New Orleans Saints Cheerleader Who Was Fired Files an EEOC Complaint for Disparate Treatment: The Rules Apply to Cheerleaders, Not the Players

The New Orleans Saints fired cheerleader, Bailey Davis, after she had been with the team for three seasons, and all without trouble.  Ms. Davis was terminated for cause for the following reasons:

  • She posted a photo of herself on Instagram in a one-piece outfit that the Saints said violated the rule that cheerleaders cannot appear nude, seminude, or in lingerie. 
  • She attended a party where there were also Saints players (Cheerleaders are prohibited from attending parties that include Saints players

Ms. Davis has filed a complaint with the Equal Employment Opportunity Commission (EEOC) on the grounds that the Saints have two sets of rules, one for the players and different ones for the cheerleaders. Ken Belson, "Men Play by Own Rules, Fired Cheerleader Says in Filing Against Saints,"  New York Times, March 26, 2018m p. SM 1  Ms. Davis's mother had been the choreographer for the "Saintsations" for 18 years, but resigned following her daughter's termination.

For example, from the handbook for cheerleaders:

  • The Saints have an anti-fraternization policy that requires cheerleaders to avoid contact with players but which does not require football players to do the same
  • Players are not penalized for contact with cheerleaders either in person or oneline
  • The cheerleaders must block players from following them online, but players are not prohibited from seeking to follow them, and often disguise their identities in order to follow the cheerleaders
  • Cheerleaders cannot post pictures of themselves in Saints gear, but players do not have to follow this rule
  • Players are not required to monitor who is following them on their social media sites
  • Cheerleaders cannot dine in the same restaurant as players.  If a cheerleader enters a restaurant and sees a player, she must leave.  If a cheerleader is eating at a restaurant and a player enters, the cheerleader must leave.

The NFL explains that the rules are necessary to protect the cheerleaders from the players.  However, the onus is all on the cheerleaders to stop their behavior in order to prevent the players from preying on them. 

The Buffalo Bills have disbanded their cheerleading squad, but prior to their elimination, management monitored the cheerleaders' Facebook pages without the knowledge ot consent of the cheerleaders. There has also been litigation over wages, which resulted in the cheerleaders earning minimum wage and overtime. 

If the goal of the Saints' policy is to prevent fraternization, then the rules must not put the burden entirely on the women.  The rules that are designed to prevent fraternization should apply to all employees of the Saints, male or female.  Ms. Davis may actually have a valid argument about the disparity in applications of the rules. 

DISCUSSION STARTERS

Explain the disparity in treatment between players and cheerleaders.

What theory could the EEOC apply to the claim of Ms. Davis?