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Employers: Keep Your Head in the Game! Are Some Employees Treated Better Than Others Because They Bring in the Big Bucks? Are Those Employees All Men?

A former NFL cheerleader for the New Orleans Saints recently filed a complaint with the Equal Employment Opportunity Commission (EEOC), the federal watch dog for employment discrimination statutes.  She alleged the team treats its cheerleaders differently because they are women.  While there is no outcome yet, it is a cautionary tale whose time has come.

The Saints, like most NFL teams, have separate rules for cheerleaders and players. Among other rules, the Saints have an anti-fraternization policy which prohibits cheerleaders from having any social contact with players, in person, via text or the internet.  Saints cheerleaders are even supposed to go so far as to “block” players from following them on social media.  Their rules also require that if a cheerleader arrives at a restaurant where a player is dining, the cheerleader must leave.  In fact, if a player arrives to a restaurant where a cheerleader is already dining, the cheerleader again must leave, even though she was there first.  The Saints also require cheerleaders to pay for their own uniforms even though most cheerleaders only make slightly more than minimum wage.

But these rules are only background.  What ultimately cost former Saints’ cheerleader Bailey Davis her job was an Instagram post from January where she was shown wearing black, lacey lingerie.  She was therefore accused of breaking the Saints’ policy which prohibits cheerleaders from appearing “nude, seminude or in lingerie.”  There was also an investigation pending into allegations that Davis attended a party with Saints players, another big “no-no” according to the Saints.

While these facts are disappointing and arise from the world of professional football, they do teach lessons for all employers.  For instance, consider a sales company or hedge fund where a small group of employees generate large revenue.  Oftentimes, the people who hold these positions are male.  The support staff and usual victims in harassment cases are typically female.  Many times the male sales force will be treated more favorably or questionable conduct will be swept under the rug because they generate millions for the Company, whereas the support staff do not and therefore their actions are more closely scrutinized.  This fact pattern is not unlike the football players who generate the revenue for the team in contrast to the cheerleaders who “only” boost fan and team morale.   

Anyone reading the facts of the Saints Cheerleader case likely said “oh no, that is clearly wrong.”  But, are employers asking themselves the same questions under different facts?  While companies are becoming much more sensitive to employment discrimination and harassment issues in the #MeToo movement, the desire to let revenue trump other considerations is not dead.  Employers should learn from the Saints and analyze whether this type of discriminatory treatment is happening at their company.  If so, employers need to seek competent employment counsel and change the culture immediately.  If not, they will be facing their own litigation and potential public relations nightmare.

Brody and Associates regularly provides counsel on civil rights issues, state and federal wage and hour laws, regularly advises management on complying with state and federal wage and hour laws and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.