Q: If Novak Djokovic was your employee could you terminate him after he stated men should be paid more money than women and made comments about women’s hormones?
A: Maybe. But, it is an interesting question because it pits two employment law principles against one another – equal employment v. concerted activity. As you may be aware, the men’s world number one tennis player indicated that men deserved more prize money at tournaments because they draw more fans. He then went on to say:
As I said, I have tremendous respect for what women in global sport are doing and achieving. It’s knowing what they have to go through with their bodies, and their bodies are much different than men’s bodies. They have to go through a lot of different things that we don’t have to go through. You know, the hormones and different stuff, we don’t need to go into details. Ladies know what I am talking about.
As most people are aware, there is significant federal and state law that protects against gender discrimination and harassment. In compliance with these laws, most employers have policies prohibiting statements that indicate one gender is superior to the other or make reference to one’s gender’s anatomy. As such, Djokovic’s statements, particularly the reference to bodies and hormones, would likely fly in the face of these policies and laws.
From an employment law perspective, a question arises as to whether Djokovic would be protected to complain that he (and the rest of the men) should receive more money because (in his opinion) they generate more revenue through fan demand. Statements regarding “working conditions” are protected under California law and “concerted activity” is protected under Federal law. “Working conditions” and “concerted activity” both have broad definitions that would certainly protect an employee’s ability to have a platform to discuss why he thinks he is entitled to more money. It is unclear whether the employer could actually make the changes to the pay structure without violating the law, particularly in light of California’s Fair Pay Act. Accordingly, this controversy is a good reminder to review our previous blog on California’s new Fair Pay Act that went into effect in 2016.
Of course, all of this is somewhat theoretical because Djokovic is not an employee of the ATP (Associated Tennis Professionals). That said, his comments certainly did not help his own personal brand. What is weird, however, is that a sport’s star said something controversial, and that he later apologized for it.
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.