Will the Obama EEOC sue the NFL over its new domestic violence policy?

The answer, of course, is no. If anything, the Obama administration seems to be pushing the NFL to prevent young black men who have been convicted of no crime from earning a living.

But my question isn’t frivolous, given the EEOC’s litigation policy towards employers that deny employment opportunities to blacks who get into trouble with the law. Indeed, the EEOC has no tolerance at all for employers who exclude applicants merely for being arrested or charged with a crime.

Ordinarily, only if the exclusions are based on actual convictions will the EEOC even listen to the employer’s defense. But the NFL and/or NFL teams apparently will suspend players in the absence of a conviction.

The Obama EEOC’s litigation position in cases involving exclusion criminal convictions also disfavors the NFL. In one case I worked on, the Obama EEOC sought damages and employment offers for dozens of applicants excluded due to their criminal convictions.

One of the applicants for whom the EEOC sought such relief, a Hispanic female, was convicted of attempted murder for shooting at her husband in a college football stadium where he was working as a camera man. Talk about domestic violence!

The EEOC will attack an employer’s criminal conviction policy only if it thinks the policy has a disparate impact on a particular group. Will the NFL’s treatment of domestic violence offenders have a disparate impact on Black players? In other words, will Black representation among those disciplined significantly exceed Black representation among all NFL players? I don’t know, but based on the incidents I’m aware of, it seems quite possible.

If disparate impact exists, the employer must show that its policy is job-related or required by considerations of business necessity. Eschewing domestic violence has no relationship to one’s ability to play football.

The NFL would claim, however, (1) that it’s part of a player’s job to serve as a role model and (2) that it’s necessary for the league to exclude wife/girlfriend beaters in order to protect its image.

Whatever one thinks of these kinds of arguments, it’s clear that the Obama EEOC doesn’t think much of them. To argue to the EEOC that the employer needs to exclude criminals for reasons of “optics” is to waste one’s breath. In its view, the need to make Blacks with criminal records employable trumps all considerations of public relations.

Some sponsors have put pressure on the NFL to adopt tougher policies on domestic violence. This, though, seems mostly like noise. Will Budweiser really stop advertising on NFL games, given the millions upon millions of beer buyers in the audience?

To the Obama EEOC, it may not matter. In my experience, the Obama EEOC will not accept the existence of an employment policy that disproportionately excludes Blacks merely because the employer’s customers (or others who deal it) want such a policy.

Moreover, even a firm demand by a customer is unlikely to impress the EEOC. As it sees things, customer preferences are no excuse for “discrimination” (a circular argument when used in disparate impact cases, where a policy is only discriminatory if not justified by business necessity).

At a minimum, the Obama EEOC would insist that the NFL quantify and prove the amount of financial loss it would incur from not coming down harder on players who engage in domestic violence. There is no way the NFL could make such a showing to the EEOC’s satisfaction.

The NFL will not have to. The Obama administration doesn’t want to be perceived as soft on domestic violence. More than that, it doesn’t want to miss out on the fun of baying at the NFL over this issue. Thus, it will applaud, rather than attack, moves by the NFL that deprive Black players of portions, if not the entirety, of what is usually a short career.

I’m glad that the Obama EEOC will not sue the NFL over its new domestic violence policy. But the fact that it might very well sue an ordinary employer for doing what Team Obama wants the NFL to do demonstrates the unsoundness of the EEOC’s position on employers’ criminal conviction policies.


Books to read from Power Line