This time of year the media spills a lot of ink discussing the lack of Black head coaches in the NFL, yet what receives far less attention is the potential legal liability for race discrimination that an NFL team could face. That no team has been sued for this is somewhat remarkable given that each NFL team is a multi-billion dollar company with near constant local and national media coverage and rabid fan bases. The NFL’s stark underrepresentation of Black head coaches has existed since the league’s inception over 100 years ago, and it continues through today where only one NFL team employs a Black head coach.

A Fortune 500 company with the same hiring practices as many NFL teams would almost certainly already have had multiple major lawsuits against it under anti-discrimination laws such as Title VII of the 1964 Civil Rights Act. This begs the question then of what a potential race discrimination/glass ceiling case against an NFL team would look like.

Note: While a lawsuit against the entire NFL could be considered, a legal claim against an individual NFL team, as opposed to the league, is covered in this article.

The Glaring Shortage Of Black NFL Head Coaches

The NFL’s lack of diversity among its head coaches is consistently covered by the press and has been for decades. In the early 2000s, the Fritz Pollard Alliance was created and it continues to advocate for the NFL to hire more Black head coaches and executives. Interestingly, the organization grew out of a threatened lawsuit against the NFL related to the racial glass ceiling for Black head coaches. Rather than litigate, the parties created the Alliance and soon after enacted the “Rooney Rule,” which requires teams to interview Black coaches for head coaching vacancies. Since then, it does not appear that any NFL team has faced a lawsuit for discrimination/the racial glass ceiling against Black coaches.

Despite the best intentions of the Fritz Pollard Alliance, the bleak shortfall of Black NFL head coaches remains and continues to be a stain on the league. Some historical context further highlights the stacked deck that Black coaches appear to have faced in advancing to the top job:

• Approximately 70% of NFL players are Black

• From 1925 to 1988, the NFL did not hire a single Black head coach

• In the 32 years since the Los Angeles Raiders hired Art Shell as a head coach in 1989, there have been less than two dozen Black head coaches hired (and this list includes those who served for only a short time as an interim head coach)

• Today the NFL has only one Black head coach among its 32 teams

• Six NFL teams have never hired a Black head coach on a full-time basis

Likewise, NFL team owners are the ultimate decision-makers when it comes to hiring a head coach. No NFL team has ever had a Black owner and currently only 2 of the 32 teams have a minority owner (Shahid Kahn, who is a Pakistani American owns the Jacksonville Jaguars and Kim Pegula, who is Asian American and co-owns the Buffalo Bills).

A Washington Post article recently quoted the NFL’s executive vice president of football operations, Troy Vincent, who was addressing the lack of Black NFL head coaches as saying, “[t]here is a double standard, and we’ve seen that[.]” His quote also highlights that, even when Black head coaches are hired, they are often given less time to succeed on the job.

With this context in mind, let’s turn to the nuts and bolts of a potential legal claim against an NFL team related to its head coach hiring decisions.

Legal Elements Of A Race Discrimination Case Against An NFL Team

Different laws exist under which an NFL team could face potential legal liability for its racial glass ceiling in failing to promote Black head coaches. The two main federal laws are Title VII of the 1964 Civil Rights Act and 42 U.SC. section 1981.

To prove intentional promotion discrimination under Title VII or Section 1981, a Black NFL head coach candidate must first show that:

• they are a member of a protected class;

• they applied for and were qualified for the head coach position; and

• after they were rejected, the position remained open or was filled by a person with similar qualifications.

Many unsuccessful Black head coach candidates will probably meet this initial (prima facie) case of discrimination. The next step is for the NFL team to state a legitimate, non-discriminatory reason for why it did not select the Black coach for the job. It is nearly unheard of for an employer to not provide some explanation for why it did not hire someone.

As a result, where the rubber hits the road in these cases is finding out whether the rejected candidate can show that the team’s reason for its decision was a sham for impermissible discrimination and/or that the explanation is unworthy of credence. See, e.g., Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148 (2000).

Proving that an NFL’s team claimed reason for not hiring a Black head coach is actually a pretext for discrimination can take a variety of forms. For example:

• Evidence that the rejected coach was substantially better qualified than the coach selected;

• White coaches with similar experience and background have been given better opportunities or have been “groomed” to be hired as a head coach;

• Shifting and inconsistent reasons for not hiring the Black coach are offered by the team;

• The team’s failure to follow its normal hiring protocols in selecting the head coach; and

• Statistical evidence related to the team’s and/or the NFL’s history of not hiring Black coaches

This last type of evidence could be particularly helpful in proving a Title VII race discrimination claim. Statistical data and comparative information about an NFL team’s previous hiring decisions for the head coach job can provide necessary background and historical context for how a particular decision was made.

Note: under Title VII, a Black coach(es) could also consider an unintentional discrimination (also called disparate impact) lawsuit if they can identify a specific neutral employment practice that is causing the negative impact on hiring Black head coaches. This potential type of lawsuit will be covered in a separate article.

Using Statistics To Support A Racial Glass Ceiling Claim Against An NFL Team

The historical and glaring lack of Black NFL head coaches could serve as evidence to corroborate a race discrimination claim against an NFL team. In court, the lack of diversity among an employer’s workforce is “clearly ‘relevant to the claim’ of an individual plaintiff in a Title VII case.” Mitchell v. Nat’l R.R. Passenger Corp., 208 F.R.D. 455, 459 n. 5 (D.D.C. 2002); see also Jones v. Mukasey, 565 F.Supp.2d 68, 78 (D.D.C. 2008). Indeed, this statistical data “can be used by a plaintiff to make out a prima facie case of discrimination or to show that the employer’s stated reasons for the challenged actions are a pretext for discrimination.” Id. (citing, among others, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)).

Often a company will argue that it has not promoted a significant number of Black employees to executive positions because few qualified Black employees exist in the “feeder” positions to these C-suite roles. But many NFL teams would have a difficult time with a defense claiming that qualified Black candidates do not exist in head coach “feeder” positions given that:

• Approximately 35-40% of NFL assistant coaches are Black

• A team can select its head coach not just from within the organization but from other NFL and/or college teams so the pool of qualified Black candidates for a particular NFL team is broader than its own assistant coaches

• Today only one Black head coach (3.1% of NFL head coaches) is employed in the NFL

Even if NFL teams add a handful of Black head coaches in the next hiring cycle, this incremental progress will barely make a dent in the historical (and ongoing) underrepresentation of Black NFL head coaches.

And certain NFL teams have never hired a Black NFL coach. According to a study by USA Today, six NFL Teams have never hired a Black candidate (or any person of color) as their head coach or general manager on a full-time basis: the Atlanta Falcons, Dallas Cowboys, Jacksonville Jaguars, Los Angeles Rams, New England Patriot, New Orleans Saints, and Tennessee Titans.

Where an employer has never hired a Black employee for certain positions, courts refer to this as the “inexorable zero” phenomenon. “The courts have been particularly dubious of attempts by employers to explain away the inexorable zero . . . [and] existence of the ‘inexorable zero’ in Title VII cases raises the judicial eyebrow.”). Strange v. Lee Schwab Tire Centers of Oregon, Inc., 2009 WL 2950641, at * 3 (W.D. Wash. Sep. 3, 2009). In the NFL, with an abundant pool of qualified Black coaches, it would not be surprising if “a court cannot help but be circumspect” of an NFL team that repeatedly selects only non-Black employees for its head coach role. See U.S. v. City of New York, 713 F.Supp.2d 300, 317 (S.D.N.Y. 2010).

Finally, as discussed earlier, the ultimate decision-makers in hiring an NFL head coach are the owners of the team. And NFL owners are currently and have always have been overwhelmingly comprised of white individuals. This too is a factor to be considered in determining if race discrimination played a part in the head coach hiring decision.

The Key Reason Why No NFL Team Has Been Sued For Its Racial Glass Ceiling

In light of the above, a question remains: why hasn’t an NFL team been sued for race discrimination/racial glass ceiling related to its head coach hiring process? A variety of factors are in play but the pivotal reason is that it would likely be career suicide for a Black assistant coach to sue an NFL team for race discrimination. Stranger things have happened though and if a lawsuit does eventually emerge it will be fascinating to see how the NFL, its fans, and—perhaps most importantly—NFL sponsors react.