Tough Coach or Hostile Work Environment

“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 “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 to the club (aka- 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 becuase 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. Soccer skill is not a protected class under Title VII. We’ll look at some hypotheticals a bit later on.

ELEMENT #2:

The discrmination was severe or pervasive,

NOTE: The law does not protect employees (players) against coaches/supervisors who are jerks. Unfortunately, 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 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 agressions 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 the every day agressions 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 when one severe action could be seen as creating a HWE. It has been discussed that, “…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.” Should a coach behave 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 HWE.

  • Whether it unreasonably interferes with an employee’s work performance.

ELEMENT #3:

The Discrimination detrimentally affected the Player.

The Player must demonstrate the the harassment has affected their ability to perform their job (play).

ELEMENT #4:

The discrimination would detrimentally affect a reasonable persion in like circumstances, and

ELEMENT #5:

The existence of “respondeat superior” liability.

NOTE: What does this latin phrase mean? Its stands for the notion that the employer (club) can be subject to liability for the HWE caused by a Supervisor. As explained below, there is sound argument that a coach is in fact a supervisor, thereby putting the Club on the hook for the Coach’s actions.

Coach as a Supervisor

The first logical question…”Is a Coach a Supervisor?” As with anything in the law, 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, reassingment with significantly different responsiblities, 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 get through a motion to dismiss. In other words, if a player were to bring a cause of action alleging that the Coach was her supervisor, the likelihood of the complaint getting dismissed at the initial stage, would be low. After all, the coach has much authority on the every day working life of the player.

It is worth noting, even if the 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 touch 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 ocassion 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 embarassment to football.

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

With that being said, Coach Trunchbull’s act of punching a wall would most likely need to 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 an out 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 ocassion 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 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 occassions, Coach Trunchull kicked over the water jug while saying “$%^& ^ Catholics.”

    • One time, Coach Trunchbull punched wall in the locker room after screaming at Sally Striker telling her she is an embarassment 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 reasoanble care to prevent and correct promptly any harassing behavior, AND;

  • Plaintiff unreasonably failed to take adavantage 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 such HWE claims. The most prepared Clubs will have the 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 it will also (2) allow the Club to put forth a defense in response to any such claims. If a Club does 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:

  • Training

    Conduct workplace training for all employees, both on-the-pitch and off-the-pitch. This way, everyone understands what consistutes a HWE. Clubs will have the 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 enfironment. Even more, the policy must include a step-by-step explanation of how an employee can notify the Club of such harassment.

    A solicy

  • 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, the Club must promptly (1) separate the intersted 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 the Club to understand what in fact occurred- if anything at all.

Last Thoughts

Club management must keep their thumb on the pulse of their team. Coducting 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.” Club must have a concrete understanding of the threshold between tough coach, and harasser.

Susie Cirilli