Tuesday, March 27, 2018

Let’s all try to remember to have gender-neutral employment policies

Photo by NeONBRAND on Unsplash
Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.

The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.

The New York Times reports that the Saints maintain two sets of work rules, one for it all-female cheerleaders, and and other for its all-male players.
  • Cheerleaders must avoid any contact with players, in person or on social media. The players, however, are not similarly prohibited from initiating engagement with cheerleaders.
  • Cheerleaders must block players on social media and can not post photos of themselves in Saints gear. Players have no such restrictions.
  • Cheerleaders must not dine in the same restaurants as players, must leave a restaurant if they enter and a player is already there, and must leave if they are dining and a player subsequently enters. The Saints, however, impose no such limits on the players. 

The Saints argue that the rules are necessary to protect the cheerleaders from harassment and other predatory behavior of the players.

According to Davis’s lawyer, Sara Blackwell, “If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders. The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”

There is nothing inherently illegal about having different sets of work rules for different classes or groups of employees. The law merely requires that you apply similar treatment to similarly situated employees. And the Saints will argue that its cheerleaders and its players aren’t similarly situated.

However, one’s discrimination Spidey-sense should be going off when one of those groups is all male, and the other all female. Is there a legitimate business need to apply different work rules for these groups, or is it based on a outdated (and sexist) notion that women cannot protect themselves? It’s 2018; women are quite capable of managing their own inter-personal relationships without their employer’s interference.

No-fraternization policies are one avenue for an employer to limit its harassment liability. That avenue, however, cannot be one-way. The ban should apply equally to both genders. Otherwise, the liability limitations you think you are creating are being swallowed up by the gender discrimination problem you just created.