The major class action lawsuit filed by Brian Flores alleging that the NFL routinely engages in race discrimination in hiring and promoting Black coaches and executives was the focus of Law360’s interview with employment discrimination lawyer and Bachman Law founder Eric Bachman.
Law360’s Zachary Zagger quoted Bachman:
“The fact that a lawsuit like this has never happened, this will be the first real opportunity to dig into this issue and how teams are really going through the hiring process,” said Eric Bachman of Bachman Law, who handles employment discrimination cases. “I am not sure teams are really going to be happy about having this information out there because I don’t think they are going to be able to justify the results.”
The article also notes the startling disparity between the number of Black players in the NFL and the dearth of Black coaches and executives in the league.
For example, there is currently only one Black head coach after two of the three Black coaches in the league were fired this season — including Flores, who was controversially let go despite back-to-back winning seasons.” Five head coaching vacancies remain to be filled.
Zagger continues, “[t]he disparities date back to the league’s earliest years. From 1925 to 1988, NFL teams did not hire a single Black head coach. As Bachman has pointed out, in the time since the Los Angeles Raiders hired Art Shell in 1989, there have been fewer than two dozen Black head coaches, including those who served in interim capacities.”
Legal elements of an employment discrimination case against an NFL team
Flores’s lawsuit asserts that the NFL and various teams violated Title VII of the 1964 Civil Rights Act and 42 U.SC. section 1981, as well as other laws. The case is proceeding as a class action but the legal elements to prove an individual race discrimination case are also instructive.
To prove intentional promotion discrimination under Title VII or Section 1981, a Black NFL head coach candidate must first show that:
- they are a member of a protected class;
- they applied for and were qualified for the head coach position; and
- after they were rejected, the position remained open or was filled by a person with similar qualifications.
Many unsuccessful Black head coach candidates will probably meet this initial (prima facie) case of discrimination. The next step is for the NFL team to state a legitimate, non-discriminatory reason for why it did not select the Black coach for the job. It is nearly unheard of for an employer to not provide some explanation for why it did not hire someone.
As a result, where the rubber hits the road in these cases is finding out whether the rejected candidate can show that the team’s reason for its decision was a sham for impermissible discrimination and/or that the explanation is unworthy of credence. See, e.g., Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148 (2000).
Proving that an NFL’s team claimed reason for not hiring a Black head coach is actually a pretext for discrimination can take a variety of forms. For example:
- Evidence that the rejected coach was substantially better qualified than the coach selected;
- White coaches with similar experience and background have been given better opportunities or have been “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 in selecting the head coach; and
- Statistical evidence related to the team’s and/or the NFL’s history of not hiring Black coaches
This last type of evidence could be particularly helpful in proving a Title VII race discrimination claim. Statistical data and comparative information about an NFL team’s previous hiring decisions for the head coach job can provide necessary background and historical context for how a particular decision was made.
There will be a lot to unpack in this case and additional analysis will be forthcoming.