This is a Super BMJ Employment Answer – Three Super Bowl inspired questions for your halftime discussions.
Q. After the Super Bowl, can the Broncos fire Peyton Manning for being too old? Isn’t age discrimination illegal?
A. Generally, an individual is not in a protected class for age until they are over 40 years old. Peyton Manning turns 40 on March 24th. At that point, the Broncos (according to the Age Discrimination in Employment Act of 1967) could not take into account Peyton’s age when making an employment decision. It would seem the Broncos could not choose a younger quarterback just because he is younger – it would have to be based on other performance factors. (29 U.S.C. §§ 621-634.) Luckily for the Broncos, Peyton has not reached his golden years just yet, and short arming throws and the inability to throw spirals is not a protected class. As such, they could probably move on… It would be interesting, however, if he has a great Super Bowl, and he outperforms his back up in the Fall. Then what? Mr. Elway/Broncos, my number is on the blog site.
Q. Is the expansion of the Rooney rule (a requirement to interview a minority candidate before hiring coaches and executives) to include a requirement to interview women, legal? Should it be extended for LBGT individuals? What about players and certain positions on field?
A. It is illegal for an employer to discriminate against a job applicant for being a member of protected class. (42 U.S.C. § 2000 et seq.) It is also illegal to base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The interesting component of the Rooney rule (and its proposed expansion) is that it does not purport to exclude any protected class, but to simply ensure that certain protected classes are always part of the interview pool. As such, it is likely lawful. That said, when race or other protected classes are involved it is always tricky. One could argue that, by specifically including one particular protected class (aka women), this could potentially be to the patent exclusion of other protected classes (aka discrimination). An interesting case could be made if an organization decided to only interview three people and somebody was excluded from the interview process because they didn’t belong to the protected class that the NFL is trying to promote through this new rule.
On the field, physical size, skill and strength generally determine who gets what position. This would seem to make it difficult to always include older Americans or women for many positions on the football field. However, it could be argued, that certain stereotypes have persisted in the NFL (even though some of them have been regularly broken as of late) such as a Caucasian quarterbacks/kickers or African American wide receivers. So far, there are no lawsuits that I am aware of, but if somebody felt they weren’t given a chance because of race or gender despite having the requisite skill set for a certain position, a lawsuit is certainly plausible.
Q. Cam Newton inferred that some people don’t like him because of his race, what is the NFL’s requirement to protect its players from third party harassment such as from fans or sports talk radio?
A. Employers are generally responsible for ensuring a harassment-free workplace for employees, regardless if the alleged harasser is a co-worker, manager, independent contractor, customer… or fan. In this case, Newton has remarked that being a black quarterback “may scare a lot of people.” If those people are fans, and they shout epithets, what could the NFL do? Or, if radio show hosts pick on him for being African American. For starters, they are required to take reasonable remedial measures. It would be easy to eject the offending fans from the stadium and to issue social media responses asserting that they do not tolerate such behavior. They could also pull endorsements of radio shows/stations.
This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.