In any other NFL offseason, with the hype over combine results all over the television and free agency in full swing, it’s likely many football fans might not notice the NFL Competition Committee meeting in the background. But this year, the committee is making news as it mulls over a controversial potential new rule that could result in individual players being penalized for using the N-word. The potential move is another effort by the NFL to clean up its image in the wake of scandals such as the Richie Incognito/Jonathan Martin scandal that surfaced during last season.
The debate over the new rule has brought about opposition from at least a few current NFL players, such as Seattle cornerback Richard Sherman, who told Sports Illustrated’s Peter King that banning the N-word is “an atrocious idea,” adding that he feels its “almost racist” for the league to target only one word. Sherman stated that the N-word is present “in the locker room and on the field at all times” and that he hears it “almost every series out there on the field.” Free agent linebacker D’Qwell Jackson sees it a different way. According to King, Jackson told him he feels the rule would be great for the game, assuming the NFL could get it implemented, although he noted that enforcing the rule could prove difficult. As King’s article points out, the penalty’s stigma could be significantly more far-reaching than the yards assessed:
“What happens if an official thinks he heard the n-word from one player and it actually was another? The referee could call the unsportsmanlike conduct penalty/language foul, and if the offending player is white, it’s going to scar him for his career. What if the call is made on the wrong player?”
Still, the NFL would not be the first place language prohibitions were enforced in sport. In June 2012, British soccer star John Terry was put on trial for alleged “racial abuse” of an opposing player during a match. The specific allegations were that Terry had used the word “black” as a racial slur toward an opponent as part of a heated exchange of insults and foul language between the two. Terry was ultimately acquitted of the charges after the magistrate hearing the case found no evidence that Terry was a racist and that his explanation of the context in which the word was used was plausible.
While making a racist remark is not crime in the United States, employers in the states can incur significant civil liability for allowing racially insensitive language to permeate the workplace. Use of the N-word or other racially derogatory terms may contribute to a hostile work environment under Title VII of the Civil Rights Act of 1964, which also prohibits discrimination based on several other protected characteristics in addition to race. The test for a hostile environment is whether the complained-of conduct is severe or pervasive enough that it effectively alters the employee’s working conditions. Under this test, an employee may establish a hostile work environment through one, significant act of abusive conduct, or multiple acts of insensitivity, which occur repeatedly. In these claims, context matters greatly. What is offensive to one might not be offensive to another, and vice versa.
Although some NFL players might not make a big deal out of the use of language like the N-word due to its frequent use, an employer should never take such language lightly. In fact, an employer’s defense to coworker-on-coworker harassment hinges on being able to show that it promptly investigated and took appropriate remedial measures upon learning of the conduct. While employers aren’t expected to be the “language police,” they should provide employees with clear avenues for reporting offensive conduct and always be responsive to employee complaints. If necessary, the employer should have a relationship with a legal professional to consult with after an investigation to determine what remedial action to take, if any.
A 15 yard penalty is irrelevant to the racial/sexual harassment issue. An employer (and perhaps the league) is responsible for protecting employees from harassment. If they are treated like every other employer, they have to stop the offending conduct. Failure to do so can and should result in EEOC action. The real fun will begin when a player complains about harassment and then is demoted from starter or cut from the team. The retaliation claims should tie up team lawyers for years.