CHICAGOLAWBULLETIN.COM TUESDAY, AUGUST 22, 2017 ® Volume 163, No. 163 Serving Chicago’s legal community for 162 years The color barrier is broken, but bias claims remain in sports In the week following the racially same rights to make and enforce the “McDonnell Douglas burden- charged protests and violence in contracts with NASCAR that Cau- shifting formula.” This formula was Charlottesville, Va., some have TIME-OU T casian citizens enjoy. created by the U.S. Supreme Court pointed out that condemning bla- Beyond instances related to Cox in McDonnell Douglas Corp. v. tant racism is a simple task. and Diversity Motorsports, the Green, 411 U.S. 792 (1973) and pro- However, since acts of racism claim also asserts the evidence of vides that the plaintiff has the bur- and discrimination can also be historical and systematic exclusion den of first establishing a prima covert, and not always as explicit as of African-Americans from virtual- facie case of discrimination. a white supremacist rally, some- AMY N. ly all of NASCAR’s business activi- After this, the burden shifts to times it takes legal action to ex- SCHILLER ties, alleging that motor sports the employer, who must articulate, pose it. remain the most racially segregat- through admissible evidence, a le- Over time, federal and state laws ed sport in the United States. gitimate, nondiscriminatory rea- have been enacted that address The aforementioned pending sons for its actions. Then, in order Amy N. Schiller is an attorney at Schiller and combat discrimination that oc- DuCanto & Fleck LLP where she racial discrimination cases are both to prevail, the plaintiff must prove curs in various settings. One of practices family law with a strong focus brought under Title VII of the Civil that the employer’s stated reason is these pieces of legislation was the on property issues and the complex Rights Act of 1964 and Section 1981 merely a pretext to hide discrimi- Civil Rights Act of 1964. financial and custody matters facing of the Civil Rights Act of 1866. Gen- nation. Professional and college sports professional athletes and entertainers. erally, both federal statutes outlaw Assuming they make it to trial, if She can be reached at aschiller@sdflaw.com. have historically played a signifi- employment discrimination based direct evidence is lacking in the cant role in advancing the civil on race. pending suits against MLB and rights movement, both before and positions have been filled by white Title VII makes it unlawful to NASCAR, these cases will ulti- after the enactment of the Civil candidates. He alleges that since discriminate against someone on mately be analyzed using the Mc- Rights Act of 1964. But, despite giv- 2011, 10 umpires have been promot- the basis of race, color, national ori- Donnell Douglas formula. ing it a good old college try, the ed to crew chief, all of whom have gin, sex or religion. It applies to em- It will be interesting to see if sports world has not entered a been white, and almost all of whom ployers of 15 or more employees these cases against major sports “post-racial” era. had less experience than him when and prohibits discrimination in hir- organizations will garner up atten- Probably because professional promoted. ing, pay, promotion, termination, tion by activist athletes, or if they sports have a progressive reputa- Hernandez further alleges that compensation and other terms and will proceed under the radar, like tion, the racism and discrimination he has been unjustly skipped over conditions and employment. other sensitive discrimination that occur throughout the sports to work the World Series, despite Title VII prohibits both inten- cases that do not involve accusa- industry is arguably more implicit, above average evaluation marks tional discrimination and also prac- tions of blatant racism. especially if it does not involve key and consistent praise from the tices that have a disproportionately In these cases, it will likely take a players and, therefore, we don’t al- commissioner’s office, and that adverse effect on minorities, even if big win for the plaintiff first, but if ways hear about it. since 1993, he has only been chosen not intended to discriminate. that is going to happen, MLB and There are, however, discrimina- to work two World Series, in 2002 Under Title VII, the plaintiff NASCAR could certainly afford to tion-based lawsuits that sports and 2005. must establish a prima facie case of settle before that happens. teams, leagues and universities Another lawsuit, filed in the discrimination by alleging that they Despite whether the discrimina- face regularly. In fact, there are Western District of North Carolina are a part of a protected class, that tion alleged in these pending cases some notable racial discrimination (Case No. 3:16-cv-00843), is against they were qualified for a position, occurred or not, it is important that lawsuits in the pipeline right now. NASCAR and a handful other de- that they were rejected for a posi- all sports teams and leagues with One lawsuit, filed in the South- fendants associated with the racing tion and that an employee outside goals of being progressive pay at- ern District of Ohio (Case No. 1:17- organization. The CEO of Diversity of the protected class was selected tention to all cases of alleged cv-456), involves umpire Angel Motorsports Racing LLC, Terrance for the position or the employer racism and other forms of discrimi- Hernandez suing Major League Cox III, claims that NASCAR dis- continued to look for candidates. nation in order to continue aware- Baseball for racial discrimination in criminated against him because he Section 1981 applies to all em- ness and to use as guidance in baseball’s promotion and postsea- is African-American and also dis- ployers of any size and prohibits changing their business structures son assignment policies. criminated against Diversity Mo- only intentional racial discrimina- and policies. The longtime Cuban-born um- torsports because it is tion. Section 1981 claims are ana- It is commendable that leagues, pire claims that ever since 2011, African-American-owned. lyzed similarly to Title VII claims. teams and athletes have used their when Joe Torre became chief base- Cox and Diversity Motorsports However, Section 1981 claims may platform to speak out against ex- ball officer for MLB, his upward accuse NASCAR of interfering with be filed directly in federal court plicit racism and discrimination. mobility has been negatively affect- contracts and also depriving them whereas Title VII claims must be As one recent example, the ed. According to Hernandez, Torre of the right to be employed by filed with the Equal Employment Tampa Bay Rays, Buccaneers and has a history of animosity toward NASCAR. The plaintiffs allege that Opportunity Commission for inves- Lightning pledged to help pay to re- him, stemming back to at least the defendants have intentionally tigation prior to being filed in feder- move a Confederate monument 2001 and Torre’s time as manager prevented the sponsorship of al court. from the downtown area of Tampa, of the New York Yankees. African-American racing teams. Often in Title VII and Section Fla. Removing statues in the wake In his lawsuit, Hernandez alleges Their claim alleges that because 1981 cases, the plaintiff will lack di- of Charlottesville is symbolic, but he has been turned down four Cox is African-American and be- rect evidence of discrimination and the important question is what in- times for a crew chief position for cause Diversity Motorsports is must prove discriminatory intent ternal changes against potential which he was fully qualified and African-American-owned, using circumstantial evidence. implicit racism and discrimination that since 2000, all 23 crew chief NASCAR has denied them the These cases are analyzed using are on deck in the sports industry? Copyright © 2017 Law Bulletin MediaTM. All rights reserved. Reprinted with permission from Law Bulletin Media.