A Native American claimed that Washington Redskins chatter at work was racist. But, can she win her lawsuit?

The Washington Redskins are a bad National Football League franchise.

I’m not talking about the name of the team yet. We’ll get to that.

I’m mean last year’s 7-9 Washington Redskins. Like fans of the Dallas Cowboys, the tell-tale sign of Redskins fans is their depressing nostalgia for when the team was competitive and won a few Super Bowl rings a hecka-long time ago. Let’s face it. It’s been a dismal few decades for this poor excuse for a football team since Daniel Snyder purchased the franchise in 1999. They have just six winning seasons since then.

Another way to spot a shameless Washington Redskins fan in public is in team merch with the polarizing name and mascot. For many years, there has been controversy over the Washington Redskins name and logo. To many football fans, “Washington Redskins” just rolls off the shoulders. To others — especially Native Americans — “Washington Redskins” is considered derogatory and racist.

What happens when a Native American employee in Washington, DC is surrounded by Washington Redskins paraphernalia in the office and co-workers discussing the team at work?

Those are basically the facts of Tallbear v. Perry (opinion here). The plaintiff, who identifies as Native American,  claimed that the U.S. Department of Energy racially discriminated against her by allowing other employees:

•  to engage in  “causal and widespread” discussions of  the Washington Redskins football team,
• to wear Redskins apparel,  and
• to permit the display of “posters placed in common areas by DOE employees.”

On one particular occasion, a DOE attorney left a “Redskins Special” flyer from Subway—the sandwich shop—on the plaintiff’s desk.

Among other things, the plaintiff alleged a hostile work environment.

Can Washington Redskins talk and imagery create a hostile work environment under Title VII of the Civil Rights Act of 1964 for a Native American employee?

Now, I think that I know what you’re thinking, “Eric, it’s not as if they were calling her a ‘Redskin.’ That would be inappropriate. And while I can understand why the term ‘Redskin’ would offend the plaintiff, how can a Washington, DC employer prohibit its employees from talking about the local sports team?”

And I’d say that you nailed it. Here’s more from the opinion:

[Plaintiff’s] charge of discrimination—that she was present when the Redskins name was repeatedly referred to and when Redskins symbols were visible in the workplace, does not meet [create a hostile work environment]. The Court accepts at face value [plantiff’s] claim that the use of the Redskins name is deeply hurtful to her….Indeed, the question whether “Redskins” and similar team nicknames are offensive racial slurs is a matter of current public controversy….However, Title VII does not require the country’s employers to stand aggressively on one side of that public debate by banning employees from referring to their local professional football team by name in the workplace.

It would be different had [plaintiff’s] supervisors or coworkers directed their use of the Redskins term at [her] in a derisive manner. For example, had DOE employees disparagingly called [plaintiff] a “Redskin” with enough regularity to create “an environment that a reasonable person would find hostile or abusive,” [plaintiff] could have a Title VII claim. 

So, the plaintiff has no hostile work environment claim.

Now, some of you real smart ones may also be thinking, “Eric, if the plaintiff complained to a supervisor about co-workers talking about the Washington Redskins, would the plaintiff have a retaliation claim if her employer later disciplined her?”

Indeed, she would.

Indeed, she does. The plaintiff’s retaliation claims survived a motion to dismiss.

Remember that when an employee complains about discrimination at work, all that employee needs is a good-faith belief that what he or she is complaining about is discrimination. Thus, if an employer were to discipline that employee for complaining, then there’s a viable retaliation claim.