The sports industry has been a part of the American culture, workplace and even jurisprudence for decades if not centuries. Over the years, the interaction between sports and employment law has changed. As the sports industry continues to expand into other areas, including mobile sports betting, we expect sports related employment law issues to evolve—including potential claims of gambling related disability discrimination. The intersection of sports in the workplace has taken dynamic iterations over the years. This article will explore the impact of sports related employment jurisprudence developments and identify the latest issue facing employers in the workplace—mobile betting and its potential implications under the Americans With Disabilities Act (ADA).
In 1990, the U.S. District Court for the Southern District of New York (SDNY) decided Equal Employment Opportunity Commission, and Enid Roth, Plaintiff-Intervenor v. National Broadcasting Co., 753 F. Supp. 452 (SDNY 1990). Roth chronicles a lengthy history of claims brought against NBC which initially began as a class action brought by “all women who were employees of NBC,” in which the Equal Employment Opportunity Commission (EEOC) was permitted to intervene as a plaintiff. The plaintiffs in Women’s Comm. for Equal Employment Opportunity (WC=EO) v. NBC, 71 F.R.D. 666 (SDNY 1976) alleged defendants discriminated against women in hiring, job placement, pay, promotions and related conditions of employment. Women’s Comm., 71 F.R.D. at 668. The Women’s Comm. matter ultimately resulted in a consent decree which, inter alia, settled the sex discrimination claims and established “utilization goals” for women to be achieved at NBC by 1982. Roth, 753 F. Supp. at 454.
Following the consent decree in Women’s Comm., Roth filed a claim with the EEOC alleging she was denied a Sports Director position based on sex. Roth, 753 F. Supp. at 454-55. After investigation and the EEOC finding “Reasonable Cause” to believe the NBC sports department discriminated against Roth based on sex, the EEOC and Roth filed a federal lawsuit against NBC. The matter proceeded to a bench trial before Judge Sweet who issued a decision finding the sports director position at issue required intimate knowledge of sports. Although NBC offered Roth multiple opportunities to showcase her abilities supervisors, her reviews fell short of NBC’s criteria for Sports Director. Ultimately, Judge Sweet held the “decision not to hire Roth was based upon her lack of background and knowledge in sports and her performance during the observation period.” Roth, 753 F. Supp. at 465.
In 1998, the U.S. District Court for the Eastern District of New York presided over Perdue v. City Univ. of New York, 13 F. Supp. 2d 326 (EDNY 1998). In Perdue, a former women’s basketball coach and women’s sports administrator, filed an action against the university, alleging gender discrimination in violation of Title VII and violations of the Equal Pay Act (EPA). Specifically, Perdue claimed she was denied equal pay, was provided inequitable employment conditions and was subjected to slurs based on her sex. Perdue, 13 F. Supp. 2d 330-37. The matter proceeded to trial where the jury returned a verdict in favor of the plaintiff on her intentional discrimination and EPA claims, and awarded damages. Perdue, was able to establish she had nearly identical coaching and administrative duties as her male comparators, but was not treated the same. Id. at 334. Perdue was also able to establish sex was a motivating factor for defendant City University of New York’s decision on compensation, terms, conditions and/or privileges of employment (e.g., the men’s basketball coach had two offices, while Perdue had just one, which was similar to a “broom closet.”) Id. at. 335-36.
Also in 1998, the SDNY decided Garrison v. Bloomberg, 1998 WL 30271 (SDNY Jan. 28, 1998). In Garrison, the plaintiff—a Japanese American female—claimed her employer discriminated against her based on sex, national origin and pregnancy, in violation of Title VII, the New York Executive Law §296 and the New York City Administrative Code §8-107. Concerning sports, plaintiff alleged her “manager took male sales representatives out for drinks at sports bars or to male-oriented sports activities.” Garrison, 1998 WL 30271 at *2. Ultimately, Judge Patterson granted defendants’ motion to dismiss based on plaintiff’s failure to provide any allegation of fact giving rise to an inference that plaintiff was “excluded from such events due to her sex or due to her ancestry.” Id.
More recently, in 2021, the SDNY decided Roenick v. Flood, 2021 WL 2355108 (SDNY June 9, 2021). Roenick involved former National Hockey League player Jeremey Roenick. After his playing career ended, Roenick became a studio analyst for NBC Sports. While appearing on an unrelated podcast for Barstool Sports, Roenick made “sexually explicit comments” about his coworker at NBC Sports. Roenick, 2021 WL 2355108 at *2. NBC Sports ultimately terminated Roenick’s employment as a result of these comments. Roenick sued claiming, in part, that his termination was discriminatory based on sex (heterosexual male) pursuant to the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). Although Judge Cronan granted a large portion of defendants’ motion to dismiss (based on Roenick’s inability to show he was treated differently than similarly situated NBC employees), the matter continued to discovery on Roenick’s retaliation and breach of contract claims (his termination occurred soon after he complained to his supervisor regarding the way his NBC colleague was treated due to her sex).
Roth, Perdue, Garrison and Roenick concerned traditional labor and employment claims, such as: failure to promote; discrimination; retaliation; misogynistic treatment; and sexually explicit comments to a co-worker. However, Roenick provides us with a glimpse into the future by presenting an example of an employment claim premised on an employee’s sports related internet-based activity. More specifically, Roenick concerns content which is likely obtained through use of an “app.” Apps now provide a new dimension to workplace litigation of which employers must be aware, as certain apps (e.g., gambling apps) may present potential legal issues.
New York mobile sports betting became legal in January 2022, with nine approved sportsbooks—selected by the New York State Gambling Commission. See NY RAC PARI-M §1367-a. Almost immediately thereafter, New York State became the number one market for mobile gambling. In fact, the figures released by the New York State Gaming Commission show that mobile sports wagers exceeded $1.6 billion in New York between its launch on Jan. 9 and the week ending Jan. 30.
Likely contributing to this enormous revenue, is the remarkable ease with which an individual can place a bet directly from their cell phone. Employers concern over productivity based on an employee’s ability to discreetly place bets, and monitor the status of same while at work, is not the only issue employers should consider. Given the sheer number of individuals who now place bets via a sportsbook app, it is only a matter of time until an employee seeks a workplace accommodation based on a sports gambling addiction—or files a discrimination suit (either individually, or as a class) based on a failure to accommodate.
Gambling addiction has been recognized in this country for decades. In fact, Gamblers Anonymous has been in existence since 1957. However, the ADA specifically excludes from the definition of disability “Compulsive Gambling.” See 42 U.S.C.A. §12211. Of course, even if the ADA does not cover compulsive gambling, it likely will cover potentially related conditions (e.g., depression). Therefore, employers should be careful when assessing an accommodation request to determine upon what purported disabilities the employee is seeking assistance.
Employers should also be aware, that although courts interpreting the NYSHRL may apply the same legal standards as those applied to federal ADA claims See, e.g., (Newton v. Whole Foods Mkt., 2022 WL 4619111, *5 (SDNY Sept. 30, 2022), that may not always be the case. See Weekes v. JetBlue Airways, 2022 WL 4291371, *8 (EDNY Sept. 16, 2022) (holding “the standard for pleading a disability discrimination claim under the NYSHRL and NYCHRL is more lenient than the ADA standard.”). Finally, larger employers should also take note that disability-based class actions could result should they discriminate against employees with gambling related disabilities. See Westchester Indep. Living Ctr. v. State Univ. of New York, Purchase Coll., 331 F.R.D. 279, 301 (granting class action status based on plaintiffs’ alleged disability discrimination).
As detailed above, sports related employer exposure has changed dramatically in the last several decades, and mobile sports gambling— although in existence to provide entertainment—appears to present several additional and new potential areas of concern for employers. Many of these concerns are not apparent on their face and will take time to be addressed by the courts. In the interim, employers would be wise to consider the above topics to avoid any missteps in what we expect will be a new era of potential sports related lawsuits.
Reprinted with permission from the New York Law Journal, An ALM Publication