DC Circuit Court Finds Possible Retaliation in Football Team Name Lawsuit Despite Lack of Discrimination

As football season approaches, we address a controversial issue in a somewhat different context.

Prior to joining the Department of Energy as an Attorney Advisor, Jody TallBear was an activist in the Native American community and made it known she was involved in such activities.  However, working in Washington, DC, one is constantly exposed to what many consider to be the racist and outdated team name and logo of the local professional football team, the Washington Redskins.  It was TallBear’s opposition to the use of the team name and paraphernalia in the workplace that brought forth her lawsuit in TallBear v. Perry, which recently survived a motion to dismiss from the department.

In the decision, which can be found here, it states that Tallbear was hired in 2011 in order to advance relationships and engagement with Native American communities.  According to her complaint, Tallbear began telling her supervisors in 2012 that she found the pervasiveness of the team logo throughout the workplace and the frequent use of the team name to be offensive.  According to Tallbear, these complaints went unheeded by management.

The crux of the discrimination claim is TallBear’s allegation that she has been ‘repeatedly exposed’ to the Washington Redskins name and logo, from ‘posters placed in common areas by DOE employees’ to ‘clothing worn by employees’ and ‘causal and widespread use’ of the term in her presence.

This claim merits consideration.  Is a term any less offensive just because it is used to identify a popular local sports organization?  Should employees be required to tolerate the use of a term that many consider to be offensive just because it belongs to an historic football franchise that has resisted changing its name?

The DOE’s General Counsel certainly thought so, as they found no legal reason to ban the use of the term within the organization in 2013 and 2014, and told TallBear as much, and soon after, the department began barring her from speaking engagements she would normally have been involved in.

The Court found that “Title VII does not require the country’s employers to stand aggressively on one side of that public debate by banning employees from referring to their local professional football team by name in the workplace.”  The Court held:

TallBear’s coworkers repeatedly used the word Redskins to refer to their local professional football team, and a reasonable person, hearing employees’ chatter about the “Redskins” in relation to football, would not conclude that the employees were using the term as a racial slur. Likewise, a reasonable person observing a coworker’s Redskins necktie would conclude not that the coworker meant to disparage anyone but that the coworker wished to express support for the football team.

The Court stated that it might have come to a different conclusion if employees had repeatedly used the term in effort to ridicule TallBear or directed the term at TallBear.

However, the Court did not dismiss TallBear’s retaliation claims against the department.  The Court found a temporal connection between some of TallBear’s complaints and tangible employment actions taken by the DOE.

As for how this case can be applied in your workplace, there are obviously some terms that have no derogatory meaning behind them that an employer could disregard.  However, there are terms and phrases that can be very offensive to employees.  An employer must be mindful of these situations and respond accordingly, via its complaint intake process, and not punish an employee for bringing the complaint, even if offensive or derogatory intent is not found.

In addition, employers can take steps to educate your employees on racial and cultural sensitivity so that all employees feel their complaints are being neither minimized nor ignored.  This leads to a more inclusive working environment for all.