The potential to discriminate is not confined to the walls of any business – it can extend to hiring practices as well. If neglected by ethics and compliance teams, companies might find themselves in a position similar to the NFL, which faces a lawsuit from former Dolphins head coach Brian Flores.
A lawsuit over whether the NFL discriminates against Black candidates when hiring coaches has some lessons in it for every business.
While a dispute over high-profile coaching jobs may seem worlds away from the average worker’s problems, the legal principles are the same. Former Miami Dolphins head coach Brian Flores has sued the football league in a landmark lawsuit alleging racial discrimination in the hiring of top coaching positions.
Flores isn’t just suing for himself, either. In the 58-page filing, his lawyers are seeking class-action status, which would mean that any minority who had been discriminated against as they were passed over for a coaching job could receive damages if the lawsuit is successful.
The lawsuit is a good reminder that businesses aren’t just open to legal action by their own employees but also applicants for jobs who are protected by anti-discrimination laws that typically cover race, age, gender and religion, among other things.
Here’s a look at what all businesses can learn from the NFL’s recent legal troubles.
1. The Damage to Your Reputation Starts Early
It’s still early in the legal process, so it’s not clear how far Flores’ lawsuit will make it. But for the NFL, as with other employers, the damage is already being done.
Members of the public are hearing about the claims made in the lawsuit now, which can be especially damaging if you are a consumer-oriented business. Even if the suit ends up dismissed, your customers may not realize it, or they may believe the case was dismissed unfairly.
2. Get Ready for Your Internal Communications to Go Public
The next phase of the Flores’ suit should strike terror into the NFL lawyers’ hearts: discovery. In this part of a lawsuit, opposing lawyers are allowed to sift through emails, text messages and other company documents in search of evidence that management knew about discrimination or condoned it. The most damaging emails can end up becoming public, either through a legal filing or a strategic leak.
If you want to know how badly this can turn out, look at John Gruden, who resigned as the Las Vegas Raider’s head coach in the middle of the last season due to racist comments made in emails he sent to the Washington football team, which was being investigated by the NFL for a different issue.
3. Avoid Retaliation
The NFL seems to be avoiding the next biggest pitfall facing businesses accused of discrimination: retaliation. When the Pittsburgh Steelers — the one NFL team with a Black head coach — announced that it had hired Flores as an assistant coach, that undercut any claims of retaliation he might have made.
If someone complains about unlawful discrimination, under federal and most states’ laws, you cannot retaliate, such as refusing to hire them for another position (if they are a job applicant); or changing their work schedule, title, responsibilities, or compensation because of the complaint. Retaliation isn’t just morally wrong, it’s also strategically dumb. Discrimination is often hard to prove and juries may be swayed by their complex feelings on subjects like race, but retaliation is far easier to prove and nobody likes it.
4. Win or Lose, Get Ready to Pay
Class-action lawsuits are also very dangerous and expensive for businesses that face them. Defense in these cases can be very costly because it typically starts with discovery of broad areas of company interactions, not just of the lead plaintiff, but possibly including 20 to 30 other workers — or even as many as 500. That’s a lot of emails, text messages and other correspondence to sort through.
On top of those troubles, a business facing claims of discrimination could also find itself under investigation by the Equal Employment Opportunity Commission or a similar state agency. That could lead to even more financial penalties.
5. The Only Way to Win Is to Not Play
Even if the NFL — or any other business — prevails in the legal case in the end, it could find that it’s lost in the court of public opinion, harmed its reputation with potential customers, seen damaging internal communications made public, and paid heavy legal fees to defend itself. And if it loses? You can add a costly financial settlement, the plaintiff’s legal fees (which a court can order it to pay) and federal fines to the mix.
The lesson for businesses is clear: Avoid anti-discrimination lawsuits. The best way to do that is to make sure that your internal processes are clear, that your workforce is diverse and that you act quickly when you learn that an employee may be engaging in discriminatory behavior.
The bottom line? The best way to ensure that your business doesn’t face a case like this is to ensure that it doesn’t discriminate in the first place.
Peter J. Glennon founded 
