by Kylie Crawford TenBrook, Best Western International, Inc.
In April, recordings of Los Angeles Clippers owner Donald Sterling making racist remarks to his half-black, half-Mexican girlfriend assistant* surfaced. Among those remarks were the following:
It bothers me a lot that you want to broadcast that you’re associating with black people. Do you have to?
You can sleep with [black people]. You can bring them in[;] you can do whatever you want. The little I ask you is not to promote it on [Instagram] . . . and not to bring them to my games.
Don’t put [Magic Johnson] on an Instagram for the world to have to see so they have to call me. And don’t bring him to my games.
Sterling ultimately was fined $2.5 million (the highest possible fine) by the NBA and, in a beautiful twist of irony, was banned from the very games he apparently didn’t want black people to attend.
Employment law gold
The first and most obvious employment law issue in this case involves a “supervisor” making racist comments. When a coworker engages in discriminatory conduct toward another coworker, the employer will not be liable for the employee’s actions if it (1) has a policy prohibiting such conduct, (2) has a procedure for employees to report such conduct, (3) promptly investigates any allegations of such conduct, and (4) takes remedial action (if any is necessary) following the investigation.
However, when a “supervisor” (which the U.S. Supreme Court defined in Vance v. Ball State University as an individual who has the power to make “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”) engages in discriminatory conduct, the employer is not able to take advantage of that defense. In other words, if an employee can demonstrate that the conduct rises to the level of discrimination under the law, the employer will be liable.
Playoff speech
The second issue is not so obvious. In response to and in protest of Sterling’s comments, the Clippers players dropped their warm-up jackets midcourt during a pregame warm-up and wore their team-issued warm-up shirts inside out. Other NBA teams did similar things to show solidarity.
I overheard some folks talking about how the players were exercising their First Amendment rights to free speech. While employees have no First Amendment right to anything in private employment, in recent years the National Labor Relations Board (NLRB) has essentially created a right to free speech under Section 7 of the National Labor Relations Act (NLRA).
Section 7 prohibits employers from disciplining employees for discussing the terms and conditions of employment. The discussion can be verbal or nonverbal. By stepping out onto the court with the team’s name obscured, the players were making a statement and showing support for one another in protest of Sterling’s comments. Had they been disciplined for engaging in that activity, it likely would have been a violation of the NLRA. Notably, the other teams that acted in solidarity, like the Miami Heat, likely also were engaging in protected activity.
Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.