Will the NFL be sued for racially discriminating against black coaches?
At this time of year, there is a lot of media coverage about the lack of black head coaches in the NFL, but what gets far less attention is the potential legal liability for racial discrimination at that an NFL team might face. The fact that no team has been prosecuted for this is somewhat remarkable given that every NFL team is a multi-billion dollar business with nearly constant local and national media coverage and rabid fanbases. The gross under-representation of black head coaches in the NFL has existed since the league’s inception over 100 years ago, and it continues until today where only one NFL team employs a head coach. noir.
A Fortune 500 company with the same hiring practices as many NFL teams would almost certainly have already been the subject of several major lawsuits under anti-discrimination laws such as Title VII of the 1964 Discrimination Act. civil rights. This then begs the question of what a potential racial discrimination/glass ceiling case against an NFL team would look like.
Note: While legal action against the entire NFL may be considered, legal action against an individual NFL team, as opposed to the league, is covered in this article.
The glaring shortage of black NFL head coaches
The NFL’s lack of diversity among its head coaches has been consistently covered in the press and has been for decades. In the early 2000s, the Fritz Pollard Alliance was formed and continues to advocate for the NFL to hire more black coaches and executives. Interestingly, the organization grew out of a threatened lawsuit against the NFL related to the racial glass ceiling for black head coaches. Rather than litigate, the parties created the Alliance and soon after enacted the “Rooney Rule”, which requires teams to interview black coaches for head coaching vacancies. Since then, it does not appear that an NFL team has faced a racial discrimination/glass cap lawsuit against black coaches.
Despite the Fritz Pollard Alliance’s best intentions, the grim lack of black NFL head coaches remains and continues to be a stain on the league. A historical context further highlights the stacked game that black coaches seem to have faced in order to rise to the top job:
- About 70% of NFL players are black
- From 1925 to 1988, the NFL did not hire a single black head coach
- In the 32 years since the Los Angeles Raiders hired Art Shell as head coach in 1989, fewer than two dozen black head coaches have been hired (and that list includes those who have served little time as interim head coach)
- Today, the NFL has only one black head coach among its 32 teams.
- Six NFL teams have never hired a full-time black head coach
Likewise, NFL team owners are the ultimate decision makers when it comes to hiring a head coach. No NFL team has ever had a black owner and currently only 2 of the 32 teams have a minority owner (Shahid Kahn, who is a Pakistani-American, owns the Jacksonville Jaguars and Kim Pegula, who is from of Asian descent and co-owner of the Buffalo Bills).
A Washington Post article recently quoted NFL Executive Vice President of Football Operations Troy Vincent speaking about the lack of black NFL head coaches as saying, “[t]here is a double standard, and we have seen that[.]“His quote also highlights that even when black head coaches are hired, they often have less time to succeed on the job.
With that background in mind, let’s dive into the details of a potential legal action against an NFL team related to its head coaching hiring decisions.
Legal Elements of a Race Discrimination Case Against an NFL Team
There are various laws under which an NFL team could face potential legal liability for its racial glass ceiling by failing to promote black head coaches. The two main federal statutes are Title VII of the Civil Rights Act of 1964 and 42 U.SC. article 1981.
To prove intentional promotional discrimination under Title VII or Section 1981, a Black NFL head coach candidate must first show that:
- they are part of a protected class;
- they applied and qualified for the position of head coach; and
- after their rejection, the position remained open or was filled by someone with similar qualifications.
Many unsuccessful black head coach candidates will likely encounter this initial (prima facie) case of discrimination. The next step is for the NFL team to state a legitimate, non-discriminatory reason why they did not select the black coach for the job. It is almost rare for an employer not to provide some explain why he didn’t hire someone.
Therefore, where the rubber touches the road in these cases is whether the rejected candidate can demonstrate that the reason for the team’s decision was a sham for impermissible discrimination and/or that the explanation is untrustworthy. See, for example, Reeves v. Sanderson Plumbing Products, Inc.. 530 US 133, 148 (2000).
Proving that an NFL team gave a reason for not hiring a black head coach is actually a pretext for discrimination can take many forms. For example:
- Evidence that the rejected coach was significantly more qualified than the selected coach;
- White coaches with similar experience and backgrounds had better opportunities or were “groomed” to be hired as a head coach;
- Shifting and inconsistent reasons for not hiring the black coach are offered by the team;
- The team’s failure to follow its normal hiring protocols when selecting the head coach; and
- Statistical evidence related to team and/or NFL history of not hiring black coaches
This latter type of evidence could be particularly useful in proving a claim of racial discrimination under Title VII. Statistical data and comparative information about an NFL team’s past hiring decisions for the position of head coach can provide the necessary background and historical context for how a particular decision was made.
Note: Under Title VII, one or more Black coaches could also consider legal action for unintentional discrimination (also known as disparate impact) if they can identify a specific neutral employment practice that negatively impacts hiring black head coaches. This potential type of lawsuit will be the subject of a separate article.
Using statistics to support a racial glass ceiling claim against an NFL team
The historic and glaring lack of black NFL head coaches could serve as evidence to substantiate a racial discrimination claim against an NFL team. In court, the lack of diversity among an employer’s workforce is “clearly” relevant to the claim “of an individual plaintiff in a Title VII case.” Mitchell vs. Nat’l RR Passenger Corp., 208 FRD 455, 459 n. 5 (SDC 2002); see also Jones v. Mukasey, 565 F.Supp.2d 68, 78 (SDC 2008). Indeed, these statistical data “may be used by a complainant to establish a prima facie case of discrimination or to show that the reasons given by the employer for the disputed actions are a pretext for discrimination.” Identifier. (citing, among others, McDonnell Douglas Corp. vs. Green411 US 792, 804-05 (1973)).
Often a company will argue that it has not promoted a significant number of black employees to leadership positions because few qualified black employees exist in the “food” positions for these C-suite roles. many NFL teams would struggle with a defense claiming that there are no qualified black candidates for “nurturer” head coaching positions given that:
- About 35-40% of NFL assistant coaches are black
- A team may select its head coach not only within the organization, but also from other NFL and/or college teams, so the pool of qualified black candidates for a particular NFL team is wider than his own assistant coaches.
- Today, only one black head coach (3.1% of NFL head coaches) is employed in the NFL
Even if NFL teams add a handful of black head coaches in the next hiring cycle, this incremental progress will barely make a dent in the historic (and current) underrepresentation of black head coaches in the NFL. .
And some NFL teams have never hired a black NFL coach. According to a USA Today study, six NFL teams have never hired a black candidate (or anyone of color) as a full-time head coach or general manager: the Atlanta Falcons, the Dallas Cowboys, the Jacksonville Jaguars, Los Angeles Rams, New England Patriot, New Orleans Saints and Tennessee Titans.
When an employer has never hired a black employee for certain positions, the courts call this the phenomenon of “inexorable zero”. “Courts have been particularly skeptical of employers’ attempts to explain the inexorable zero. . . [and] the existence of the “inexorable zero” in Title VII cases raises eyebrows among judges. “). Strange vs. Lee Schwab Tire Centers of Oregon, Inc., 2009 WL 2950641, at *3 (WD Wash. 3 September 2009). In the NFL, with an abundant pool of qualified black coaches, it wouldn’t be surprising if “a court couldn’t help but be wary” of an NFL team that repeatedly selects only non-black employees. for his role as head coach. See United States v. City of New York713 F.Supp.2d 300, 317 (SDNY 2010).
Finally, as stated earlier, the ultimate decision makers in hiring an NFL head coach are the team owners. And the owners of the NFL are now and always have been overwhelmingly made up of white individuals. It’s also a factor to consider in determining whether racial discrimination played a role in the head coach’s hiring decision.
The main reason no NFL team has been prosecuted for their racial glass ceiling
In light of the above, one question remains: why has an NFL team not been sued for racial discrimination/racial glass cap related to their head coaching hiring process? A variety of factors are at play, but the key reason is that it would likely be career suicide for a black assistant coach to sue an NFL team for racial discrimination. Stranger things have happened though and if a lawsuit does eventually emerge, it will be fascinating to see how the NFL, its fans and, perhaps most importantly, NFL sponsors respond.