Is ESPN’s removal of broadcaster Robert Lee from doing a play-by-play broadcast in Charlottesville constitute discrimination?

September 9, 2017

The widely reported decision by ESPN to remove broadcaster Robert Lee, who is Asian, from doing the play-by-play broadcast of Virginia’s season-opening football game against William & Mary in Charlottesville received much criticism, with many wondering if such conduct by the sports network constitutes discrimination.

“There was never any concern — by anyone, at any level — that Robert Lee’s name would offend anyone watching the Charlottesville game,” ESPN’s president John Skipper said in a statement. “Among our Charlotte production staff there was a question as to whether — in these divisive times — Robert’s assignment might create a distraction, or even worse, expose him to social hectoring and trolling.”

If ESPN relied on customer preference, meaning it was concerned that the viewers might negatively view a person with the name Robert Lee to broadcast the game because of the similarity of his name to Confederate Gen. Robert E. Lee, whose statue created an uproar in Charlottesville, this decision-making could constitute illegal discrimination.

 Discrimination could be shown if  Lee could demonstrate the commonality of the name “Lee” in the Asian community and the disparate impact of such decision-making.

The law prohibits discrimination based on customer preference. The Equal Employment Opportunity Commission cites many cases where employers were found liable for discrimination based on perceived, or requested, customer preference.

For example, a hospital was found liable for posting a note advising nurses that no African-American nurse could treat an infant after a white father made the demand.

Home caregiving organizations cannot discriminate against staff whose patients who make a race-based preference request for caregivers.

Some employers falsely attempt to segregate employees based on its customer base, believing that its employees must “look like” their customers.

This occurred with Auto Zone who the EEOC said unjustly fired a man who refused to transfer after the company attempted to redistribute the non-Hispanic workers to another location in order to broaden the number of Hispanics at a location to better reflect its customer base. This decision discriminated against non-Hispanic workers.

Similarly, a pharmacy chain paid $20 million to settle allegations that it placed African-American managers and staff in neighborhoods predominantly occupied by African-Americans. The chain believed its motive – to increase hiring of African-American staff – was a good effort to promote diversity.

Employers must realize that discrimination of any form – for or against any race, gender or national origin, is discrimination.

There are some very limited scenarios known as Bona Fide Occupational Qualifications  whereby decision-making based on protected categories is legal.

For example, an airline that required pilots to stop flying at age 60 successfully provided medical evidence that individuals after age 60 are more likely to suffer from sudden incapacitation, and no medical test is available to identify those that are not susceptible. Therefore, pilots under the age of 60 was a legitimate BFOQ.

In addition, certain religious institutions can refuse to hire those who do not share their religious belief.

However, Southwest Airline lost its lawsuit when it refused to hire men for customer-facing positions. Southwest claimed that female sex appeal and femininity was a BFOQ because, at the time, Southwest said hiring attractive women promoted its public promise take passengers skyward with “love.”

It claimed that satisfying the interests of male passengers was critical to its financial success. The court held that the “essence” of the airline was not “love” but to provide safe transportation of its passengers and therefore any gender could perform the work.

If necessary, employers can require that applicants possess certain language skills (for instance, Spanish fluency) but should avoid only seeking “Hispanics” for Spanish-speaking jobs as many different national origins speak languages fluently.

Employers should base its hiring and decision-making on legitimate job-related business need, not real or perceived customer preference, stereotypes or misguided “diversity” initiatives that inevitably discriminate against another protected class.