By Marissa Ditkowsky
National Football League (NFL) cheerleaders have long been exploited, both personally and for their labor.[1] However, this time around, the NFL and franchises face two gender discrimination complaints of former cheerleaders who allege team policies are rooted in sexism.[2]
Bailey Davis filed a complaint with the Equal Employment Opportunity Commission against the New Orleans Saints and NFL for terminating her employment after posting a photograph of herself to Instagram.[3] Davis claims that the league has separate behavioral regulations for cheerleaders, which she alleges she was told are in place “to protect [cheerleaders] from the predators,” or the NFL players.[4] The burden, however, is placed squarely on the cheerleaders.[5] Additionally, despite restrictions on personal social media accounts, team accounts continue to feature similar photographs of cheerleaders in bikinis.[6] Washington Redskins cheerleaders have even reported being placed in uncomfortable and inappropriate situations with male suite holders.[7] The New York Times even reported on the handbooks by which cheerleaders must abide, including rules about personal maintenance, wearing sweatpants in public, and maintaining “ideal” body weights.[8] A former Houston Texans cheerleader joined the trend, suing the Texans for inadequate compensation and lack of protection from verbal harassment.[9]
Kristan Ann Ware has filed a complaint with the Florida Commission on Human Relations against the Miami Dolphins and NFL for gender and religious discrimination.[10] After Ware posted a photograph of her baptism on social media, she alleges that coaches and squad representatives harassed her and created a hostile work environment.[11] Ware also told teammates on a bus trip that she intended to remain a virgin until marriage, in response to which the cheerleading director informed her she could not discuss that information with the team.[12] Ware claims that she was not permitted to express her religious views in the same manner as players, also drawing attention to the disparate rules of conduct.[13]
The stark contrast between these cases highlights the conundrum women face regularly. The fact that women posting suggestive photographs and women expressing plans to remain a virgin could both be penalized and mistreated by NFL franchises is unsurprising. However, the question remains whether these circumstances and policies violate Title VII of the Civil Rights Act. The complaints are currently not publicly available, so it is difficult to compile all of the facts and claims asserted.
There are several potential claims that could be made under a variety of theories. The cheerleaders could argue that they were discharged on the basis of sex; that the employer “limit[ed], segregate[d], or classif[ied] his employees . . . in any way which . . . deprive[d] or tend[ed] to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee”; or that the policies disparately impact women.[14]
A prima facie discrimination claim under Title VII under a theory of disparate treatment of cheerleaders and NFL players would require that the cheerleader 1) is a member of a class protected under Title VII, 2) that “the prohibited conduct in which [s]he engaged was comparable in seriousness to misconduct of employees outside the protected class,” and “that the disciplinary measures enforced against [her] were more severe than those enforced against those other employees.”[15] The cheerleaders are a protected class under the statute. Seeing as though the NFL players are not at all held responsible for fraternizing with cheerleaders, it would seem that the second and third requirements are inherently met.[16] The problem here is that NFL players are not subject to the same policy—it is uniquely enforced for cheerleaders. It is also quite clear that the purpose for those policies was gendered, particularly after telling cheerleaders the rules were meant to protect them from the “predators,” referring to the NFL players.[17]
One potential issue with this claim is that cheerleaders and NFL players might not be considered similarly situated employees that should receive equal treatment.[18] Another potential issue with this claim is that its success rests on the presumption that cheerleaders are inherently female. On its face, therefore, the rule might not be viewed as discriminatory if it would apply to cheerleaders of any gender. It would probably be more helpful for the case if a similarly-situated male cheerleader were treated differently, or not punished for the same conduct, under the same policy. However, due to the gendered history of sports and cheerleading, perhaps this particular set of facts might pose a different result.[19] In fact, males who participate in cheerleading are often exposed to homophobia due to the coding of cheerleading as “feminine.”[20] The gendered nature of these policies, including rules regarding body weight, hygiene, and proper ways to use a tampon, also support this claim, as well as the discussion of the purpose of the policy at issue to protect cheerleaders from “predators.”[21]
If a disparate treatment claim is not successful despite these arguments, however, perhaps a disparate impact claim under Title VII might be successful. These policies would have a disparate impact on women given the nature of cheerleading and the composition of squads, as compared to the composition of NFL franchise teams. The plaintiff must demonstrate 1) that the employer used a practice that cause a disparate impact on sex, and the employer fails to show that the practice is job-related or necessary for the business and 2) that an alternative employment practice is available that is equally effective but less discriminatory, and that the employer refuses to apply those practices.[22] It would be difficult to claim that the policies implemented were “job-related,” but NFL and its franchises could claim that it was necessary for the safety of the cheerleaders. Even given that argument, however, it is unclear why such a policy would be placed on only the cheerleaders and not the NFL players if that were truly the goal of such policies.
Perhaps the intention of these cases is to draw attention to these issues, and the women would be satisfied with a settlement. Davis and Ware’s attorney sent a settlement proposal to the NFL that would solely require the league to meet with at least four cheerleaders to prepare a set of policies that apply to all teams.[23] If NFL Commissioner Roger Goodell sits down for a four-hour meeting with Davis and Ware in good faith, Davis and Ware’s attorney wrote that her clients would settle all claims for $1.[24] This tactic demonstrates the plaintiffs’ commitment to effecting broader change, both in the NFL and in society. The NFL reportedly rejected this settlement offer, but contacted the cheerleaders to set up a meeting in which they could advocate for equal treatment.[25]
It is time to stop exploiting women, particularly cheerleaders, for their labor, and burdening them with the responsibility of avoiding “predators.” It is time to stop telling women that it is all right for their employers to sexualize them for profit, but that it is “dirty” when women want to feel empowered themselves. It is time to erase the double standard that prohibits women from wanting to abstain from sex until marriage while simultaneously criticizing women who want to engage in sexual acts. Hopefully change will come through these lawsuits, whether it is in the form of case law, new policies, or general attitudes and awareness. Title VII is in place to hold employers accountable for discriminatory practices. It is time to make sure these statutes are enforced.
[1] See Alexandra Sifferlin, NFL Cheerleaders File Suit Saying They Make as Little as $2.85 Per Hour, Time (Feb. 14, 2014), https://time.com/44069/cheerleaders-rebel-over-low-wages/.
[2] Christina Cauterucci, Why NFL Cheerleaders are Selling Themselves Short, Slate (Apr. 25, 2018, 6:06 PM), https://slate.com/news-and-politics/2018/04/former-nfl-cheerleaders-offer-to-settle-discrimination-suits-for-usd1-in-exchange-for-meeting.html.
[3] Kaitlin Menza, I’m the NFL Cheerleader who was Fired after Posting a Sexy Instagram Pic, Cosmopolitan(Apr. 2, 2018), https://www.cosmopolitan.com/lifestyle/a19660597/bailey-davis-nfl-saints/.
[6] Fahima Haque & Talya Minsberg, How N.F.L. Teams Use Social Media to Promote, and Control, Cheerleaders, N.Y. Times (Apr. 11, 2018), https://www.nytimes.com/2018/04/11/sports/nfl-cheerleaders.html(highlighting hypocritical behaviors that teams exert when they penalize cheerleaders for posting suggestive photographs while they simultaneously sexualize cheerleaders on team accounts).
[7] Juliet Macur, Washington Redskins Cheerleaders Describe Topless Photo Shoot and Uneasy Night Out, N.Y. Times (May 2, 2018), https://www.nytimes.com/2018/05/02/sports/redskins-cheerleaders-nfl.html(describing an unpaid trip to Costa Rica on which cheerleaders were forced to pose nude in front of male spectators and accompany suite holders to a night club after a fourteen-hour work day).
[8] Ken Belson, No Sweatpants in Public: Inside the Rule Books for N.F.L. Cheerleaders, N.Y. Times (Apr. 2, 2018), https://www.nytimes.com/2018/04/02/sports/nfl-cheerleaders.html
[9] Juliet Macur, Former Cheerleader Sues Houston Texans over Pay and Treatment N.Y. Times (May 22, 2018), https://www.nytimes.com/2018/05/22/sports/texans-cheerleader-lawsuit.html.
[10] Jamie Hwang, Ex-Dolphins Cheerleader Files Complaint Claiming Religious and Gender Discrimination, ABA Journal (Apr. 20, 2018, 3:00 PM), https://www.abajournal.com/news/article/ex-dolphins_cheerleader_files_complaint_claiming_religious_and_gender_discr.
[13] Id.; see also Greg Bishop, In Tebow Debate, a Clash of Faith and Football, N.Y. Times (Nov. 7, 2011), https://www.nytimes.com/2011/11/08/sports/football/in-tebow-debate-a-clash-of-faith-and-football.html(discussing Tim Tebow’s regular on-field prayer). But see Jon Kelly, #BBCTrending: The NFL Player Penalised for Praying, BBC (Sept. 30, 2014), https://www.bbc.com/news/blogs-trending-29388150 (describing how Muslim Kansas City Chiefs player Husain Abdullah was penalized under excessive celebration rules for praying).
[14] 42 U.S.C. §§ 2000e-2(a), 2000e-2(k) (2018).
[15] Cook v. CSX Transp. Corp., 998 F.2d 507, 511 (4th Cir. 1993).
[16] Compare John Branch, Former N.F.L. Cheerleaders Offer to Settle for $1 and a Meeting with Goodell, N.Y. Times (Apr. 24, 2018), https://www.nytimes.com/2018/04/24/sports/football/nfl-cheerleaders.html, with Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997) (finding a female supervisor who violated a policy against fraternizing with hourly workers failed to show that male supervisors who violated the policy were treated differently).
[18] See Day v. Johnson, 119 F.3d 650, 655 (8th Cir. 1997) (finding that “[d]isparate treatment of black and white employees who are not similarly situated is not evidence of pretext”).
[19] See generally Laura Grindstaff & Emily West, Cheerleading and the Gendered Politics of Sport, 53 Social Problems 500, 500-518 (Nov. 2006) (describing cheerleading as embodying qualities associated with “emphasized femininity,” including supportiveness, enthusiasm, and sexual attractiveness).
[21] See Belson, supra note 8; Menza, supra note 3.
[25] Nicole Rodriguez, NFL Wants to Meet with Sarasota Woman Alleging Cheerleader Discrimination, Miami Herald (May 10, 2018, 3:14 PM), https://www.heraldtribune.com/news/20180510/nfl-wants-to-meet-with-sarasota-woman-alleging-cheerleader-discrimination.