The sporting world has been abuzz recently with news the Washington NFL team is changing its name and logos to move away from their overt Native American imagery. Cleveland’s Major League Baseball team is considering a similar move. Looking at how the teams have defended their names in the past, we’ve identified a few lessons for employers that may be facing hostile work environment claims of their own.
How We Got Here
For many years, representative groups have petitioned the Washington and Cleveland sports teams to stop using their racial and cultural identities as mascots. The teams (and many of their supporters) have countered they are highlighting the groups’ virtues and achievements and that many group members favor their use.
Until very recently, the Washington football team had adamantly resisted any change, with the owner stating on the record in 2013 that he would never change the team name. The Cleveland baseball club has been a bit more conciliatory, having recently retired its long-standing mascot that was an exaggerated caricature.
While the branding concerns of major sports franchises are unique, they are somewhat comparable to the issues ordinary employers might face if employees claim a hostile work environment arising from the use of racial or ethnic stereotypes in the workplace or their toleration by other workers.
Since the complaints are similar, it’s instructive to review the defenses the team owners have offered in the past to defend their use of cultural imagery and whether they might be useful in opposing a hostile work environment claim.
‘I’m Trying to Honor Those Groups’
As noted above, owners of the Washington and Cleveland franchises (and other teams with similar names) all say that their intent is to honor Native Americans’ achievements and positive qualities. Fair enough—we will take them at their word.
With hostile work environment claims, however, we have known for more than 30 years that intent is far outweighed by impact. If an employee complains about a racially insensitive remark or a dirty joke, the defense of “I didn’t mean it” or “I was just trying to be funny” is unlikely to carry much weight if the impact created a hostile environment for the complaining individual.
(Author’s note: In a case many years ago, a supervisor with the last name of Lynch referred to his department as his “Lynch mob.” It was viewed as a joke back then but would likely cause a very negative reaction today, no matter how innocent or jovial the supervisor might seem.)
‘These Were Terms of Respect When I Named the Team’
Owners of sports teams using Native American imagery typically explain that when the organization was formed and/or the name was adopted, the term (e.g., warrior, brave) was considered to be a signal of respect. Regardless of whether that is true, the defense would be largely unavailing in the workplace today if the term is now considered inappropriate.
Words and phrases change over time, so regardless of what it meant originally, current usage will control. Consider, for example, how the word “gay” means something very different today than it did in the era we used to call “the gay ’90s.” A number of other words previously used acceptably to describe someone (e.g., “retarded”) are also now generally considered offensive.
Indeed, the Minnesota Supreme Court ruled that while we’ll continue to evaluate harassment claims in terms of whether the conduct is severe or pervasive, the threshold has been lowered. The court specifically advised that conduct determined in past cases not to be severe or pervasive might now be viewed differently in accordance with current sensibilities. Therefore, explanations such as “we have always used that term” or “we got sued for the same thing 10 years ago and won” will be less successful in court today.
(Author’s second note: Even the term “owner,” as used in this article, has been subject to challenge by some African American athletes on the grounds they are people, and nobody owns people.)
‘I’ve Asked Around, and Nobody Seems to Mind’
The owners of the teams in question often point to the results of surveys they’ve taken of Native American people to show the majority of respondents favor the name. They also point to spokespeople of various tribes who seem to approve the use of the teams’ imagery.
In employment law, however, an employee’s right to be free from harassment isn’t a matter of popular vote. Regardless of how often a supervisor uses a discriminatory phrase without complaint, or how many coworkers might express they don’t object to it, any employee has the right to object to the use of overtly discriminatory language or conduct, and the defense of “nobody else complained” is likely to be unavailing.
Takeaways for Employers
The sports world is very different than other work settings. Indeed, it has been said many times that the same act of violence on a football field that earns fame and fortune for athletes would get them 5 years in prison anywhere else. For that reason, employers are strongly encouraged not to borrow from sports owners’ playbooks when defending the use of racially or ethnically charged language or behaviors.
Dennis J. Merley is an attorney with Felhaber Larson in Minneapolis, Minnesota. You can reach him at dmerley@felhaber.com.