Do Donald Sterling’s Racist Comments Merit EEOC Enforcement?

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the federal laws that make workplace discrimination illegal. Would Donald Sterling’s private comments regarding race constitute workplace discrimination and, therefore, be subject to EEOC investigation?

As owner of the Los Angeles Clippers basketball franchise, Sterling qualifies as “a supervisor with immediate (or successively higher) authority over the employee.”

Even if Sterling did not exercise immediate supervisory roles in the day-to-day management of personnel, the Clippers franchise – as an employer covered by Title VII of the Civil Rights Act of 1964 – would still be liable if Sterling’s comments were proved to be unlawful harassment as an alter ego or proxy to the Clippers organization.

Sterling’s comments and actions did not result in a tangible employment action (refusing to hire or underpay African-American players versus other races, as an example). But the EEOC doesn’t require a hiring/firing situation to establish grounds for investigating a harassment case, which is what Sterling’s comments may constitute if they create an unlawful hostile environment.

Did Sterling’s Comments Constitute Employee Harassment or Discrimination?

Donald Sterling’s comments included “ethnic slurs, racial ‘jokes’, offensive or derogatory comments, or other verbal or physical conduct based on an individual’s race/color” as defined by the EEOC.

Los Angeles Clippers players threatened to walk out of their contract responsibilities based on their perception that the comments created a hostile workplace environment that interfered with their work performance, which the EEOC would consider illegal harassment – especially if the harassment could be proven to be pervasive and long-term. Other mistresses with secret recordings, for example, might help bolster a harassment claim.

Would V. Stiviano’s Recording Be Admissible as Evidence?

Would audio recordings of a private conversation (where at least one party had not consented to being recorded) be admissible as evidence in court? In Sterling’s case, the conversation took place in California where the Two-Party Consent law makes it illegal to record people without their consent.

But Sterling admitted it was his voice on the audio recording captured secretly by his mistress. That may not be technically legal, but it is now widely known by the public, much like Mel Gibson and Paula Deen’s racist comments.

Does a Private Conversation Away from the Workplace Affect Discrimination and Harassment Cases?

Sterling’s comments were made in private and not in the presence of employees, but employers are on the hook for workplace discrimination claims whether the alleged discrimination or harassment took place in or out of the workplace.

According to EEOC San Francisco Regional Attorney William R. Tamayo, “Employers have a responsibility to protect their employees from harassment, whether by a supervisor or co-worker or even a non-employee. They cannot safely ignore actions simply because they take place off company premises or after hours. The courts have found that harassment both in and outside the workplace can combine to create a hostile environment.”

A person claiming employer discrimination or harassment doesn’t even need to be in the presence of the harasser as the time of the incident.

  • In Schwapp v. Town of Avon, a Second District Court allowed remarks not made directly in the presence of the Plaintiff (an African American) as evidence of a hostile work environment.
  • In Robinson v. Jacksonville Shipyards, a U.S. District Court determined that “the perception that the work environment is hostile can be influenced by the treatment of other persons of a plaintiff’s protected class, even if that treatment is learned second-hand.”

Will the EEOC Pursue an Investigation of the Los Angeles Clippers?

Although racism remains the most frequent claim filed with the EEOC, it’s not likely players will lodge a complaint if they feel that extra-judiciary justice has been served by the NBA lifetime ban on Sterling and a hefty fine of $2.5 million. Additionally, the league is searching for ways to force a sale of the Clippers. New ownership would presumably mitigate claims of long-term and pervasive workplace harassment as the hostile racist behavior may have been limited to one person who may soon have no ties to the Clippers.

Sterling and his team of attorneys are more likely to spend years in court protecting his ownership of the Clippers than defending against claims of workplace harassment.

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