Few would argue with the statement that the National Football League is one of the most successful, if not the most successful, of the professional sports organizations. The NFL is worth literally billions of dollars. The league's television contracts with Fox, NBC, CBS and ESPN bring in approximately $3.7 billion annually, and its arrangement with DirecTV nets the NFL an additional $700 million each year. It seems that everything the NFL touches turns to platinum.
Notwithstanding all of the league's financial success, first-year NFL Commissioner Roger Goodell sees trouble brewing. He has witnessed the off-the-field problems caused by some of the league's members (an estimated 50 players and coaches have been arrested in the past year) and has recognized that the problem is getting worse, not better. Take, for example, some of the league's recent news-makers:
A defensive back has been involved in no fewer than 10 encounters with the police since being selected sixth overall in the April 2005 draft. In that same time period, he has been arrested five separate times. Most recently, Las Vegas police recommended that prosecutors file felony charges against him stemming from a February 19, 2007, strip club fight and shooting.
A 300-pound nose tackle recently received a four-month prison sentence for violating his probation on a 2005 weapons conviction.
A wide receiver has been arrested four times since December 2005. Not to be left out, eight of his teammates have been arrested in the last 14 months.
Goodell and the management are very concerned. Even though it is reported that Goodell has not heard from a single major sponsor expressing concern over being affiliated with the league after its repeated encounters with the law, Goodell is taking proactive steps to ensure that his league remains the model for the other "major" sports. "But I'm not waiting for that," Goodell explained. "In my view, we have to act before we have people complaining about that."
What is Goodell doing? He is revamping the NFL's policies. Specifically, Goodell is poised to announce new initiatives that would allow the league to impose harsher and quicker discipline on players who get into trouble off the field. These initiatives are expected to be announced prior to the NFL draft, held April 28 and 29. The new commissioner has recognized that his employees are changing and that the contours of the law have changed, and he is taking affirmative steps to correct the problem before it threatens the league's viability. It is this proactive approach that has made the NFL the indescribable success that it is.
Employers, take heed. An ongoing evaluation, review and, if necessary, redrafting of your workplace conduct policies is a necessity in the ever-changing workplace. While this review truly is prudent with regard to conduct policies such as workplace violence, substance abuse and confidentiality, the review and modification with respect to Equal Employment Opportunity Policies not only are wise from an employee-relations standpoint but may be legally required. This article will focus on specifically two sections of your EEO Policy: (1) the expressly listed protected classes and (2) the prohibition on retaliation.
The Protected Classes
Of all of the provisions in your EEO Policy, the list of those classes protected by the law may be the most fluid. Why? Those protected classes change frequently. While the federally protected classes have not in recent past changed - and certainly do not change without a great deal of notoriety - the classes protected under state and local law are altered more often than most employers realize and often are modified without a great deal of notification to employers or to the general public.
For example, most employers do not realize that many states include among their protected classes marital status and genetic information. In others, victims of domestic abuse and individuals with sickle cell traits are afforded protection from discrimination and differential treatment in the workplace. In these locations, such protections must be made known to employees.
Recently, the Governor of New Jersey signed legislation expanding the protections in the state's anti-discrimination and anti-harassment statute. In December 2006, New Jersey approved two bills that, among other things, added two additional protected classes to the New Jersey Law Against Discrimination ("LAD"): (1) membership in a civil union and (2) gender identity or expression. The civil union law went into effect on February 19, 2007, and the gender identity and expression addition to LAD takes effect on June 17, 2007. This means that New Jersey employers not only may legally be required to modify their EEO Policies to include these protected classes, but also that if the employer does not, the employer may create very real employee relations issues. (Please also understand that the creation of these types of new protected classes certainly affects other workplace policies including, but certainly not limited to, family leave, bereavement leave, provision of life insurance and dress code).
By way of example, assume a New Jersey employer's EEO Policy expressly lists those classes protected and that same employer's policy fails to add membership in a civil union or gender identity or expression. That employer is sending a clear message to its employees that, even though the law says these classes deserve the same protection as other protected classes such as age, gender or religion, the employer does not agree. Those employees who are entitled to this express protection most certainly will feel slighted.
As stated above, the employee relations issue is not the only concern with an employer's failure expressly to add to its EEO Policy those classes protected by state and local law. There are very real legal issues at work here as well. Assume that same employer receives notice of a Charge of Discrimination or, even worse, a lawsuit claiming harassment or discrimination based on membership in a civil union or gender identity or expression. In not proactively taking steps to ensure compliance with the law, the employer has created a very tenuous legal position.
The plaintiff's lawyer most certainly will point to the employer's EEO Policy, the very document designed to assist the employer in a discrimination or harassment claim, as evidence demonstrating discriminatory animus. This EEO Policy shows that, while the employer believes membership in certain classes deserves legal protection, those in other, equally protected classes are not worthy of that same protection. How can this employer now articulate to a court or to the eight reasonable people sitting in the jury box that it does not discriminate or tolerate harassment towards members of these protected classes when it failed to add them to its EEO Policy? That is going to be an extraordinarily difficult, if not impossible, argument to make.
Ask yourself, what would the NFL do? Follow the changes in the law and revise your EEO Policy accordingly.
Modifying those expressly listed protected classes is not the only change that needs to be made to the prudent employer's EEO Policy. As employers are aware, in the summer of 2006, the United States Supreme Court issued its decision in Burlington Northern v. White, a decision that greatly expanded the scope of employer conduct that may constitute unlawful retaliation under Title VII of the Civil Rights Act of 1964.
This decision significantly impacts an employer's EEO Policy. Prior to the Burlington Northern decision, an employer could be held liable for unlawful retaliation only if it engaged in conduct that constituted an adverse employment action. For an adverse employment action to exist, there must have been an impact on the terms and conditions of the employee's employment, such as a decision to discharge, not to give a raise to or fail to hire. The Burlington Northern decision, however, made clear that such a tangible adverse action no longer is required. The Supreme Court announced not only that an individual may maintain a retaliation claim if the conduct would be materially adverse to a reasonable employee, but also ruled that retaliatory adverse actions outside of the workplace are actionable.
In light of the Burlington Northern decision, employers must ensure that their current EEO Policy contains a thorough anti-retaliation provision or, even more effectively, create a new stand-alone policy demonstrating that workplace retaliation will not be tolerated and will be dealt with severely. This modified or new policy should include, at a minimum, the following:
A statement that retaliation is prohibited not only by law but also and equally by organization policy;
A statement that retaliation will not be tolerated and retaliatory acts will lead to severe disciplinary action up to and including termination of employment;
Examples of the kind of conduct that may be considered retaliatory under the organization's policy (e.g., tangible adverse employment actions such as denial of promotion as well as other material changes in the terms and conditions of employment such as work assignments);
A statement that complaints of discrimination, harassment and retaliation are taken very seriously and will promptly be investigated;
A statement that the anti-retaliation policy protects not only those who bring complaints of harassment, discrimination or retaliation, but also those who participate in the investigatory process (such as witnesses); and
A statement that prohibited retaliation includes adverse actions independent of the workplace.
An organization's failure to include such a policy in its EEO Policy or to create a stand-alone anti-retaliation provision not only may result in an uncomfortable working environment that permits retaliatory actions on the part of its supervisors or managers but absolutely also could create liability or increased liability in the event a retaliation lawsuit is filed. For example, in Gallina v. Mintz, Levin, the United States Court of Appeals for the Fourth Circuit Court, in assessing whether punitive damages were appropriate in a retaliation case, stated that "there was no evidence that [the employer] had any specific policy regarding retaliation."
Ask yourself, what would the NFL do? Revise your anti-retaliation provision to ensure compliance with the law and to demonstrate to your employees that this patently unlawful conduct will not be tolerated.
Use the NFL as an example, and be proactive. Recognize that the law has changed, and take steps now (before a claim arises) to ensure that your EEO Policy not only sets the appropriate tone for your workplace but also includes all of the provisions necessary to ensure compliance with the law.
Michael S. Cohen is a Partner in the Employment Services Practice Group of WolfBlock. He concentrates his practice in the areas of training and counseling.