Employers firing Employees for being Obese

By: Alexandra Laird

According to the most recent data from the Center for Disease Control, more than one-third of American adults are obese.^[1]  A person is considered obese when their weight is higher than what is considered as a healthy weight for a given height.^[2]  With obesity impacting such a large portion of the American public, employers are left with many questions regarding their responsibilities to obese applicants and employees.^[3] The answers to these questions depend on a number of factors, including the reasons underlying obesity and the jurisdiction in which the employer does business.^[4]

In the recent decision of Richardson v. Chicago Transit Authority, the Seventh Circuit held that obesity is not a protected disability under the Americans with Disabilities Act (ADA) unless a plaintiff can demonstrate that it is caused by an underlying physiological disorder or condition.^[5] The holding brings the Seventh Circuit in line with decisions on the issue from the Second Circuit, Sixth Circuit, and Eighth Circuit.^[6] However, the First Circuit has reached the opposite conclusion, holding, based on expert testimony presented at trial, that morbid obesity, independent of an underlying physiological disease or disorder, can be a physical impairment under the ADA, and taking the position that a jury should decide the issue.^[7]

The facts of this case are as follows: Mark Richardson was a full-time bus operator for the Chicago Transit Authority (hereinafter CTA) when his weight increased from 350 pounds to 566 pounds.^[8] In February 2010, Richardson took leave from work because he became ill with the flu. After seeing a medical provider, the doctors determined that Richardson should not return to work until he gained control of his blood pressure.^[9] The CTA then classified Richardson as medically unfit to perform the essential functions of his job.^[10] In September 2010, CTA’s third-party medical provider deemed Richardson fit to return to work and concluded that Richardson could drive CTA’s buses safely.^[11]However, they did note several safety concerns. Later CTA concluded that it would be unsafe for Richardson to operate a bus, it classified him as medically unfit again. Eventually, CTA terminated Richardson’s employment in February 2012.^[12]

Richardson’s argument was that his obesity was a protected disability under the ADA following the passage of the ADA Amendments Act (hereinafter ADAAA) because of the expansion of the terms “substantially limits” and “major life activity”.^[13]  Richardson also argued that he had a “perceived disability”, but this argument failed because he did not introduce evidence that any individual at CTA believed a physiological disorder or condition caused his obesity.^[14]

Richardson filed suit under the ADA against CTA, alleging that CTA had unlawfully refused to allow him to return to work because it regarded him as too obese to work as a bus operator.^[15] Ultimately, the district court granted CTA’s motion for summary judgment, finding that Richardson had not presented evidence that an underlying physiological disorder or condition had caused his obesity.^[16] The court relied on the definition of physical or mental impairment found at 29 C.F.R. § 1630.2(h)(1) to conclude that absent evidence of an underlying physiological disorder or condition, the court declined to recognize obesity as a disability protected by the ADA.^[17]

Employers may want to keep in mind that state and local laws may define “disability” differently than the ADA. For example, a state law may not require that an impairment result from a physiological disorder.^[18] Thus, while obesity may not qualify for legal protection under the ADA, it may be a protected category under a local jurisdiction.^[19]   

Since the holding in Richardson v. CTA, psychological disorders or conditions may be looked at to determine if obesity will be considered a disability under the ADA. But first, one main disorder/condition stated by the Center for Disease Control is that there is a significant relationship between obesity and mental illness.^[20] Depression can lead to obesity but conversely obesity can lead to depression.^[21] This makes it difficult to understand how the psychological disorders may be measured to determine this standard.^[22]

Some other examples according to the World Health Organization, is patients with a history of attention-deficit/hyperactivity disorder (hereinafter ADHD) have a greater chance of becoming obese.^[23] The reasons cited for the link between obesity and psychiatric problems are unsurprising: poor self-image, physical inactivity, the biological disruptions caused by obesity, and the social stigma related to being overweight all contribute to a predisposition to mental illness.^[24]

Lastly, there are many medications involved that treat psychological issues and conditions. Many medications to treat serious mental illness also have a side effect of weight gain, which again leaves us with another gray area to consider.^[25]

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^[1] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019) https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

^[2] Id.

^[3] Id.

^[4] Id.

^[5] Richardson v. Chi. Transit Auth., 926 F.3d 881 (7th Cir. 2019).

^[6] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019) https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

^[7] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019)https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

^[8] Richardson v. Chi. Transit Auth., 926 F.3d 881 (7th Cir. 2019).  

^[9]  Id.

^[10] Id.

^[11] Id.

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Hobbs & Dill, United States: Obesity Alone Is Not an ADA-Protected Disability in the Seventh Circuit, Ogletree Deakins (Nov. 7, 2019) https://ogletree.com/international-employment-update/articles/november2019/united-states/2019-11-07/united-states-obesity-alone-is-not-an-ada-protected-disability-in-the-seventh-circuit/.

^[19] Id.

^[20] Id.

^[21] Id.

^[22] Id.

^[23] Davies, Mental Illness and Obesity, Psychiatry Advisory (Feb 26, 2016) https://www.psychiatryadvisor.com/home/conference-highlights/aaic-2015-coverage/mental-illness-and-obesity/.

^[24] Id.

^[25] Littleberry, Obesity and Mental Health: Is there a link? OAC (2017)

https://www.obesityaction.org/resources/obesity-and-mental-health-is-there-a-link/.

Drawbacks of mandatory arbitration agreements 

By: Saman Aslam

Growing number of employers utilize mandatory arbitration agreements in employment contracts because it provides numerous benefits.^[1]  The various benefits of arbitration include: no juries, private and confidential proceedings, it is less expensive than litigation, and the proceedings are more streamlined and efficient.^[2]  However, recent case law,^[3] the policy choices of the federal government,^[4] and the state laws^[5] passed against the enforcement of arbitration agreements are significant drawbacks employers should consider in their risk assessment of employing mandatory arbitration agreements. 

One disadvantage of mandatory arbitration agreements is that when an arbitrator makes a legal mistake the arbitration process provides no grounds for an appeal.^[6]  The basis to review an arbitration decision in court are very limited mostly involving misconduct by the arbitrator.^[7]  Therefore, such challenges are often unsuccessful.^[8]  In Warfield v. Icon Advisers, Inc., James Warfield, a securities broker of North Carolina brought suit against his former employer, Icon Advisers, Inc.^[9]  Warfield contented his former employer terminated him without cause.^[10]  Both parties pursued to resolve their dispute through an arbitration panel within the Financial Industry Regulatory Authority.^[11]  Warfield argued that given the fact the dispute had to be resolved by arbitration it implied he could only be terminated for cause.^[12]  The arbitration panel agreed with the employee and without providing an explanation held the employer liable for about $1.2 million in compensatory damages.^[13]  

The district court vacated the decision by the arbitration panel and held that North Carolina is an at-will employment jurisdiction.^[14]  At-will employment means both the employer and the employee can cease the employment relationship for any reason without notice or cause.^[15]  The court determined that the arbitration panel’s decision demonstrated manifest disregard of the law when a for-cause provision was implied into a private employment contract which explicitly provided for at-will employment.^[16]

On appeal, the Fourth Circuit applied a high standard in reversing an arbitration panel’s decision.^[17]  In order to establish manifest disregard of the law the party must show both that the disputed legal principle is clearly defined and not subject to debate and that the arbitrator refused to apply that legal principle.^[18]  The Fourth Circuit also took into account that other circuit courts specifically the Seventh^[19] and Eighth^[20] Circuits have found the existence of arbitration agreements to imply protections from being terminated without cause.^[21]  Given the fact that courts disagree on this legal question the Fourth Circuit concluded that this weighed against second guessing the arbitrator’s award and determined that the employer failed to establish that arbitrators manifestly disregarded the law.^[22]  Therefore, the district court’s decision was reversed and the employee’s $1.2 million award was reinstated.^[23]  This case demonstrates the risk involved in employers use of mandatory arbitration agreements that have the potential to change their at-will employment relationship with their employees.^[24]  Further, this decision points to the limited opportunity available for the review of an adverse decision.^[25]

Moreover, on March 3, President Joe Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” after it was successfully passed by both chambers of Congress.^[26]  The federal government is following this trend of moving away from mandatory arbitration agreements demonstrated by the recent policy choices exhibited by federal agencies. On March 21, 2022, the acting Solicitor of Labor Seema Nanda, Department of Labor’s (hereinafter “DOL”) Chief legal officer filed an amicus brief at the National Labor Relations Board (hereinafter “NLRB”).^[27]  DOL supported NLRB’s initiative to revisit Trump-era precedent on whether employers violate federal labor law by permitting mandatory arbitration agreements that prohibit workers from discussing the policies with their colleagues.^[28]  DOL asserted that the confidentiality requirements of mandatory arbitration agreements prevent the enforcement of worker protection laws.^[29]  Ms. Nanda proclaimed “[DOL] considers confidentiality agreements a direct threat to its ability to effectively enforce the country’s workplace protection laws.”^[30] Consequently, workers subject to these mandatory arbitration agreements are reluctant to report violations and publicly hold their employers accountable.^[31]  Further, Ms. Nanda highlighted the disadvantages of mandatory arbitration agreements by stating “forced arbitration, operate to silence workers and chill complaints, cooperation with government agencies like DOL, and collective action.”^[32]  

Moreover, several states such as New York, California, Illinois, Maryland, New Jersey, Vermont, and Washington have enacted employee friendly legislation prohibiting enforcement of mandatory arbitration agreements specifically in the areas of discrimination, retaliation, and sexual harassment.^[33]  The state of Washington moved one step forward on March 24, 2022, by enacting the Washington’s Silenced No More Act.^[34]  Under this law it will be unlawful for employers to require or even request that workers sign non-disclosure agreements in other words mandatory arbitration agreements that limit their ability to publicly hold their employers liable for violations of public policy such as illegal discrimination, harassment, retaliation, and wage and hour violations.^[35]

Overall, the trend evident from case law^[36], federal administration^[37], and state law^[38] is to move away from and prohibit mandatory arbitration agreements therefore employers should consider the risks associated with them prior to utilizing them.

---

^[1] See Alexander J.S. Colvin, The growing use of mandatory arbitration, Econ. Pol’y Inst. (Apr. 6, 2018), https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration-access-to-the-courts-is-now-barred-for-more-than-60-million-american-workers/.

^[2] See Jay Starkman, Pros and cons of arbitration agreements for employers, The Bus. Journals (Oct. 25, 2015), https://www.bizjournals.com/bizjournals/how-to/growth-strategies/2015/10/pros-and-cons-of-arbitration-agreements.html.

^[3] See Warfield v. ICON Advisers, Inc., 2022 U.S. App. LEXIS 5066, at *1 (4th Cir. Feb. 24, 2022).

^[4] See Jon Steingart, DOL Takes Rare Step In Prodding NLRB On Worker Arbitration, Law360 (Apr. 1, 2022), https://www-law360-com.ezproxy.hofstra.edu/employment-authority/articles/1479314/dol-takes-rare-step-in-prodding-nlrb-on-worker-arbitration.

^[5] See Alan Kabat & Samuel Finn, Congress Must Act To Curb Workplace Arbitration Pacts, Law360 (Aug. 11, 2021), https://www-law360-com.ezproxy.hofstra.edu/articles/1411320/congress-must-act-to-curb-workplace-arbitration-pacts.

^[6] See Risk & Compliance: Pros and Cons of Mandatory Arbitration Provisions, Net Assets (Nov. 28, 2018), https://www.netassets.org/blogs/net-assets/2018/11/28/risk-compliance-pros-and-cons-of-mandatory-arbitra#:~:text=Potential%20Downsides%20to%20Arbitration&text=The%20arbitration%20process%20provides%20virtually,more%20limited%20in%20arbitration%20proceedings.

^[7] See Starkman, supra note 2.

^[8] Id.

^[9] See Warfield v. ICON Advisers, Inc., 2022 U.S. App. LEXIS 5066, at *1.

^[10] Id.

^[11] Id. at 2.

^[12] Id.

^[13] Id. at 3.

^[14] Id. at 2.

^[15] Id. 

^[16] Id. at 3.

^[17] Id.

^[18] See Jones v. Dancel, 792 F.3d 395, 402 (4th Cir. 2015).

^[19] See Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 312 (7th Cir 2015).

^[20] See Painewebber, Inc. v. Agron, 49 F.3d 347, 352 (8th Cir 2015).

^[21] See Warfield v. ICON Advisers, Inc., 2022 U.S. App. LEXIS 5066, at *5-6.

^[22] Id. at 6.

^[23] Id. at 14.

^[24] See Miles & Stockbridge P.C. & Brianna Gaddy, Fourth Circuit’s Reinstatement of $1.2 Million Award Highlights Risk of Arbitration Agreements, Jd Supra (Mar. 30, 2022), https://www.jdsupra.com/legalnews/fourth-circuit-s-reinstatement-of-1-2-5716792/.

^[25] Id.

^[26] See Mark S. Goldstein et al., Biden signs federal law restricting sexual harassment and assault arbitration, Empl’t Law Watch (March 13, 2022), https://www.employmentlawwatch.com/2022/03/articles/us-alert/biden-signs-federal-law-restricting-sexual-harassment-and-assault-arbitration/; Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 117 Bill Tracking H. R. 4445.

^[27] See Jon Steingart, supra note 4.

^[28] See Kevin Stawicki, NLRB Looks To Revisit Precedent On Mandatory Arbitration, Law360 (Jan. 18, 2022), https://www-law360-com.ezproxy.hofstra.edu/employment-authority/articles/1456473.

^[29] Id.

^[30] Brief for the Secretary of Labor as Amicus Curiae Supporting NLRB at 1, 18, Ralphs Grocery Co. v. NLRB, No. 16-71422 (Mar. 21, 2022).

^[31] Id.

^[32] Id.

^[33] See Kabat, supra note 5.

^[34] See Hannah Albarazi, One By One, States Are Banning NDAs To Protect Workers, Law360 (Apr. 1, 2022), https://www-law360-com.ezproxy.hofstra.edu/employment-authority/articles/1476428/one-by-one-states-are-banning-ndas-to-protect-workers.

^[35] Id.

^[36] See Warfield v. ICON Advisers, Inc., 2022 U.S. App. LEXIS 5066, at *1.

^[37] See Steingart, supra note 4.

^[38] See Kabat, supra note 5. 

Brian Flores’s Discrimination Suit Cannot Hurdle Class-Action Certification

By Ian Landman

I. Background

After leading the Miami Dolphins to their second consecutive winning season, Brian Flores was shockingly fired from his role of Head Coach.^[1] The decision was a head scratcher for many in and around the National Football League (hereinafter “NFL”).^[2] Two teams, the New York Giants and Denver Broncos, quickly moved to interview Flores for their Head Coach vacancies, but both decided to go in a different direction.^[3]

Flores’s allegation of discriminatory hiring practices in the NFL was sparked when he received a text message from New England Patriots Head Coach Bill Belichick. ^[4] Belichick accidently revealed that Brian Daboll was to be named the next Giants Head Coach before Flores’s interview process had finished.^[5] It appeared the Giants had already made their decision on who would fill their Head Coach position without Flores getting a fair shot.^[6]

Flores subsequently filed a class-action lawsuit against the NFL and all thirty-two of its teams, alleging discrimination in the hiring process citing to the contentious Rooney Rule.^[7] The Rule was adopted by the NFL in 2003 with a goal of “encourag[ing] hiring practices to foster and provide opportunity to divers[ify] leadership throughout the NFL.”^[8] The rule, however, has had little impact.^[9] Only eighteen percent of NFL coaches have been people of color since 2011.^[10] Flores brought suit alleging his interviews with both the Giants and the Broncos were shams to fulfill the rule’s requirements.^[11]

II.        Issue

Flores’s decision to bring suit as a class-action may prove fatal before the discrimination claim can be decided on the merits. To certify his class, Flores must show:

the class is so numerous that joinder of all members is impracticable [(numerosity)]; there are questions of law or fact common to the class [(commonality)]; the claims or defenses of the representative parties are typical of the claims or defenses of the class [(typicality)] and; the representative parties will fairly and adequately protect the interests of the class [(adequate representation)].^[12]

Flores currently faces two hurdles to certifying his class: numerosity and commonality. Determining whether the class is so numerous, though, is difficult since just two other coaches have joined and more may follow.^[13] Regardless, Flores will struggle to prove the commonality prong where there are likely not questions of law and fact common to the class.^[14]

III.       Discussion

In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court laid out the two ways a class can satisfy the commonality requirement.^[15] First, Flores would have to prove the NFL used a biased testing procedure to evaluate both applicants and incumbent employees.^[16] However, the Supreme Court held this inquiry did not apply when each store utilizes discretionary decision making in evaluating applicants.^[17] Also, a policy of allowing discretion by “local supervisors” has been held by the Supreme Court to be a common and presumptively reasonable way of doing business that itself raises no inference of discriminatory conduct.^[18] The NFL, like Wal-Mart, gives essentially full discretion to the individual franchises in hiring their coaching staff^[19] so this determination would not apply.^[20]

Second, Flores would have to show “significant proof that the [NFL] operated under a general policy of discrimination” and such discrimination manifested itself “in the same general fashion.”^[21] This argument, though, would likely fail, like the Wal-Mart claimants’.^[22] The Supreme Court in Wal-Mart found dispositive that the organization had a policy of forbidding discrimination and imposed penalties for denials of equal employment.^[23] Like Wal-Mart, the NFL has a policy forbidding discrimination in their collective bargaining agreement with the NFL Players Association.^[24] Also, the NFL has imposed penalties for violating the policy as recently as 2021, where they fined the Washington Commanders $10 million for bullying, intimidation, and multiple allegations of harassment.^[25]

Like the Wal-Mart class, the Flores class will likely have to result to relying on a “social framework” analysis testifying that the NFL has a “strong corporate culture” making it “vulnerable” to racial bias.^[26] However, it would be very difficult to determine with any specificity how regularly racial stereotypes play a meaningful role in employment decisions of NFL franchises.^[27] There are a multitude of qualitative and quantitative factors the teams use to determine who they hire for Head Coaching roles.^[28] Because of this, each individual hiring decision is too attenuated to constitute a strong corporate culture vulnerable to racial bias.

IV.       Conclusion

             Since Flores’s class will not be able to certify due to lack of commonality between the individual claims,^[29] the class-action is likely to fail before it is heard on the merits.^[30] However, Flores and each coach will be able to bring individual suits against the organizations that they allege discriminated against them.^[31] No matter the result, Flores has succeeded in bringing new light to the longstanding and continuing issue of the NFL’s “dismal diversity numbers.”^[32]

---

^[1] Fired Miami Dolphins Coach Brian Flores sues NFL, Alleging Racist Hiring, CNBC (Feb. 1, 2022) https://www.cnbc.com/2022/02/01/fired-dolphins-coach-brian-flores-sues-nfl-alleging-racist-hiring.html. The Dolphins released a statement from team owner Stephen Ross justifying their decision stating, “[a]fter evaluating where we are as an organization … I determined that key dynamics of our football organization weren’t functioning at the level I want it to be….” Miami Dolphins (@MiamiDolphins), Twitter (Jan. 10, 2022, 9:34 AM) https://twitter.com/MiamiDolphins/status/1480548522550300677?s=20&t=Okku1VY0zeWnLqfT4YF0jw.

^[2] See Patrick Walker, Brian Flores Fired: Dolphins Send Shockwaves Throughout NFL with Unexpected Divorce from Head Coach, CBS (Jan. 10, 2022) https://www.cbssports.com/nfl/draft/news/2022-nfl-draft-better-than-team-here-are-20-prospects-pete-prisco-likes-more-than-the-scouts-do/.

^[3] See Marcel Louis-Jacques, Brian Flores Sues NFL, Three Teams as Former Miami Dolphins Coach Alleges Racism in Hiring Practices, ESPN (Feb. 1, 2022) https://www.espn.com/nfl/story/_/id/33194862/brian-flores-sues-nfl-others-former-miami-dolphins-coach-alleges-racism-hiring-practices.

^[4] Tyler Lauleta, Brian Flores’ Discrimination Lawsuit is Exposing the NFL’s Worst-Kept Secret – the Rooney Rule is Failing Black Coaches, Insider (Feb. 4, 2022) https://www.insider.com/brian-flores-lawsuit-rooney-rule-failed-2022-2.

^[5] Id. The text message stated, “[heard from] Buffalo & NYG that you are their guy.” Flores then asked if Belichick meant to text Brian Daboll, another top candidate for the Giants Head Coach job who was currently the Buffalo Bills Offensive Coordinator. Belichick responded “I double checked and misread the text. I think they are naming Brian Daboll. I’m sorry about that.” Id. 

^[6] Id.

^[7] The Athletic NFL Staff, Brian Flores NFL Lawsuit: Live Updates, News as Former Dolphins Coach Files Discrimination Suit, Signs with Steelers, The Athletic (Feb. 22, 2022) https://theathletic.com/live-blogs/brian-flores-nfl-lawsuit-live-updates-news-as-former-dolphins-coach-files-discrimination-suit-against-all-32-teams/PqUm2Bl11Qjl/ (Flores specifically named the Miami Dolphins, the New York Giants, and the Denver Broncos).

^[8] The Rooney Rule, NFL Football Operations, https://operations.nfl.com/inside-football-ops/diversity-inclusion/the-rooney-rule/ (last visited Apr. 14, 2022).

^[9] See generally Scott Neuman, Why a 20-Year Effort by the NFL Hasn’t Led to More Minorities in Top Coaching Jobs, NPR (Feb. 3, 2022) https://www.npr.org/2022/02/03/1075520411/rooney-rule-nfl.

^[10] Id. (currently Mike Tomlin of the Pittsburgh Steelers is the only Black Head Coach. Ron Rivera, Latino, of the Washington Commanders and Robert Saleh, Lebanese dissent, of the New York Jets are the only other nonwhite Head Coaches in the NFL.)

^[11] Lauleta supra note 5.

^[12] Fed. R. Civ. P. 23(a)(1-4).

^[13] Ken Belson, Two Black Coaches Join Brian Flores’s Lawsuit Against the N.F.L., N.Y. Times (Apr. 7, 2022) https://www.nytimes.com/2022/04/07/sports/football/nfl-discrimination-ray-horton-steve-wilks.html.

^[14] Fed. R. Civ. P. 23(a)(2).

^[15] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 353 (2011), Telephone Company of the Southwest v. Falcon, 457 U.S. 147,159 (1982).

^[16] Wal-Mart Stores, Inc., 564 U.S. at 353.

^[17] Id.

^[18] Id. at 355 (only unreasonable when the plaintiff can identify “a common mode of exercising discretion that pervades the entire company”).

^[19] Deena Zaru, NFL Says Each Team Must Hire Minority Offensive Coach Amid Push for Diversity, ABC News (Mar. 29, 2022) https://abcnews.go.com/US/News/nfl-team-hire-minority-offensive-coach-amid-push/story?id=83742037 (new NFL rule requires all teams to hire at least one minority or female coach as an offensive coach).

^[20] Wal-Mart Stores, Inc., 564 U.S. at 353.

^[21] Id.

^[22] See id. at 353-54.

^[23] Id.

^[24] Tiffany Anton, NFL’s Anti Discrimination Policy Includes Sexual Orientation, Bleacher Report (Sept. 27, 2011) https://bleacherreport.com/articles/868038-nfls-anti-discrimination-policy-includes-sexual-orientation (“There will be no discrimination in any form against any player by … any Club … because of race, religion, national origin, sexual orientation …”).

^[25] NFL Fines Washington Football Team $10M Following Investigation Into Team Culture, NFL (July 1, 2021) https://www.nfl.com/news/nfl-fines-washington-football-team-10m-following-investigation-into-team-culture.

^[26] Wal-Mart Stores, Inc., 564 U.S. at 354.

^[27] Id. at 344, 357 (even if a regression analysis shows a pattern of discriminatory hiring, it would fail to demonstrate that commonality of issues exists).

^[28] See e.g., Sean Tomlinson, The Terrifying Process of Hiring a New Head Coach in the NFL, Bleacher Report (Jan. 3, 2017) https://bleacherreport.com/articles/2684789-the-terrifying-process-of-hiring-a-new-head-coach-in-the-nfl (interviewing former Philadelphia Eagles President Joe Banner on his criteria for filling the 1999 Head Coach vacancy).

^[29] See discussion supra § III.

^[30] See e.g., Wal-Mart Stores, Inc., 564 U.S. at 359-60.

^[31] China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1805 (2018).

^[32] See e.g., Zaru supra note 19 (The NFL, in response to the Flores suit, has announced a new rule requiring all teams to hire at least one minority or female coach as an offensive coach), Belson supra note 14 (NFL has begun to reconsider the Rooney Rule).

Is Big Brother Watching? No, It’s Just Your Employer, But Now With Increased Notice

By: Brandon Barbaruolo

Currently, employers are allowed to monitor employee electronic communications based on the federal Electronic Communications Privacy Act of 1986 (hereinafter “ECPA”).^[1]  The ECPA allows employers to monitor electronic communications of employees on two grounds.^[2] One is employee consent; many employers follow this by providing some sort of acknowledgement before electronically monitoring.^[3]  The other ground is a business exception, which allows employers to monitor employee’s business related communications without employee consent.^[4]  New York is ready to make a change. Starting on May 7^th, 2022, New York will require employers to provide written notice of electronic monitoring to employees.^[5]  New York is not the first state to implement a law of this kind, joining Connecticut and Delaware as states that require employers to provide notice to new hires of the electronic monitoring they will be subject to.^[6]  

The law, which was signed into law on November 8, 2021 by Governor Kathy Hochul,^[7] sets out requirements for the employer, including providing notice of the monitoring to all new hires, obtaining employee acknowledgement of the written notice, and posting of the notice in a conspicuous location.^[8]  The law applies to all private employers, regardless of size, with places of business in New York, but not including the state or any political subdivision.^[9]  There is no requirement to obtain acknowledgement from preexisting employees, only new hires.^[10]  Under this new law, existing employees are not required to acknowledge that their communications could be subject to monitoring.^[11]  Although it is not required, employers might want to provide written notice of the electronic monitoring before the May 7^th implementation, to ensure compliance.^[12]

The new law is applicable to employers who monitor or intercept: telephone conversations, electronic mail (hereinafter “e-mail”), and internet access or usage “of or by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems.”^[13]  There is no specific definition of “intercept” in the law, but employers could look to the definition in the Federal Wiretap Act for assistance.^[14]  The Federal Wiretap Act defines “intercept” as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic or other device.^[15]  The law requiring notice comes at a time when internet usage and digital communication is ever-present.^[16]  The law is not meant to cover processes that attempt to manage the volume of both incoming and outgoing e-mail, telephone voicemails, or internet usage.^[17]  Processes that are not directed towards monitoring the e-mail or telephone usage of a specific person are also not covered by the law.^[18]

The law is subject to enforcement by the New York State Office of the Attorney General.^[19]  The initial violation of the law will result in being subject to civil penalties up $500 for the first offense, $1,000 for a second offense and up to $3,000 for a third offense and for each offense thereafter.^[20]  New York private employers are recommended to begin following the guidelines for current employees before the May 7^th start date to create a more cohesive workplace.^[21]Employers are also recommended to update their policies and procedures to be certain that all new hires receive the required notice and give the proper acknowledgement in correspondence.^[22]   

---

^[1] See New York Employers Required to Provide Notice of Electronic Monitoring, Duane Morris (Jan. 4, 2022), https://www.duanemorris.com/alerts/new_york_employers_required_provide_notice_electronic_monitoring_0122.html.

^[2] Id.

^[3] Id. 

^[4] Id.

^[5] See Simone R.D. Francis, Electronic Monitoring of Employees in New York: New Restrictions and Requirements Will Take Effect in 2022, Ogletree Deakins (Dec. 29, 2021), https://ogletree.com/insights/electronic-monitoring-of-employees-in-new-york-new-restrictions-and-requirements-will-take-effect-in-2022/.

^[6] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, New York’s New Electronic Monitoring Disclosure Law Requires Action Before May, The Employer Report (Feb. 2, 2022) https://www.theemployerreport.com/2022/02/new-yorks-new-electronic-monitoring-disclosure-law-requires-action-before-may/.

^[7] See Francis, supra note 5. 

^[8] See New York Employers Required to Provide Notice of Electronic Monitoring, supra note 1. 

^[9] See Laurie Belony & Hope Sarah Goldstein, New York Enacts Employee Privacy Protections with Electronic Monitoring Law, jdsupra (Feb. 8, 2022), https://www.jdsupra.com/legalnews/new-york-enacts-employee-privacy-3727502/.  

^[10] See Jyotin Hamid, Johanna N. Skrzypczyk & Tricia Bozyk Sherno, Notice of Electronic Monitoring to Employees — New Requirements for Employers in NY State, Debevoise & Plimpton (Feb. 24, 2022) https://www.debevoise.com/insights/publications/2022/02/new-york-state-employers-to-be-required#:~:text=On%20November%208%2C%202021%2C%20Governor,an%20Acknowledgment%20from%20New%20Hires.

^[11] Id. 

^[12] Francis, supra note 5. 

^[13] Id. 

^[14] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, supra note 6. 

^[15] See 18 U.S.C.A § 2510(4) (defining “intercept”). 

^[16] See Joseph Johnson, Global Digital Population as of January 2021, Statista (Sept. 10, 2021) https://www.statista.com/statistics/617136/digital-population-worldwide/.

^[17] See New York Employers Required to Provide Notice of Electronic Monitoring, supra note 1. 

^[18] Id. 

^[19] See David B. Ritter, Douglas M. Oldham & Kenneth J. Yerkes, New York Law Requires Employee Notice Of Electronic Monitoring, The Nat’l L. Rev. (Feb. 7, 2022) https://www.natlawreview.com/article/new-york-law-requires-employee-notice-electronic-monitoring.  

^[20] Id. 

^[21] See Caroline B. Burnett, Kimberly Franco, Autumn Sharp & Kaitlin Thompson, supra note 6. 

^[22] Id. 

Equal Pay for the World Champs?

By Zach Bawduniak

            On the eve of the 2019 Women’s World Cup, members of the United States Women’s National Team (hereinafter, “USWNT”) filed a gender discrimination lawsuit against the United States Soccer Federation (hereinafter, “USSF”).^[1]  The twenty eight players alleged that they received unequal treatment compared to the Men’s National Team with regard to “pay, medical treatment, travel arrangements, and overall workload.”^[2]  These claims reflect a similar lawsuit filed with the EEOC in 2016, where five of the twenty eight players alleged violations of Title VII of the Civil Rights Act of 1964.^[3]  The complaint argued that the Women’s national team was being paid less than the Men’s team because of their sex, and offered the teams’ respective collective bargaining agreements for comparison.^[4]  

            In the Women’s CBA, players receive a bonus of $75,000 each for winning the World Cup.^[5]  In contrast, the Men’s CBA provides a bonus of $9,3750,000 to be split among the twenty-three players on the roster, equating to more than $400,000 for each player.^[6]  Similarly, the Men’s team receives a bonus of $2,500,000 for merely qualifying for the World Cup, while the Women’s team doesn’t get any qualification bonus.^[7]  Now, almost exactly six years to the day of the initial lawsuit, the USWNT and USSF have reached a settlement agreement that should mark the beginning of a new era of equality for American soccer.

            The USWNT reached a settlement of $24 million with the USSF, contingent on ratification of a new collective bargaining agreement for the women’s team.^[8]  The hope of this new CBA is that it will include a deal with the Men’s National Team to receive equal pay bonuses for World Cup performance.^[9]  This settlement falls short of the $66 million that was originally sought by the players, and the contingency on a new CBA has caused differing stances on the true success of the lawsuit.^[10]

            Megan Rapinoe, who has been at the forefront of the lawsuit from its inception, has been arguably the loudest voice praising the settlement.^[11]  Rapinoe called the settlement a “huge win for all women,” and expressed optimism that it would serve as a watershed moment for the equal pay movement in sports.^[12]  However, former USWNT goalkeeper Hope Solo was critical of both the settlement and many people’s quick reaction to call it a success.^[13]  In an Instagram post, she called the settlement “heartbreaking and infuriating,” criticized the contingent nature of the settlement, and expressed concern regarding the retroactive nature of the settlement and its failure to guarantee anything for future players.^[14]  She also outwardly criticized two of her former teammates, Megan Rapinoe and Alex Morgan, saying: 

Throughout the entire process, Megan Rapinoe and Alex Morgan were the two most agreeable with the [USSF] and to this day, continue to [sic] accept terms that are nowhere near what we set out to do. They both know this is not a win. They know it’s an easy out of a fight they were never really in.^[15]

            With the contingency of a new CBA still pending, only time will tell whether the settlement of this headline case will truly result in the equal pay that women’s soccer players in America have long been fighting for.

---

^[1] See David K. Li & Jay Varela, U.S. Women’s Soccer Team File Gender Discrimination Suit Against its Own Federation, NBC News (Mar. 19, 2019), https://www.nbcnews.com/news/us-news/u-s-women-s-soccer-team-files-gender-discrimination-suit-n980981.

^[2] Id.

^[3] See Michael McCann, What’s Next in the USWNT’s Wage Discrimination Case vs. U.S. Soccer?, Sports Illustrated (Mar. 31, 2016), https://www.si.com/soccer/2016/03/31/uswnt-us-soccer-wage-discrimination-equal-pay-eeoc-legal-analysis.

^[4] See Grant Wahl, USWNT Stars Accuse U.S. Soccer of Wage Discrimination in EEOC Filing, Sports Illustrated (Mar. 30, 2016), https://www.si.com/soccer/2016/03/31/uswnt-eeoc-wage-discrimination-equal-pay.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] Jenna Greene, Win, Lose, or Draw? Inside the U.S. Women’s Soccer Settlement, Reuters (Mar. 7, 2022, 4:00 PM),https://www.reuters.com/legal/transactional/win-lose-or-draw-inside-us-womens-soccer-settlement-2022-03-07/.

^[9] See id.

^[10] Compare Josh Marcus, Hope Solo Says US Women’s Soccer $24m Equal Pay Settlement is ‘Infuriating’ Failure: ‘Read the Fine Print’, Yahoo! News (Feb. 25, 2022), https://news.yahoo.com/hope-solo-says-us-women-214351451.html, with Brandon Contes, Megan Rapinoe Celebrates as US Women’s Soccer Team Settles Gender Pay Discrimination Lawsuit: ‘A Huge Win for All Women’, Mediaite (Feb. 22, 2022),  https://www.mediaite.com/sports/the-moment-us-soccer-changed-megan-rapinoe-applauds-gender-discrimination-lawsuit-settlement-on-gma/.

^[11] See Contes, supra note 10.

^[12] Id.

^[13] See Marcus, supra note 10.

^[14] Id.

^[15] Id. (alteration in original).

An Evolving Workplace: New Protections for COVID-19 Caregivers

By Chloé Larsen

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new technical guidance called “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.”^[1]  This comes in response to the drastic shift that COVID-19 has created in employees’ work and personal obligations which often create competing job and caregiving demands.^[2]  Factors such as abrupt changes in work schedules, work locations, and employment status have required millions of Americans with caregiving responsibilities to make quick adjustments.^[3]  This new guidance addresses the interplay between existing federal employment discrimination principles involving employees who are also caregivers to situations specifically related to the COVID-19 pandemic, including caregiving for children, immunocompromised individuals, the elderly, and other vulnerable individuals.^[4]  COVID-19 has presented unique challenges for employees juggling competing job and caregiving demands.^[5]  

Previously, the EEOC has provided guidance, fact sheets, and best practices documents for employers which address caregiver discrimination under several circumstances.^[6]  The latest guidance is formatted as “Frequently Asked Questions” which provide numerous examples of unlawful discrimination and harassment arising from caregiver obligations.^[7]  It also points out that caregiver status is not itself a protected class under federal employment laws; however, employment decisions against employees who are also caregivers may constitute employment discrimination when they are made based on the employee’s protected characteristics, such as sex, race, color, religion, national origin, age, or disability, or based on the employee’s association with an individual with a disability.^[8]  The guidance also states that caregiver discrimination violates federal law when it is based on intersections among several protected characteristics.^[9]

Examples provided by the EEOC on this new guidance include that it would be illegal for an employer to refuse to hire an applicant “who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase.”^[10]  The EEOC also demonstrates that it would be illegal for an employer to discriminate against a woman based on assumptions that as a woman she would be primarily focused on caring for her children while they attend school remotely or need to quarantine, meanwhile men are stereotyped as breadwinners.^[11] 

The guidance also discusses scenarios that would constitute harassment in the workplace.  Among the examples listed are “unlawful hostile work environment by accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19,” and “criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure.”^[12]  

As a result of this guidance, employers may want to consider implementing the EEOC’s best practices suggestions.^[13]  For employers, this can mean training managers about legal obligations regarding treatment of workers with caregiving responsibilities, creating and distributing policies addressing conduct that may constitute unlawful discrimination, harassment, or retaliation against caregivers, or informing employees of work-life policies and being supportive of employees who take advantage of them.^[14]  The guidance only addresses employees’ rights under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”), so employers should also consider whether there are other protections available to employees under state and local laws.^[15]

---

^[1]See U.S. Equal Emp. Opportunity Comm’n, EEOC-NVTA-2022-1, Enforcement Guidance: The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws (2022), https://www.eeoc.gov/laws/guidance/covid-19-pandemic-and-caregiver-discrimination-under-federal-employment.

^[2]See id. 

^[3]See id. 

^[4]See id. 

^[5]Courtney Hindin & Marissa Mastroianni, New EEOC Guidance Highlights Potential COVID-19 Caregiver Discrimination Claims, JD Supra (Apr. 5, 2022), https://www.jdsupra.com/legalnews/new-eeoc-guidance-highlights-potential-2583770/.

^[6]See id. 

^[7]Id. 

^[8]See Press Release, EEOC Releases Information about Employment Discrimination Against Caregivers (Mar. 14, 2022), https://www.eeoc.gov/newsroom/eeoc-releases-information-about-employment-discrimination-against-caregivers.

^[9]See Hindin & Mastroianni, supra note 3. 

^[10]Press Release, supra note 6. 

^[11]Id. 

^[12]Lauri F. Rasnick & Susan Gross Sholinsky, A New Protected Class? Not Quite, but the EEOC is Looking Out for Workers with Caregiving Obligations, The Nat’l Law Review (Mar. 21, 2022), https://www.natlawreview.com/article/new-protected-class-not-quite-eeoc-looking-out-workers-caregiving-obligations.

^[13]See U.S. Equal Emp. Opportunity Comm’n, EEOC-NVTA-2009-1, Employer Best Practices for Workers with Caregiving Responsibilities (2022), https://www.eeoc.gov/laws/guidance/employer-best-practices-workers-caregiving-responsibilities.

^[14] See id. 

^[15] See U.S. Equal Emp. Opportunity Comm’n, supra note 1. 

Marijuana Breathalyzers Coming to a Workplace Near You: But Will They Be Effective?

By: Brandon Blomgren

As of April 2022, eighteen states, two territories, and the District of Columbia have legalized small amounts of cannabis for adult recreational use.^[1]  As states continue to adapt to the everchanging marijuana climate in the United States, it is important to consider the potential impact the legalization of marijuana can have on the workplace.^[2]  One area of focus centers around impairment, specifically whether any scientifically proven technology exists in the marketplace that can detect if an employee is “high” on the job.^[3]  Law enforcement officials assess impairment on a daily basis during traffic stops, and when an officer suspects the driver is under the influence of alcohol the driver will be asked to take a breathalyzer test.^[4]  But what if the police suspect the driver has consumed cannabis?  Some legalization advocates and lawmakers want cannabis to be regulated like alcohol and a handful of states have established “per se” limits making it inherently illegal to drive with specific concentrations of the psychoactive cannabis compound delta-9-tetrahydrocannabinol (THC) in one’s system.^[5]  The problem is if police believe someone is driving high, they’ll have a difficult time proving it because marijuana tests typically rely on urine samples which may only indicate that someone has used marijuana over the past days or even weeks, not whether they are actively impaired.^[6]

With many states now legalizing marijuana across the country it is reasonable to believe that most of the adults residing in one of these “cannabis friendly” states will also be employed.^[7]  As noted above, because a positive urine,^[8]blood,^[9] hair,^[10] or saliva^[11] test result for THC only indicates the likelihood of prior use without revealing when the cannabis was actually consumed, 

the “impairment issue” will also be problematic for employers.^[12]  One solution law enforcement and employers are looking to is potential marijuana breathalyzers tests.^[13]  Several startups are actually in the process of building these “cannabis breathalyzers” that will instead deliver results about recent marijuana use, on the spot.^[14]  The devices will provide employers with reassurance that their workers are not high on the job, and employees who legally smoked marijuana the day before the test will not, presumably, be penalized.^[15]  According to Noah Debrincat, the founder and CEO of SannTek Labs (one startup working on a marijuana breathalyzer) “[a]ny level of marijuana on the breath would be evidence that someone has used the drug within a relatively recent time period, but that’s not easy to do because the concentration of THC is extremely low in the breath, even in those who are clearly intoxicated.”^[16]  

Companies like SannTek claim that the respective technology will be capable of detecting marijuana use immediately after consumption, which essentially provides evidence of potential impairment.^[17]  However, even if these methods do work and it is possible to detect recent marijuana use, how do you prove that the level at which you’ve detected it causes impairment or not?  For alcohol, the law has declared that .08% blood alcohol concentration is the level in which you’re intoxicated, but because we don’t have that with marijuana, nobody knows at what specific point someone is actually impaired.^[18]  Until the necessary research is conducted to establish a legal limit these devices should only indicate consumption and not impairment.^[19]

---

^[1] See Michael Hartman, Cannabis Overview, NCSL (July 6, 2021), https://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.

^[2] See Thomas Moore, Marijuana: Its Effect on Workplace Safety, OnePetro (Feb. 21, 2021), https://onepetro.org/PS/article-abstract/66/02/34/459910/Marijuana-Its-Effect-on-Workplace-Safety?redirectedFrom=fulltext.

^[3] See Amanda C. Lewis, Driving While Baked? Inside the High-Tech Quest to Find Out, Wired (Feb. 15, 2022, 6:00 AM), https://www.wired.com/story/weed-dui-test/; see also Chris Roberts, Study: Sure Looks Like ‘Marijuana Breathalyzers’ Don’t Work—And May Never Work, Forbes (Dec. 31, 2021 4:29 PM), https://www.forbes.com/sites/chrisroberts/2021/12/31/study-sure-looks-like-marijuana-breathalyzers-dont-work-and-may-never-work/?sh=31ed70fa5c3b (“[T]o date, no successful “marijuana breathalyzer” device has been introduced to the market.”).

^[4] See Michelle Behan, Are Sobriety Tests Required When a Driver Is Pulled Over for Dui?, Legal Res., (last visited Apr. 1, 2022), https://www.hg.org/legal-articles/are-sobriety-tests-required-when-a-driver-is-pulled-over-for-dui-60928.

^[5] Alicia Wallace, Testing Drivers for Cannabis is Hard. Here’s Why, CNN Business (Jan. 02, 2020, 4:50 PM), https://www.cnn.com/2020/01/02/business/cannabis-breathalyzers-are-coming-to-market/index.html.

^[6] See Sarah Kessler, The Best Use of a Pot Breathalyzer Isn’t for Driving, It’s for Jobs, OneZero (Oct. 18, 2019), https://medium.com/one-zero/the-best-use-of-a-pot-breathalyzer-isnt-for-driving-it-s-for-jobs-37d94a6effe5.

^[7] See Jeremy Burke et al., Marijuana Legalization is Sweeping the US. See Every State Where Cannabis Is Legal, Business Insider (Feb. 23, 2022, 3:30 PM), https://www.businessinsider.com/legal-marijuana-states-2018-1.

^[8] See Karen Moeller, Urine Drug Screening: Practical Guide for Clinicians, Mayo Clinic (Jan. 2008), https://www.mayoclinicproceedings.org/article/S0025-6196(11)61120-8/fulltext (noting how cannabis is detectable for up to one week after only a single use, and 10-15 days after daily use). 

^[9] See Scott E Hadland & Sharon Levy, Objective Testing – Urine and Other Drugs Tests, at 2 (July 25, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4920965/ (noting that blood tests may offer the earliest and shortest window for detection of substances); but see Id. at 20 (illustrating how blood tests can be expensive, invasive, requires training, and may not be an option for all individuals due to poor venous access).

^[10] See Hassan A. Kanu, Hair-Follicle Drug Testing: Lessons for Employers, Bloomberg L. (Oct. 19, 2016, 4:51 PM), https://news.bloomberglaw.com/daily-labor-report/hair-follicle-drug-testing-lessons-for-employers; See generally Hair Tests: Unreliable and Discriminatory, ACLU (June 27, 1999), https://www.aclu.org/press-releases/hair-tests-unreliable-and-discriminatory (suggesting that hair follicle drug tests are unreliable and discriminatory because people with dark hair, and thus higher concentrations of melanin, are far more likely to test positive).

^[11] See Hadland & Levy, supra note 8, at 20 (noting that saliva tests provide a short window of detection).

^[12] See Stacy Hickox, It’s Time to Rein in Employer Drug Testing, 11 Harv. L. & Pol’y Rev. 419, 424 (2017).

^[13] See Lewis, supra note 3.

^[14] See Kessler, supra note 5.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Id. 

^[19] Chris Taylor, Is This Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer (stating that “[u]nless there’s a scientific breakthrough to find a biometric that indicates intoxication that’s currently unknown, marijuana breathalyzers may never work.”).

Reduction for Calvin Ridley’s Suspension? Don’t Bet on It!

By: Kevin Lenahan

Calvin Ridley, when healthy, is the premier receiving threat for the Atlanta Falcons of the NFL. He was not healthy this past season, however, as he was forced to step away from the game in order to address mental health issues.^[1] While away from the game, Ridley did what any sports fan with a phone and a few dollars to spare does when they watch sports nowadays, he placed a few bets on NFL games.^[2] While the wagers that Ridley placed only add up to $1,500, they would end up being much more costly than he imagined.^[3]

On March 7, 2022, the NFL announced that Calvin Ridley is suspended “for at least the 2022 season after gambling on games.”^[4] In a letter to the Falcons wide receiver, NFL Commissioner Roger Goodell noted that “[Ridley’s] actions put the integrity of the game at risk, threatened to damage public confidence in professional football, and potentially undermined the reputations of your fellow players throughout the NFL.”^[5] In addition to missing a year of play as he enters the prime of his career, Calvin Ridley will also be forced to forfeit $11.116 million in pay as a suspended player next year.^[6]

If Ridley’s suspension comes off as a bit harsh (1 year for placing 3 bets totaling $1,500), that’s because it is. For a comparison, Amani Bledsoe, a free agent edge rusher, was recently handed only a 6-game suspension for testing positive for performance-enhancing drugs.^[7] Also, Antonio Brown was given a mere 3-game suspension for using a fake COVID-19 vaccination card to lie about being properly vaccinated.^[8] In fact, the last time the NFL handed down a season-long suspension was in 2019, when Arizona Cardinals cornerback Josh Shaw was banned from football for 16 months for placing multiple bets on NFL games while he was out with an injury.^[9]

The NFL’s current stance on its players gambling may seem just a bit hypocritical, especially when you consider the revenue that the league is collecting from their association with gambling companies such as FanDuel, DraftKings, Caesars, etc. According to The New York Times, “partnerships with sports gambling companies and casinos represented a significant chunk of the N.F.L.’s record $1.8 billion in sponsorship revenue.”^[10] This data shouldn’t come as a surprise though, as it is nearly impossible to watch an NFL game these days without seeing an advertisement for a gambling company. 

It is, however, ironic that the longest player suspension this season came from doing the exact same thing that the NFL is making hundreds of millions of dollars promoting to fans across the nation to engage in.^[11] The league has no shame feeding its audience an endless supply of gambling advertisements, but will quickly hand out a season-long suspension to Calvin Ridley, for participating in said activity three times.^[12] Because of the suspension, Ridley cannot apply for reinstatement into the NFL until February 15, 2023.^[13]

As absurd as the current suspension is, it does not appear that Ridley will be able to have it lifted or reduced in any way. The NFL’s current collective bargaining agreement, which went into effect on March 15, 2020 and runs until 2030, lists player’s gambling on NFL games as an offense worthy of either fines or suspensions, or both.^[14] In fact, the amount of money for fines, the length of suspensions, and the overall seriousness of the punishment is left to the discretion of the Commissioner.^[15] There’s no doubt that Roger Goodell was serious when he levied the season-long suspension on Ridley in order to “uphold[] the integrity of the game” and send a message to the rest of the league, but he must see the hypocrisy of the punishment.^[16] Ridley was wrong, of course, but to defend a year-long suspension amidst a tsunami of revenue from gambling partnerships is ironic at best.

---

^[1] Ben Morse, Atlanta Falcons Star Calvin Ridley to ‘Step Away from Football’ to Focus on Mental Health, CNN (Nov. 1, 2021, 8:08 AM), https://www.cnn.com/2021/11/01/sport/calvin-ridley-mental-wellbeing-atlanta-falcons-spt-intl/index.html.

^[2] Michael Rothstein, NFL Suspends Atlanta Falcons WR Calvin Ridley for At Least 2022 Season for Betting on Games, ESPN (Mar. 7, 2022), https://www.espn.com/nfl/story/_/id/33446869/nfl-suspends-atlanta-falcons-wr-calvin-ridley-least-2022-season-betting-games.

^[3] See id.

^[4] Id.

^[5] Kevin Patra, Falcons WR Calvin Ridley Suspended Indefinitely Though at Least 2022 Season for Betting on NFL Games, NFL (Mar. 7, 2022, 3:41 PM), https://www.nfl.com/news/falcons-wr-calvin-ridley-suspended-indefinitely-through-2022-season-for-betting-.

^[6] Id.

^[7] Cody Benjamin, Former Bengals, Titans Pass Rusher Amani Bledsoe Suspended Six Games for Violating PED Policy, CBS Sports (Feb. 22, 2022, 6:44 PM), https://www.cbssports.com/nfl/news/former-bengals-titans-pass-rusher-amani-bledsoe-suspended-six-games-for-violating-ped-policy/.

^[8] Tampa Bay Buccaneers WR Antonio Brown Suspended 3 Games for COVID-19 Violation, ESPN (Dec. 2, 2021), https://www.espn.com/nfl/story/_/id/32772245/tampa-bay-buccaneers-wr-antonio-brown-suspended-3-games-covid-19-violation.

^[9] Phil McCausland, NFL Player Josh Shaw Suspended Through 2020 for Betting on Games, NBC News (Nov. 29, 2019, 4:29 PM), https://www.nbcnews.com/news/sports/nfl-player-josh-shaw-suspended-through-2020-betting-games-n1093496.

^[10] David W. Chen, The N.F.L.’s About-Face on Sports Gambling, The N.Y. Times (Feb. 10, 2022), https://www.nytimes.com/2022/02/10/sports/nfl-bets-gambling.html#:~:text=This%20past%20year%2C%20partnerships%20with,a%20piece%20of%20the%20action..

^[11] NFL Fines and Suspensions, Spotrac, https://www.spotrac.com/nfl/fines-suspensions/2021/suspensions/ (last visited Apr. 2, 2022).

^[12] Conor Orr, Calvin Ridley’s Suspension is More Proof the NFL Always Punishes Players More than Owners, Sports Illustrated (Mar. 7, 2022), https://www.si.com/nfl/2022/03/07/calvin-ridley-gambling-suspension-business-usual.

^[13] See Rothstein, supra note 2.

^[14] NFLPA, Collective Bargaining Agreement 357 (2020), https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf.

^[15] See id.

^[16] Patra, supra note 5. 

The End of Forced Arbitration for Workplace Sexual Assault and Harassment

By Ashley Miskovsky

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”), which adds Chapter 4 as an amendment to the existing Federal Arbitration Act (“FAA”).^[1]  The new federal law will allow individuals with claims of sexual harassment or assault to elect out of pre-dispute arbitration agreements^[2]  or joint-action waivers^[3]  within their employment contracts.^[4]  Though the law took immediate effect, it only applies to conduct occurring on or after March 3, 2022.^[5]  Now, though victims may still choose arbitration to preserve their privacy, they will also maintain the right to bring their claims in a court of law.^[6]  Such actions may arise from Title VII, or may invoke state or tribal laws prohibiting sexual harassment and/or assault.^[7]

            This widely popular Act received bipartisan support,^[8]  following pressure from the #MeToo movement,^[9] which grabbed the world’s attention in 2017.^[10]  The #MeToo movement  “launched an important discussion regarding sexual harassment,” and has had an “’undeniable’ impact on the number of reported … sexual harassment claims.”^[11]  The movement has not only inspired this new federal legislation,^[12]  and thirty-two similarly-motivated state bills,^[13]but has also prompted several companies, such as Uber and Google, to voluntarily waive their mandatory arbitration clauses for sexual harassment claims.^[14]  Though these changes were voluntary, they followed increased “employee dissatisfaction and social pressure.”^[15]  Specifically, Uber incorporated such changes after being sued by over a dozen women for sexual harassment and sexual assault in May of 2018, and Google’s changes “follow[ed] a 20,000-employee walkout protesting the company’s handling of previous sexual misconduct allegations.”^[16]

Employers who did not follow suit may now need to reevaluate and amend their employment contracts following the enactment of the federal Act.^[17]  The modification of enforcement provisions may be necessary to ensure that their arbitration provisions will not be voided in their entirety by individuals bringing sexual harassment or assault claims.^[18]Such amendments may include the addition of venue provisions or the modification of enforcement provisions.^[19]  However, employers must be cognizant of local laws with respect to employment contract modifications, and “must ensure they are providing adequate consideration to form a valid contract.”^[20]

Though this Act greatly enhances protections for victims of sexual assault and harassment, the Act nevertheless leaves many questions left unanswered.^[21]  One question that remains, because the Act doesn’t expressly include or exclude retaliation claims that arise “from the same set of facts as the sexual harassment claim,” is whether such claims may still be subject to forced arbitration.^[22]  Also left unanswered is whether an employer may “obtain a valid jury trial waiver outside of an arbitration agreement governed by the FAA.”^[23]  These questions may be litigated in court in the future, and ultimately may be answered differently across jurisdictions.^[24]

Though some effects of this new legislation are still unknown and there are still questions left to be answered, this Act undoubtedly will help to fix “a broken system that protects predators and corporations and will help to end the days of silencing survivors,” who have long hoped for this access to justice.^[25]

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^[1] Tyler Z. Bernstein & Gabriella R. Albright, UPDATE: President Biden Signs Bipartisan Bill to End Mandatory Arbitration of Sexual Harassment and Assault Claims in the Workplace, Nat’l L. Rev. (Mar. 4, 2022), https://www.natlawreview.com/article/update-president-biden-signs-bipartisan-bill-to-end-mandatory-arbitration-sexual.  

^[2] Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90 (2021). A pre-dispute arbitration agreement is “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” Id.

^[3]  Id. A pre-dispute joint action waiver is “an agreement… that would prohibit, or waiver the right of, one of the parties to the agreement to participate in a joint, class or collective action … concerning a dispute that has not yet arisen at the time of making the agreement.”  Id.

^[4] Bernstein & Albright, supra note 1.  

^[5] Id.

^[6] See Peter Blumberg, What Banning Forced Arbitration for Harassment Means: Quicktake, Bloomberg Law (Feb. 16, 2022), https://news.bloomberglaw.com/bloomberg-law-analysis/what-banning-forced-arbitration-for-harassment-means-quicktake?context=article-related.

^[7] See Emily G. Massey, Dust Off Your Template Employment Agreements (Feb. 23, 2022), Ward & Smith, P.A., https://www.wardandsmith.com/articles/Mandatory-Arbitration-and-Class-Action-Waivers-for-Sexual-Harassment-or-Sexual-Assault-Prohibited-In-Any-Pre-Dispute-Agreement.

^[8] See Bernstein & Albright, supra note 1.

^[9] See Blumberg, supra note 5. 

^[10] Kathleen McCullough, Mandatory Arbitration and Sexual Harassment Claims: #MeToo- and Time’s Up-Inspired Action against the Federal Arbitration Act, 87 Fordham L. Rev. 2653, 2667 (2019).

^[11] Id. at 2666-68.

^[12] See id. at 2675-77.

^[13] Id. at 2677.

^[14] Id. at 2683-85.

^[15] Id. at 2683-84.

^[16] Id. at 2684.

^[17] See Massey, supra note 6.

^[18] Id.

^[19] Id.  

^[20] Id.

^[21] See Lucy Bertino et al., Changes to Employment Arbitration Agreements Under the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment”: FAQs, JD Supra (Feb. 14, 2022), https://www.jdsupra.com/legalnews/changes-to-employment-arbitration-5827380/.

^[22] Id.

^[23] Id.; see also Massey, supra note 6.

^[24] See Bertino et al., supra note 17.

^[25] Ali Zaslav & Jessica Dean, Senate passes sweeping overhaul of workplace sexual misconduct law, Cnn (Feb. 10, 2022), https://www.cnn.com/2022/02/10/politics/senate-vote-sexual-misconduct-law/index.html (quoting Senator Kirsten Gillibrand).

The Case for a Gender- and Age-Neutral Army Combat Fitness Test

By Ryan McComb

In 2013, the United States Army began an overhaul of their physical fitness program.^[1]  For over forty years, the Army has applied the Army Physical Fitness Test (hereinafter “APFT”) as the primary assessment of its Soldiers’ physical readiness for military service.^[2]  This test consists of three elements: timed pushup and sit-up events each lasting two minutes, followed by a two-mile run.^[3]  The APFT has undergone criticism due to the differing physical standards it places on Soldiers.^[4]  Generally speaking, the APFT sets higher repetition requirements for each of the calisthenic events and requires faster times on the running event for younger, male Soldiers as compared to their female and older, male colleagues.^[5]  Partially in response to this and other criticisms of the APFT, the Army began development of a new test.^[6]  

The Army Combat Fitness Test (hereinafter “ACFT”) consists of six events: a three-repetition maximum deadlift, the standing power throw, the hand-release push-up arm extension, the sprint-drag-carry, a timed plank, and a two-mile run.^[7]  Originally, the ACFT was designed in part to create performance standards which would be gender and age neutral.^[8]  For the last few years, officially and unofficially, the ACFT has been tested by Soldiers throughout the Army and has indicated that female Soldiers in particular, but also older Soldiers, have failed at noticeably higher rates than their younger, male counterparts.^[9]  After reviewing the findings of a RAND independent study, performance data, and Soldier feedback, the Army made numerous revisions to the ACFT.^[10]  One such revision eliminated the age- and gender-neutral scoring standards and replaced it with what the Army calls an “age and gender performance-normed scoring scale.”^[11]  This scale is similar to that used for the APFT, in that it differentiate based on the age and gender of the Soldier being assessed.^[12]  Throughout development of the ACFT, concerns had been raised by Congress regarding the adverse impact that the test would have on female and older Soldiers, on those Soldiers stationed in less hospitable climates, and the impact that it would have on “recruitment and retention in critical support military occupation specialties.”^[13]  

Government representatives like Senator Kirsten Gillibrand of New York and Richard Blumenthal of Connecticut, have criticized the test for its outsized expense as compared to the APFT and its inequal treatment of male and female Soldiers.^[14]  Specifically, they noted that during the Army’s initial ACFT testing studies, female and older Soldiers were vastly underrepresented.^[15]  This they said, raised “considerable concerns regarding the negative impact it may already be having on so many careers.”^[16]

Now, an in-depth discussion of the adequacy of the ACFT as currently written would require far more space than a short blog post. Therefore, this author will not defend the adequacy of the test itself, but rather the principle of gender and age neutrality in the scoring process.  Initially, this neutrality was achieved by making the ACFT scoring standards “based on the physical demands of Soldier Military Occupational Specialties (MOS).”^[17]  Generally speaking, qualification for higher intensity jobs, such as the infantry, would require a higher score on the ACFT than for support roles, such as a paralegal specialist.^[18]  This could also be applied to aging Soldiers who as they are promoted, begin to take less physically demanding roles in their day-to-day jobs.  

It’s true that any age- and gender-neutral test, whether the ACFT or something else, could still create some Title VII implications, both in the context of disparate impact and disparate treatment claims.  However, in the case of disparate treatment claims, the use of such a standard may be considered acceptable under the Bona Fide Occupational Qualification (hereinafter “BFOQ”) exception.  The BFOQ validates certain occupational requirements that, although tend to be discriminatory, are “reasonably necessary to the normal operation of the particular business.”^[19]  While a BFOQ analysis would undoubtedly depend on the specifics of the physical fitness test in question, jobs which are entirely centered around the combat readiness of its Soldiers would seem to be a narrow enough exception to Title VII.^[20]

A job placement system which makes Soldiers eligible for combat roles based primarily on their ability to meet certain physical requirements then, should be valid under the BFOQ exception.  As Senator’s Gillibrand and Blumenthal have expressed, any such test would need to ensure that female and older Soldiers are adequately represented throughout the development process.^[21]  Whether this system is best implemented through use of the ACFT, or some other test, is beyond the scope of this article.  However, when it comes to the important role that Soldiers play in combat situations, the use of a gender and age neutral qualification for combat service is necessary for the continuing success of our Army.  

---

^[1] Steve Beynon, Can the Army’s New Fitness Test Survive Critics and Become Official in April, Military.com (Jan. 5, 2022), https://www.military.com/daily-news/2022/01/05/can-armys-new-fitness-test-survive-critics-and-become-official-april.html.

^[2] Rob Shaul, History of the APFT, Mountain Tactical Inst., https://mtntactical.com/knowledge/history-of-the-apft/ (stating that the APFT standards began being enforced and testing made mandatory in 1980).

^[3] Id.

^[4] Kristen M. Griest, With Equal Opportunity Comes Equal Responsibility: Lowering Fitness Standards to Accommodate Women will Hurt the Army – and Women, Modern War Inst. at West Point (Feb. 25, 2021), https://mwi.usma.edu/with-equal-opportunity-comes-equal-responsibility-lowering-fitness-standards-to-accommodate-women-will-hurt-the-army-and-women/ (arguing that “reverting to gender-based scoring could drastically reduce the performance and effectiveness of combat army units” and that “[l]ower female standards. . . reinforce the belief that women cannot perform the same job as men. . . making it difficult for women to earn the trust and confidence of their teammates.”).

^[5] APFT Standards, U.S. Army Basic, https://usarmybasic.com/army-physical-fitness/apft-standards (providing links to the varying performance standard tables).

^[6] Benyon, supra note 1. 

^[7] Army Combat Fitness Test, U.S. Army, https://www.army.mil/acft/.  Originally, the test included a hanging leg tuck as the measurement of overall core strength in Soldiers.  See Army Combat Fitness Test, supra note 7.  The leg tuck was ultimately replaced by the plank due to its disproportionate failure rate of 41% by female Soldiers.  Steve Beynon, More Female Soldiers are Passing the ACFT, but Their Scores Still Trail Men’s, Military.com (May 17, 2021), https://www.military.com/daily-news/2021/05/17/more-female-soldiers-are-passing-acft-their-scores-still-trail-mens.html.

^[8] See Army Combat Fitness Test, Frequently Asked Questions, U.S. Army, https://www.army.mil/acft/#faq-section-1.

^[9] Chaitra M. Hardison et. al., Independent Review of the Army Combat Fitness Test, Rand Corp. (2022) https://www.rand.org/pubs/research_reports/RRA1825-1.html.

^[10] Id.

^[11] Id.

^[12] See APFT Standards, supra note 5.

^[13] David Brown, ACFT FUBAR: Bad Data Driving a Bigger Wedge Between Active Duty and Reserves, ClearanceJobs (May 12, 2021), https://news.clearancejobs.com/2021/05/12/acft-fubar-bad-data-driving-a-bigger-wedge-between-active-duty-and-reserves/.

^[14] Kirsten Gillibrand, Gillibrand, Blumenthal Press Armed Service Committees To Pause Implementation Of New Army Combat Fitness Test (ACFT); New Test Relies On Flawed Data And Could Undermine Military Readiness, Kirsten Gillibrand U.S. Senator for N.Y. (Oct. 21, 2020) https://www.gillibrand.senate.gov/news/press/release/gillibrand-blumenthal-press-armed-service-committees-to-pause-implementation-of-new-army-combat-fitness-test-acft-new-test-relies-on-flawed-data-and-could-undermine-military-readiness.

^[15] Id.

^[16] Id.

^[17] U.S. Army TRADOC, Army Combat Fitness Test Standards, U.S. Army Stand-To! (Sept. 27, 2019) https://www.army.mil/standto/archive/2019/09/27/.

^[18] See Id.

^[19] Int’l Union, United Auto. v. Johnson Controls, 499 U.S. 187, 201 (1991).

^[20] See id.

^[21] Gillibrand, supra note 14.