By: Ashlyn P. Stone & Dan W. Sweeney
On February 1st, 2022, former head coach of the Miami Dolphins, Brian Flores, filed a class action suit in the Southern District of New York against the NFL alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, and New York State anti-discrimination laws. Specifically, Flores alleged discrimination in the hiring and firing practices of NFL franchises regarding head coaches, offensive and defensive coordinators, quarterbacks’ coaches, and general managers.[1]
The complaint centered on the failure of the NFL’s “Rooney Rule”[2]—an interviewing quota imposed by the NFL on the franchises’ hiring of certain leadership positions.[3] In its current state, the Rooney Rule requires teams to interview two non-white candidates for head coaching vacancies and one non-white candidate for coordinator and general manager vacancies.[4] According to the complaint, of the thirty-two NFL teams, only one team (3%) employs a Black head coach, four teams (12%) employ a Black offensive coordinator, eleven teams (34%) employ a Black defensive coordinator, eight teams (25%) employ a Black special teams coordinator, three teams (9%) employ a Black quarterback coach, and six teams (19%) employ a Black general manager.[5]
The alleged disparities go beyond underrepresentation of qualified Black employees holding the at-issue jobs. The rate at which Black coaches are fired following a winning season relative to their white counterparts[6] likewise may be indicative of discrimination. Specifically:
there have only ever been 17 Black Head Coaches who have coached a full season, [] four of them (23.5%) were fired after a winning season. In contrast, only 6.9% of white coaches were fired after a winning season (12 out of 174). Thus, Black Head Coaches are 3.5 times more likely to be fired . . . following a winning season.[7]
In addition to discriminatory hiring and firing practices, the complaint states Flores and other Black coaches, coordinators, and applicants were subjected to: “sham and illegitimate interviews”; “disparate terms and conditions of employment”; and “unequal compensation relative to their white peers.”[8] By its nature, a claim of intentional discrimination tends to require extensive discovery, but the current state of racial and ethnic representation in the at-issue jobs is deeply problematic and is suggestive of a potential pattern of discrimination—intentional or otherwise.[9]
The complaint will be amended to include the Title VII claims after exhausting administrative remedies under the Equal Employment Opportunity Commission “EEOC.”[10] Given the nature of Flores’ allegations and the time spent in the complaint detailing the history of discriminatory practices in which the NFL has engaged, it seems likely that Flores’ complaint with the EEOC will allege violations under both disparate impact and disparate treatment. However, for Title VII discrimination claims alleging disparate impact in hiring practices, courts and the EEOC tend to look to applicant flow data to determine if a statistically significant level of discrimination has occurred, as the result of an otherwise, allegedly neutral selection procedure. Title VII prohibits employers from using neutral selection tests that have a disproportionate effect of excluding persons based on race, where the tests are not “job-related and consistent with business necessity.”[11]
Further, it seems likely that Flores will have issues obtaining Rule 23 certification. In Wal-Mart Stores, Inc. v. Dukes,[12] the Supreme Court held that, to satisfy the Rule 23 commonality requirement “claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of class wide resolution . . . .”[13] In the present case, applying this restrictive view of commonality, it seems possible that a court will view the harms faced by putative class members as sufficiently distinct because they were committed by different teams and were of different natures: disparate firing and hiring, unequal pay, and racial stereotyping.
The complaint sets these disparities against the backdrop of an NFL player base that is 70% Black.[14] If Flores’ claims survive to the trial stage, this may have an impactful difference in NFL hiring practices, substantially altering the Rooney Rule or creating a different rule to better combat discrimination at the leadership level in the NFL.
[1] Complaint at 24, Flores v. NFL, 1:22-cv-00871 (S.D.N.Y. 2022), https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf.
[2] Id. at 12; Kevin Patra, NFL instituting changes to Rooney Rule, NFL (May 18, 2020), https://www.nfl.com/news/nfl-instituting-changes-to-rooney-rule.
[3] Id.
[4] Id.
[5] Complaint at 5, Flores v. NFL, 1:22-cv-00871 (S.D.N.Y. 2022), https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf.
[6] Id. at 112.
[7] Id. (emphasis added)
[8] Complaint at 210, Flores v. NFL, 1:22-cv-00871 (S.D.N.Y. 2022), https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf.
[9] Bethany Lacina, Nearly all NFL head coaches are White. What are the odds?, Wash. Post (February 7, 2022), https://www.washingtonpost.com/politics/2022/02/07/nfl-racial-bias-flores-coaches/.
[10] Complaint at 26, Flores v. NFL, 1:22-cv-00871 (S.D.N.Y. 2022), https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf.
[11] Employment Test and Selection Procedures, EEOC, https://www.eeoc.gov/laws/guidance/employment-tests-and-selection-procedures.
[12] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, at 9 (2011).
[13] Id.
[14] Complaint at 3, Flores v. NFL, 1:22-cv-00871 (S.D.N.Y. 2022), https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf.
