“Tough Coaches” at the professional level or college level garner reputations on their own. As sports become more professional and retain a formal structure, it is essential for clubs to understand the line between a “tough coach” and a “hostile work environment.”

HOSTILE WORK ENVIRONMENT BASICS

Elements

As always, let’s begin with the basics. In order to evaluate whether a coach is a liability (creating a hostile environment), clubs must be aware of the elements of a Hostile Work Environment (“HWE”) claim.

In order to bring a viable cause of action for HWE, an employee (player) must demonstrate the following:

ELEMENT #1:

Player suffered intentional discrimination because of a protected status.

NOTE: Protected status refers to the classes protected under Title VII. These are race, gender, sexual orientation, religion, national origin, or genetic information. In other words, a player must demonstrate that they are being discriminated against because of one of the aforementioned classes.

CLUB CONSIDERATIONS: This element is important. A coach can criticize a player’s soccer skills without running afoul of Title VII.

ELEMENT #2:

The discrmination was severe or pervasive,

NOTE: The law does not protect employees (players) against coaches/supervisors who are jerks. It is not enough to say that a coach/supervisor is mean.

The conduct must be “severe or pervasive.” When assessing whether conduct is severe or pervasive, the fact finder must look at the totality of the circumstances. Below are the factors to be considered:

• The frequency of the behavior.

NOTE: Usually, one incident is not enough to demonstrate a HWE. With that being said, the aggregate effect of less-severe aggressions can amount to a HWE. When the harassment is not severe on its own, the incidents of such harassment must occur either “in concert or with regularity.”

CLUB CONSIDERATION: While a coach may not be punching walls or throwing chairs, the aggregate effect of every day aggressions could amount to an HWE for the players.

• The severity of the actions.

NOTE: Courts note that unless extremely serious, one isolated incident will not amount to harassment. There are instances, however, when “…a single incident of severe harassment in the workplace may contaminate the work place to such a high degree that it will be considered hostile.”

CLUB CONSIDERATION: Clubs cannot make the excuse of, “it’s never happened before.” If a coach behaves in a dangerous, violent, or extreme manner, that may be enough to expose the club to a HWE claim.

• Whether the actions or words are physically threatening.
• Whether the actions or words are humiliating.
• Whether the action or communication is a “mere offensive utterance.”
  • SIDE NOTE: Again, the law affords some grace for the “jerks.” The Supreme Court in Faragher v. City Boca Raton explained that simple teasing, offhand comments or isolated incidents are not enough to demonstrate a HWE.
• Whether it unreasonably interferes with an employee’s work performance.

ELEMENT #3:

The Discrimination detrimentally affected the Player.

Players must demonstrate that the harassment has affected their ability to perform their job (play).

ELEMENT #4:

The discrimination would detrimentally affect a reasonable person in like circumstances.

ELEMENT #5:

The existence of “respondeat superior” liability.

NOTE: What does this latin phrase mean? It stands for the notion that the employer (club) can be subject to liability for the HWE caused by a Supervisor. As explained below, if a coach is a supervisor, a club may be on the hook for the coach’s actions.

Coach as a Supervisor

The first logical question…”Is a Coach a Supervisor?” The answer is “probably yes.”

A supervisor is an individual who has the power to effect, “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Check out this EEOC Guidance for more information.

There is a strong argument that a coach is a supervisor. At a minimum, this argument would most likely survive a motion to dismiss. In other words, if a player were to bring a cause of action alleging that her coach was her supervisor, the likelihood of the complaint getting dismissed at the initial stage would be low. After all, a coach has much authority on the every day working life of the player.

It is worth noting, even if a coach is not deemed a supervisor, a club can be liable for a HWE caused by a co-worker when the club “[knew] or should have known of the conduct…”

HYPOTHETICALS

Let’s look at two hypotheticals to exemplify the difference between a tough coach and a harasser:

Hypo #1:

• For the last month, Sally Striker has played like garbage. The timing of her runs back for the ball are horrible. On the rare occasion where she has a nicely timed run, her touch is off.
• Coach Trunchbull for the last month has said the following to Susie Striker at every practice:
  • “You are a horrible soccer player, Sally Striker!”
  • “You MUST work on your touch! This is the worst touch I have ever seen in the history of the sport of football!” (NOTE: Coach Trunchbull is from the U.K.)
  • One time, Coach Trunchbull punched a wall and screamed that Sally Striker was an embarrassment to football.

Conclusion: These facts do not amount to a hostile environment. After all, Coach Trunchbull is talking about Sally Striker’s soccer skills. Soccer skills are not a protected class under Title VII. Coach Trunchbull, while perhaps harsh, is just being a tough coach.

With that being said, Coach Trunchbull’s act of punching a wall would most likely need to be addressed as that behavior does not lend itself to a safe work environment.

Hypo #2:

Let’s look at a similar hypothetical, with some minor changes. (NOTE: Trunchbull is still British.)

For the last month, Sally Striker has played like garbage. Susie Striker is a lesbian. Susie is also a devout Catholic. She prays before every practice that she becomes a better soccer player. Everyone knows she prays before practice.

With that begin said, the timing of her runs back for the ball are horrible. On the rare occasion where she has a nicely timed run, her touch is off. She has not been playing well for the last month.

• Coach Trunchbull for the last month has said the following to her:
  • “For a lesbian, you’re awful at football!”
  • One practice, after a particularly horrible touch, Coach said “I thought lesbians were supposed to be good at sports!”
  • On several occasions, Coach Trunchull kicked over the water jug while saying “$%^& ^ Catholics.”
  • One time, Coach Trunchbull punched a wall in the locker room after screaming at Sally Striker telling her she is an embarrassment to football, the LGBTQ+ Community and God.

Conclusions: This is an example of a coach as a harasser. As seen above, Coach Trunchbull is commenting repeatedly for a month on Sally Striker’s sexual orientation and religion.

WHAT CLUBS CAN DO TO MITIGATE EXPOSURE TO HOSTILE WORK ENVIRONMENT CLAIMS

The Supreme Court explained in Faragher v. City of Boca Raton that employers can put forth an affirmative defense when faced with a claim for HWE. A viable defense to a HWE claim is comprised of two parts:

• The employer exercised reasonable care to prevent and correct promptly any harassing behavior, AND;
• Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm.

So what does this mean? The above defense is known as the “Faragher-Elerth Defense.” In order to be able to put forth a defense to a HWE claim, the Club must show:

• That the Club exercised reasonable care to prevent the harassing behavior.
• Upon notice of the alleged harassment, the Club promptly investigated and corrected the situation.
• The Club had a harassment policy in place.
• The Club had a procedure for all employees to notify the Club of harassment.

What Can Clubs Do?

Clubs must look to the Faragher-Ellerth Defense as a playbook for how best to prevent and respond to HWE claims. The most prepared clubs will have the right policies and procedures in place. Below are suggestions for clubs. The below tips will not only (1) aid in ensuring an environment free of hostility, but will also (2) allow a club to put forth a defense in response to any HWE claims. If clubs do not have the requisite policies and procedures in place, they will not be able to put forth a viable defense to a HWE cause of action.

Tips for Clubs:

Conduct workplace training for all employees, both on-the-pitch and off-the-pitch. This way, everyone understands what constitutes a HWE. Clubs should have employees engage in an interactive session and confirm in writing that they attended such training.

• Written Anti-Harassment Policy

Have a written anti-harassment policy. The policy must clearly define harassment and a hostile environment. Even more, the policy must include a step-by-step explanation of how an employee can notify the Club of such harassment.

• Utilize the Written Policy

It is not enough for a club to simply have a policy. The club must demonstrate that it utilizes the policy. Clubs must ensure that the written policy is distributed and reviewed by all employees. Prudent clubs will have employees (players) sign a document confirming that they read and reviewed the policy.

• Prompt Investigation and Separation

Upon receipt of any allegations of a HWE, a club must promptly (1) separate the interested parties and (2) conduct an investigation. The prompt separation of the interested parties ensures a cessation of the alleged harassment and thereby mitigates damages. The investigation, allows the club to understand what in fact occurred - if anything at all.

Last Thoughts

Club managers must keep their thumbs on the pulse of their teams. Conducting player surveys, even exit-interviews for departing players, can provide invaluable information regarding the culture of a team. Clubs must track player well-being and any observations from players. It is not enough for a club to say “oh that’s just how the coach is.” Clubs must have a concrete understanding of the threshold between tough coach and harasser.