48 Pages Posted: 13 Oct 2010 Last revised: 21 Apr 2011
Date Written: October 12, 2010
In 2005, the NBA implemented a new dress code for players. This dress code regulated the way players dress while away from the job. Employers have long been interested in regulating employees’ conduct both on the job and off. Where the employers’ interests are impacted less the law has sometimes granted a remedy to employees whose freedom of expression has been limited. As with many of the conditions of employment, the most important consideration in analyzing the rights of employees is whether the employment at issue is public or private.
Courts have consistently permitted private employers to control its workers’ off-the-job expression unless it fits into very narrow exceptions. Expressions made on-the-job are generally afforded less protection than expression made off-the-job. Courts assessing private employees’ wrongful termination claims for years have always focused on whether and when private employers’ interest in managerial control and operational efficiency outweighed workers’ expressive interests, courts now concentrate on, and defer to, employer’s claim to control the expression of its employees to protect its own expression.
In cases involving claims of private employees disciplined for off-duty expression or conduct, employers often argue that their employees are acting as employees, even when away from work, asserting that the employers’ association with employees who engage in certain off-duty expression undermines the employers’ credibility in communicating the employers’ own contrary views. In response, courts often characterize such off-duty expression and conduct as harmful not because of what it reflects about the employee’s own ability to perform his job, but rather because of what it communicates about the employer’s position on a topic. These decisions reflect courts’ intuition that the public will inevitably associate private employees’ off-duty expression with their employers. Employees in the private workplace have little protection from the courts unless the employees’ behavior fits into narrowly defined pigeonholes. While NBA Players may still be able to work in their chose profession, their ability to express themselves in their private lives is constrained because of their race and sex. This situation requires a new Title VII framework that more carefully attends to what it is that the employer seeks to communicate and whether that message is actually impaired by employee expression or conduct.
Keywords: Employment Discrimination, Employment Law, Civil Rights
Suggested Citation: Suggested Citation
Lacy, David, Represent: Hip Hop Culture, the NBA Dress Code and Employment Discrimination (October 12, 2010). SMU Dedman School of Law Legal Studies Research Paper No. 72. Available at SSRN: https://ssrn.com/abstract=1691161 or http://dx.doi.org/10.2139/ssrn.1691161