NFL cheerleaders have to follow bizarre, sexist rules. But are they illegal?

New Orleans Saints cheerleaders are subject to ridiculous-seeming rules, according to a recent Equal Employment Opportunity Commission complaint filed by a cheerleader who was fired by the team.

While both players and cheerleaders are in theory subject to a “no fraternization” policy, the burden of avoiding contact falls entirely on the cheerleaders. To prevent contact via social media, cheerleaders are required to block all NFL players — not just members of the Saints, but all 2,000 NFL players, even those who post under pseudonyms. They must keep their accounts private and cannot show themselves posing in Saints attire.

To avoid in-person contacts in public, cheerleaders must leave a restaurant or a party if a player enters and must not enter if a player is already there. Any conversation beyond “hello” is a potential violation of the rules — for the cheerleaders, not the players.

To an outsider, the case might seem like a slam-dunk: These rules seem to be shot through with sexism. And Title VII, the federal anti–sex discrimination law, prohibits employers from taking an employee’s sex into account when hiring, firing, or setting the “terms and conditions” of employment.

But in this instance, disparate treatment is not enough to win the case. I certainly think she ought to win. But analyzing why the cheerleader in question, Bailey Davis, may face an uphill battle illustrates some of the challenges in creating equal opportunities for men and women — particularly in highly “gendered” professions. (The New York Times first reported on Bailey’s case, drawing on a non-public EEOC complaint.)

Cheerleading and playing pro football are indeed highly gendered jobs, to put it mildly. On the field, hypermasculinized men — highly paid celebrities — are paid to savage one another (and are sometimes embroiled in scandals off the field that involve sexual violence, or other kinds).

Cheerleaders, meanwhile, are hypersexualized women, whose dress, grooming, body type, and movements are designed to titillate a largely heterosexual male fan base. And these women, far more replaceable than the men, are paid a tiny fraction of what the players earn — sometimes only a few dollars an hour over minimum wage, while the average salary of an NFL player is more than $2 million.

The specific incident that led to Davis’s firing was her posting a photo of herself in a one-piece outfit on a private Instagram account, allegedly in violation of a team policy that banned nude, semi-nude, or lingerie pictures.

But that seemingly innocuous post was the culmination of a series of alleged, and contested, violations of the anti-fraternization rules. Davis was rumored to have been at a party that players also attended, for instance, which she denied.

The Saints have defended such policies by claiming that they are designed to protect the cheerleaders, called the “Saintsations,” from being preyed upon by the players. But who should be caged, the tiger or its prey? If a team is worried that the players cannot be trusted, why aren’t they the ones subject to restrictions on initiating contact with cheerleaders? Why put the entire burden on the women?

The job of cheerleader and that of football player are different, after all, with one being more competitive, and prestigious, than the other. Lower-valued employees are often subjected to burdens that higher-valued ones are spared. We would think nothing of a rule that dictated that an executive’s assistant must carry the executive’s briefcase, even if the assistants were mostly women and the executives mostly men.

Courts have even (wrongfully, in my view) recognized an exception for sex-specific dress and grooming codes as long as the requirements for one sex are not unduly more burdensome than those for the other. That exception dates to a period when judges couldn’t imagine that women might wear pants to work, or decline to wear high heels, but it has mysteriously reaffirmed in more modern cases.

So to win her case, Davis will have to show that the Saints’ rules are rooted not in the different employment roles of cheerleader and player, but in sexism. She’ll have to demonstrate that the team owners are stereotyping men as sexual aggressors and women as vulnerable victims, thus burdening women with the responsibility of avoiding predation.

The Saints will likely defend their practices by arguing that they are motivated by a gender-neutral concern: Scandal is bad for the league, and the team is choosing to impose the burden of avoidance on cheerleaders because they are less valuable to the franchise than the players, their individual contributions less unique. The fact that the rules happen to fall more harshly on women is not by design, but merely because virtually all cheerleaders happen to be women.

In short, if the jobs of “football player” and “cheerleader” were unequal in terms of status but otherwise were gender-neutral — or, at least, open to either sex — we might accept a degree of inequality in the policy’s effects if the policy was a “business necessity.”

These rules are “neutral” in legal-speak, in that they don’t expressly differentiate between men and women.

So does the Saints’ policy pass muster?

As we seek a legal answer, the first question we need to ask is: Are the jobs gender-neutral? Before you laugh, consider that the job of cheerleader at the college level often isn’t exclusively female. And women don’t seem to be formally banned from playing football for an NFL team. A current college player, Becca Longo, a placekicker, may be the one to break into the professional ranks.

The sport of football itself rewards physical traits, like brute size, that significantly favor men. But as long as NFL teams allow women like Longo to try out for the team, and evaluate them fairly, the lack of female players does not represent discrimination.

The situation for cheerleaders is much different, and potentially legally dubious. According to USA Today, the Baltimore Ravens and Indianapolis Colts have men who perform “stunts,” but two men recently hired by the LA Rams will be the first to dance the same routines as the women.

Certainly there are many men who can perform the skills necessary for that job, if that job is defined as rousing the crowd through enthusiastic gymnastic routines, yet none are hired by the Saints or most other teams.

If sued for hiring only female cheerleaders, a team owner would therefore have to defend the exclusion of men on grounds that cheerleaders are there primarily as sex objects. They’d have to argue that appealing to heterosexual men (or to women who like the female-cheerleader look) is the job. When Southwest Airlines famously made this argument in the early 1980s, defending a rule barring male flight attendants, it lost; but Playboy Clubs made the same argument and won.

If sexual enticement is the primary service provided, the employer can exclude one sex or the other from the job.

Where do cheerleaders fall on the spectrum? I suspect a male would-be cheerleader would have a good case if he sued a team that excluded men from the squad, and that judges would frown on the “cheerleaders must be hot women” line of argument.

Then again, Bailey Davis is not challenging the Saints’ refusal to hire men as cheerleaders, and she wouldn’t have standing to do so. What she objects to is the stereotyping inherent in the policies that cost her her job.

And it’s inescapable how deeply the job of NFL cheerleader traffics in the most archaic of sex stereotypes. That’s the key to analyzing her claim of discrimination. The Supreme Court held almost 30 years ago, in Price Waterhouse v. Hopkins (1989), that the application of sex stereotypes to employees — expecting a woman to behave and dress in a feminine manner, for example — is itself a form of sex discrimination.

The dress-and-grooming exception is an indefensible loophole in that rule, I believe. But the rules Davis is challenging go far beyond gendered, or even stereotyped, dress codes. Current Title VII doctrine should be sufficient to attack policies that regulate the off-field behavior of women in such dramatically different fashion and that draw so heavily on stereotypes of siren-like women, and on the idea that men’s pursuit of attractive women dare not be restrained.

Her case is all the stronger if her team is turning a blind eye to groping and other sexually aggressive behavior by fans.

Gender role policing can be as harmful to equal economic opportunity as formal policies of exclusion. And gender role policing is clearly what the NFL is doing.

On the field, cheerleaders are paid to entice and allure; off the field, they must do anything but. Men are to have run of the place — the stadium, the field, cyberspace, and public places — while women must know their place. That’s why Davis deserves to win her case, assuming it’s been described correctly by the Times.

The broader system that makes female hotness a job requirement for NFL cheerleaders? That may also be ripe for an attack, just not this time around.

Joanna L. Grossman is the Ellen K. Solender endowed chair in women and the law at SMU Dedman School of Law. Her most recent book is Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace. She is a regular columnist for Justia’s Verdict.

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