Diversity Is Not Discrimination, Unless It Is

Law student sues Chicago Bears over “Legal Diversity Fellow” role

by Christopher Deubert

at Constangy, Brooks, Smith & Prophete, LLP

There’s a flag on the play.

Professional sports is merit-based. Their highly competitive nature requires teams to retain only the most highly skilled players. Failure to do so will be apparent in the team’s win-loss record.  A new lawsuit from Jonathan Bresser, a student at DePaul University College of Law in Chicago, against the Chicago Bears challenges whether teams are following the same merit-based principles off the field as on.

Diversity and the NFL workplace

The majority of pro football players have been Black, but the same has not been true among coaches, executives, and other team personnel. Since 2003, the National Football League has enforced various forms of the “Rooney Rule,” which seeks to increase diversity in the coaching ranks by requiring teams to interview minority candidates. The Rule has had mixed success and was the subject of a recent complaint to the U.S. Equal Employment Opportunity Commission from America First Legal, an organization directed by former staffers from the Trump Administration. At the same time, Brian Flores, a Black coach, has an ongoing lawsuit against the NFL and various clubs alleging that their hiring practices are discriminatory.

Obtaining any job in sports is difficult due to the high demand for such positions. A variety of structural and socioeconomic factors would support the position that white candidates generally have an advantage over minority candidates. Most notably, entry-level positions in sports are commonly unpaid. Many can afford this investment in exchange for a lucrative career in professional sports, but many minority candidates cannot.

Finally, the racial make-up of lawyers is relevant. According to the American Bar Association, 14.1 percent of lawyers are non-white and 37 percent are women, both numbers being well below their proportions in the general population.

The Bears’ fellowship

Presumably with these challenges in mind, in the fall of 2023, the Bears posted a job posting for a “Legal Diversity Fellow.” The Fellow was to be a student from a local law school who would have the chance to work with the team over the summer performing a variety of legal tasks standard to such internships. In addition, the Fellow would “have the opportunity to work with the Club’s Diversity Equity & Inclusion (DEI) department on a variety of the Club’s DEI goals, initiatives and priorities.”

So far so good. But under “Qualifications,” the Bears said the Fellow must be a “[p]erson of color and/or female law student.”

Jonathan Bresser applies

In November 2023, Jonathan Bresser – who is white – applied for the fellowship. His cover letter said that his more than two years as a litigation paralegal at Trent Law Firm, P.C., made him well qualified for the role. He also emphasized his experience with and commitment to diversity.

On January 5, Mr. Bresser received an email from the Bears advising him that his application had been rejected. The stated reason for the rejection was that the Bears had “chosen to pursued other applicants whose experience and qualifications more closely match our needs.”

This week, represented by the law firm at which he works, Mr. Bresser filed suit in an Illinois federal court, alleging that the Bears and several of its employees violated Title VII of the Civil Rights Act and its Illinois equivalent by not hiring him because he is a white male.

On its face, Mr. Bresser’s claim is compelling. Title VII prohibits employment discrimination on the basis of race, color, religion, national origin, or sex. The U.S. Supreme Court has recognized very limited exceptions to these strict prohibitions, permitting employers to adopt “voluntary affirmative action plans” where (1) preferences are intended to “eliminate manifest racial imbalance in traditionally segregated job categories”; (2) the rights of non-minority employees are “not unnecessarily trammeled”; and (3) the preferences are temporary in duration. Otherwise, absent very unique circumstances, protected characteristics cannot be the basis for making employment decisions.

The Bears’ fellowship would not qualify as a voluntary affirmative action plan. These plans have historically been directed toward large, often blue-collar, workforces.

To prevail in his lawsuit, Mr. Bresser will have to prove that his race and sex were more likely than not to be motivating factors in the Bears’ decision to reject his application. Claims of race or sex discrimination are best defeated by showing that the employer had legitimate, non-discriminatory reasons for the action it took.

Because the lawsuit was just filed this week, the Bears have not yet had a chance to respond. They may argue that Mr. Bresser’s race and sex were not considered when the club made the decision not to hire him for the fellowship.

The Bears may also argue that Mr. Bresser, while minimally qualified, was not the best candidate.  Judging from the resume that he attached to his complaint, Mr. Bresser’s work as a paralegal is his only legal experience. He has no experience in the sports industry. Because the sports industry is so competitive, there are almost always many highly qualified candidates for positions. Moreover, Chicago is home to several excellent law schools, and presumably there were very impressive candidates from some of these schools.

On the other hand, Mr. Bresser attached to his complaint a printout from LinkedIn showing that someone from the Bears viewed his profile – which contains his picture – shortly before his application was denied.  And, of course, the Bears’ express statement that only minority or female candidates were eligible to be Fellows will certainly count in Mr. Bresser’s favor.

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The Bears’ fellowship program appears to be one among many that got out ahead of the law and is now facing a backlash. Given that Mr. Bresser’s non-speculative damages would be minimal, the club is likely to try to settle the case quickly to avoid potential liability for statutorily-required attorneys’ fees.

At the same time, the club should scrap race and sex as qualifications for any position. Instead, the club should consider requiring submission of “adversity statements,” in which applicants may discuss how race affected the applicant’s life, an approach okayed by the Supreme Court for college admissions. (However, what is acceptable for college admissions is not necessarily acceptable for employment because colleges and employers are governed by different anti-discrimination laws.) Another alternative would be to offer the program to candidates of any race or sex who are disadvantaged in some way or have overcome significant hardship. That would refocus the club’s hiring on merit while still taking into account the challenges of historically underprivileged candidates.