Former Saints cheerleader Bailey Davis filed a complaint with the Equal Employment Opportunity Commission. What to do if you have similar grounds for a lawsuit.
Cheerleaders and footballers should share a level playing field.
So says Bailey Davis, 22, who told the New York Times that she has filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the New Orleans Saints for holding the cheerleaders to a stricter set of standards than the male players. The women had to block active NFL players from following them on social media, she said, and leave unapproved events — even just dining in a restaurant — if an active player showed up. The men don’t have the same rules.
Davis said the Saints fired her from the Saintsations in January, four days after she posted a photo of herself in a lacy one-piece bodysuit on her Instagram page, for allegedly breaking a rule that bans cheerleaders from appearing nude, semi-nude or in lingerie. She claims the team also accused her of breaking a rule that forbids cheerleaders from going to parties attended by Saints players; but the football players don’t have a similar missive stopping them from going to events attended by cheerleaders, which has led to Davis’ discrimination complaint.
The Saintsations’ anti-fraternization playbook allegedly rules that the cheerleaders must:
- Make social media accounts private.
- Block current NFL players from following them.
- Not post any pictures of themselves in Saints gear.
- Not attend any unapproved events where an active player may be.
- Leave any unapproved events — including dinner at a restaurant — if an active player shows up, even if the cheerleader was there first.
- Limit conversations with active players to “hello” and “good game.”
“We’re stifled by these rules,” Davis told the “Today” show on Tuesday. “I work just as hard growing up to be a dancer as the football players did to be a football player.”
Neither Davis nor her lawyer, Sara Blackwell, responded to Moneyish requests for comment. But Blackwell told the Times that the Saints’ policy puts the onus on the Saintsations women to avoid any inappropriate contact with the male football players. For example, there are almost 2,000 players in the NFL — many with social-media pseudonyms — and cheerleaders must block each one. Meanwhile, players aren’t sacked with the same limits on who can follow them.
“If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders,” Blackwell said. “The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”
The team’s lawyer responded in an email to the Times that, “The Saints organization strives to treat all employees fairly, including Ms. Davis. At the appropriate time and in the appropriate forum, the Saints will defend the organization’s policies and workplace rules. For now, it is sufficient to say that Ms. Davis was not subjected to discrimination because of her gender.”
Davis isn’t the first cheerleader to file discrimination charges against her team. The Buffalo Bills cheerleaders claimed they were forced to follow a set of unfair “glamor guidelines,” including for their hair to be worn “in a glamorous style” and to “pose for pictures enthusiastically.” They also said they had to do “jiggle tests” (that is, doing jumping jacks in tryouts to see if their flesh jiggled) and claimed their Facebook pages were monitored by team officials without their knowledge. The squad was later disbanded over a wage lawsuit.
And when the Raiderettes sued the Oakland Raiders in 2013 to get minimum wage and overtime pay, their handbook was leaked to the public, as well, revealing that it was cheerleaders’ responsibility to, “Make a point to find out if a player is married. In most cases, he won’t tell you!” They scored a $1.25 million settlement a year later.
More than 25,000 sex-based discrimination charges were filed with the EEOC last year. So what should you do if you feel like you are being held to a different set of standards compared to your coworkers?
“Their first step should be to speak to their manager, if they are comfortable to do so. This may help them to check their assumptions and receive further guidance,” Mirande Valbrune, employment lawyer and author of #MeToo: A Practical Guide to Navigating Today’s Cultural Workplace Revolution, told Moneyish.
If you are not comfortable speaking with your supervisor, or if the conversation further justifies your concerns, she suggests reviewing your company’s internal open-door policy (the communication policy to speak with a manager, supervisor, CEO, etc. for feedback or discussion about any matter of importance to the employee) and the complaint process. “Companies should be given an opportunity to cure a concern before an employee files an administrative or EEOC charge,” said Valbrune. “Indeed, the EEOC will query whether the employee has availed themselves of any internal processes and remedies before filing a charge externally.”
As far as how much an employer can dictate what you do on your personal time, Valbrune warns that “employment in the United States is largely at will, meaning an employee can be terminated for any reason at any time, assuming that the employer does not have an unlawful motive for doing so.”
That said, nearly 30 states and the District of Columbia do restrict employers’ ability to fire workers for various forms of off-duty conduct. In New York, for example, employees can’t be fired for consuming legal products like alcohol and tobacco and alcohol outside of work. But they can be disciplined if their substance use bleeds into the workday.
And in this case, “a strong argument can be made that the employer did have an unlawful reason for firing the employee, i.e., the inequitable application of a discriminatory policy,” Valbrune added. “An off-duty policy such as the one alleged here — which is presumably meant to avoid the dangers of fraternization or sexual harassment — would be lawful so long as it does not violate any contravening state law, is gender-neutral and does not unduly burden one gender over another.”
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