Thursday, February 3, 2022

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

Flores has turned himself toxic. Yet, any team refusing to hire Flores because he blew the whistle on the NFL's discriminatory hiring practice would likely be illegal retaliation. But it doesn't mean it won't happen.

Let's break this down. Filing a lawsuit claiming an employment law violation (e.g., unlawful discrimination) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone because that person filed a lawsuit claiming an employment law violation constitutes unlawful retaliation. 

Thus, if someone can prove that prospective employers are not hiring them because of a prior lawsuit against a former employer, then that applicant would have a solid retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don't like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against—provided, of course, that the applicant can prove the prior lawsuit caused the failure to hire.

What's the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Flores' lawsuit. If you are going to search applicants' backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don't look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant's past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.