Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.” Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players. White players were labeled “smart and hardworking,” black players were “naturally talented.” Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”
Race has long been significant in sports, today perhaps nowhere as much as in the NBA. Yet discrimination scholars have largely overlooked this fertile field. Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code.
Lacy stresses that “hip hop culture” is central to NBA marketing and corporate tie-ins (e.g., dancers and music during games, and an NBA-licensed video game emphasizing hip hop culture). Dress has been part of that, from “Air Jordan” sneakers, to baggy shorts, to “bling.” Yet since 2005, the NBA has imposed a dress code on its players that generally requires “business casual” clothes even when off-duty, and specifically bars various indicia of hip hop culture. The racial overtones in both marketing “hip hop” in some contexts and being wary of players seeming to be too involved with it are obvious.
Lacy ties this to the broader issue of employer policies on appearance and conduct outside the workplace, arguing that such rules can violate Title VII’s disparate impact doctrine. Employers have legitimate interests: highly controversial acts may reflect on the employer’s reputation or perceived position on a topic. But such policies can also interfere with cultural expression in private life, including cultural expressions closely tied to race. Lacy critiques cases that reject Title VII challenges to appearance policies (on clothes, grooming, etc.), and he proposes a new Title VII analysis for such employer policies that govern off-duty conduct.
Under Lacy’s proposed test, the employee must first show that the policy affects his private life and affects it because of (in this case) his race. The burden would then shift to the employer to prove it adopted the rule for a rational, job-related purpose, and that the rule was reasonably necessary to accomplish a legitimate business purpose. The employer would have to show it was impossible to otherwise accommodate the employee without an undue hardship on the business. The burdens of production and persuasion would then shift to the employee to show a disparate impact on his protected group and that an alternative practice exists that would serve the employer’s purpose without the discriminatory effect.
Lacy applies his proposed test to the NBA policy and finds a strong case for a violation, at least to the extent that the policy regulates players when they are not doing the business of the league (e.g., when they are attending games on their own time). The employer might argue that NBA players are so famous that their conduct would always be associated with the NBA or team. But this proves too much: can the NBA bar players from taking positions on any arguably controversial topic? Also, famous players may be associated with their teams when they appear in uniform and/or in advertisements, but not in all facets of the player’s private life. Perhaps most revealingly, why does the dress policy not regulate coaches and owners, who are often quite visibly associated with the team? Lacy gives the excellent example of Dallas Mavericks owner Mark Cuban: well known, flamboyant, and often in the stands at games in clothing that would not satisfy the dress code.
Lacy also discusses alternative theories: the wrongful discharge tort, and state statutes giving some protection for off-duty conduct. While these theories are relevant and worth noting, I found the Title VII part to be the most intriguing. I would have liked to see Lacy discuss in more detail what he feels the specific legal consequences should be of the NBA’s hypocrisy (enforcing the dress code while simultaneously exploiting hip hop culture). But overall, this is a very interesting and thought-provoking piece, which I liked a lot.