of incidents are, unfortunately, not uncommon in the locker room and workplaces generally. In addition to impacting morale and cohesion, franchises and employers could face legal liability in certain circumstances where slurs or other conduct can be viewed as unlawful harassment under Title VII and other equal employment opportunity legislation.
As a general matter, federal and state anti-discrimination laws apply with equal force to professional sports franchises, and prohibit not only overt discrimination but also harassment on the basis of protected characteristics, such as age, race, sex, color, religion, national origin or disability. Discriminatory statements, racial or religious slurs or sexual innuendos, as well as derogatory comments or jokes about one’s sexual orientation, name-calling or unwelcome physical contact, could all result in harassment complaints. The legal and practical ramifications can be even more severe where a supervisor is the individual whose behavior is inappropriate. In the case of a professional sports franchise, damage can be incalculable. Whether or not legal liability is imposed, the court of public opinion brings its own sanctions.
Professional franchises are legally obligated to respond to such incidents in the same manner as any employer dealing with inappropriate conduct, including conduct outside the workplace which spills into the workplace and impacts the work environment. A franchise must consider its legal obligations and devise a course of action that will promote positive relations in the locker room (or in the office). In many cases, corrective action may prove to be best the discipline, whether that is a simple apology or sensitivity training for the player or the entire team. Of course, a franchise (or employer) must be mindful of public perception and reach out to its public constituency as well.
As is often the case, the best defense is a good offense. Many employers and sports teams have implemented proactive sensitivity training programs to both reduce the risk of legal disputes and foster a more cohesive and collegial environment for their employees or athletes. Such programs should, at a minimum, foster an awareness regarding discrimination and harassment with respect to race, gender, religion, sexual orientation, and gender identity or expression. It is also important to ensure that anti-discrimination policies are well-communicated to athletes, coaches and managers and that any complaints about discrimination or harassment are promptly and appropriately reviewed and investigated.