Should Employers Use the Same Arguments as Sports Teams Using Native American Imagery?

The sporting world has been abuzz recently with news that Washington’s NFL team and Cleveland’s Major League Baseball team are considering changing their team names and logos to move away from their overt Native American imagery.

This has been a matter of public discussion for many years as representative groups have petitioned the teams not to use their racial and cultural identities as mascots.  The teams (and many of their supporters) have countered that they are highlighting the virtues and achievements of these groups and that many group members favor their use.  In particular, the Washington football team has adamantly resisted any change, with the owner stating on record in 2013 that he would never change the team name.  The Cleveland baseball club has been a bit more conciliatory, having recently retired their 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 that ordinary employers might face if employees claim a hostile work environment arising from the use of racial or ethnic stereotypes in the work place, or from tolerating such use by other employees.   Since the complaints are similar, it is instructive to review the defenses that the team owners have offered in the past to defend their use of cultural imagery and whether they might be useful in defending a hostile work environment claim.

“I’m Trying to Honor Those Groups”

As noted above, owners of the these teams (and the other teams with similar names) all say that their intent is to honor the achievements and positive qualities of the Native American people.  Fair enough – we will take them at their word.  However, in a claim of hostile work environment, 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 is such that it created a hostile environment for the complaining employee.

(Editor’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 today, it likely would be viewed quite negatively no matter how innocent or jovial that supervisor might seem.)

“These Were Terms of Respect When I Named the Team”

Owners of sports teams that use Native American imagery typically explain that when the team was formed and/or the name was adopted, the term (e.g. warrior, brave) was considered to be a signal of respect.  Whether or not that is true, that 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 90’s.”  A number of other words that were previously used acceptably to describe someone (e.g. “retarded”) are also now generally considered offensive.

Indeed, as we reported last month in Minnesota Courts Still Require Severe or Pervasive Conduct in Hostile Work Environment Claims, the Minnesota Supreme Court ruled that while we will continue to evaluate harassment claims in  terms of whether the conduct is severe or pervasive, the threshold for meeting those terms 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 like “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.

(Editor’s Second Note – even the term “owner” as has been used in this article has been subject to challenge by some African American athletes on the grounds that athletes are people and nobody owns people. Food for thought in a future piece).

“I’ve Asked Around and Nobody Seems to Mind”

The owners of the teams in question often point to the results of surveys they have taken of Native American people to show that the majority of survey respondents favor the name.  They also point to spokespeople of various tribes who seem to approve the use of the teams’ imagery.

However, in the world of employment law, an employee’s right to be free from harassment is not a matter of popular vote.  Regardless of how often a supervisor uses a discriminatory phrase without complaint, or how many employees might express that they do not 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.

Bottom Line

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 an athlete fame and fortune would get them five years in prison anywhere else.

For this reason, it is strongly recommended that employers not borrow from sports owners’ playbooks when defending the use of racially or ethnically charged language or behaviors.