By Christopher R. Deubert, Senior Writer
Professional sports, perhaps more than any other workplace, is merit-based. Their highly competitive requires teams to retain only the most highly-skilled players. Failure to do so will be apparent in the win-loss record. The Chicago Bears have recently confidentially settled a lawsuit brought by Jonathan Bresser, a student at DePaul University College of Law in Chicago, challenging whether the team followed the same merit-based principles off-the-field as on.
Diversity and the NFL Workplace
While the majority of NFL players have long been Black, the same has not been true among coaches, executives, and other team personnel. Since 2003, the NFL has enforced various forms of the “Rooney Rule,” which seeks to increase diversity in the coaching ranks by requiring the interviewing of minority candidates. The Rule has had mixed success and was the subject of a recent complaint to the U.S. Equal Employment Opportunity Commission from America First Legal, an organization directed by former staffers from the Trump Administration. At the same time, Brian Flores, a Black coach, has an ongoing (but stagnant) lawsuit against the NFL and various clubs alleging that their hiring practices are discriminatory.
Relatedly, obtaining any job in sports is difficult due to the high demand for such positions. A variety of structural and socioeconomic factors would support the position that white candidates generally have an advantage over minority candidates. Most notably, entry level positions in sports are commonly unpaid, a reality that students and recent graduates from wealthy families can afford but many minority candidates cannot.
Finally, the racial make-up of lawyers is relevant. According to the American Bar Association, 14.1% of lawyers are non-white and 37% are women, both numbers being well below their proportions in the general population.
The Bears’ Fellowship
With these challenges likely in mind, in the fall of 2023, the Bears posted a job posting for a “Legal Diversity Fellow.” The Fellow was to be a student from a local law school who would have the chance to work with the team over the summer performing a variety of legal tasks standard to such internships. In addition, the Fellow would “have the opportunity to work with the Club’s Diversity Equity & Inclusion (DEI) department on a variety of the Club’s DEI goals, initiatives and priorities.”
So far so good. Where things became problematic is that under “Qualifications,” the Bears said the Fellow must be a “[p]erson of color and/or female law student.”
Bressser’s Application and Challenge
In November 2023, Bresser applied for the fellowship, including with a cover letter in which he asserted that his more than two years as a litigation paralegal at Trent Law Firm, P.C. made him well-qualified for the role. Bressler’s letter also emphasized his experience with and commitment to issues of diversity.
On January 5, 2024, Bresser received an email from the Bears advising him that his application had been denied. The Bears’ stated reason for the rejection was that they had “chosen to pursued other applicants whose experience and qualifications more closely match our needs.”
On March 11, 2024, Bresser, represented by the law firm at which he works, filed a lawsuit in an Illinois federal court alleging that the Bears and several of its employees violated Title VII of the Civil Rights Act and its Illinois equivalent by not hiring him because he is a white male.
On its face, Bresser’s claim was compelling. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin, or sex. The U.S. Supreme Court has recognized very limited exceptions to these strict prohibitions, permitting employers to adopt “affirmative action plans” where (1) preferences are intended to “eliminate manifest racial imbalance in traditionally segregated job categories”; (2) the rights of non-minority employees are “not unnecessarily trammeled”; and (3) the preferences are temporary in duration. Otherwise, absent very unique circumstances, protected characteristics cannot be the basis for making employment decisions.
The Bears’ fellowship would not qualify as an affirmative action plan, which historically have been directed toward large, often blue-collar workforces.
Consequently, the Bears may have been able to argue that Bresser’s race and sex were not considered as part of the decision not to hire him for the fellowship. Yet, Bresser’s Complaint attached a printout from LinkedIn which shows that someone from the Bears viewed his LinkedIn profile – which contains his picture – shortly before his application was denied.
Claims of racial or sex discrimination are best defeated by showing that the employer had legitimate non-discriminatory reasons for the action it took. Here, Bresser seems to have met the minimum qualifications for the role aside from his race and sex but it is unlikely he was the best candidate. Judging from the resume attached to his complaint, Bresser’s work as a paralegal was his only legal experience and he has no experience in the sports industry. As stated above, the sports industry is very competitive and there are almost always many highly qualified candidates for positions. Moreover, Chicago is home to several excellent law schools, most of which are better ranked than DePaul. There were potentially very impressive candidates from some of these schools. Ultimately, Bresser would have needed to prove that his race and sex were motivating factors for his non-selection.
Settlement
The Bears’ fellowship program appears to be one among many that got out ahead of the law. At the same time, given that Bresser’s non-speculative damages would be minimal, the club was likely wise to settle the case quickly to avoid potential liability for statutorily-required attorneys’ fees. And don’t expect the Legal Diversity Fellow role to return.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
