NFL cheerleading lawsuit based on disparate impact claim, labor attorney says

By Angela Underwood | Apr 12, 2018

Though NFL rules may be strange, they could stick in a court of law, according to attorney Barbara Hoey.

Hoey, chair of Kelley Drye’s Labor and Employment practice group, recently discussed with the Northern California Record the Kelsey K. v. NFL case, a multimillion-dollar antitrust lawsuit filed by a former San Francisco 49ers cheerleader who was fired after she posted a picture on Instagram that the team viewed as offensive.

Hoey pointed out it’s difficult to argue that cheerleaders, who are not "stars" and do not sell tickets, could be paid as much as football players. Putting aside the issue of compensation, the complaint goes beyond wage discrimination, she said.

“There are allegations that the cheerleaders are subjected to onerous rules that regulate their on- and off-duty conduct, much more so than players -- like what they wear off duty (no sweatpants in public), what restaurants they can go to and who they can interact with on social media,” Hoey said.


Attorney Barbara Hoey, chair of Kelley Drye’s Labor and Employment practice group.  

“Some of the rules, frankly, do seem a bit strange, but one assumes that the team had a good reason for creating them,” Hoey added.

In a 67-page appellate answering brief to the U.S. Court of Appeals for the 9th Circuit, NFL attorneys argued Judge William Alsup was correct in his judgment, saying based on the Bell Atlantic Corp. v. Twombly standard, Kelsey K.’s argument was futile.

The theory underpinning all of this is disparate impact, according to the attorney.

“Under Title VII, an employer cannot discriminate or treat similarly situated employees differently because of gender,” Hoey said. “The claim is that the team may not have intended to discriminate, but the effect of these rules fell disproportionately on women -- which is a disparate impact claim.”

The attorney points out that the team has stated clearly that these rules are not unlawful or discriminatory.

“I am sure that their first defense is that cheerleaders and players are not similarly situated, and are in fact in very different roles within the organization,” Hoey said. “I am also certain that they will defend the grooming and other rules as necessary to maintain certain decorum, and levels of service.”

She added there have been cases where grooming and appearance rules for waitresses and similar types of employees have been upheld as reasonable and lawful.

Hoey said it remains to be seen how the Equal Employment Opportunity Commission will view all of this once a full investigation is done.

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