Legal Updates – June 2023

By:  Claire Sweetman

NFL Under Investigation for Allegations of Workplace Misconduct  

On May 4, 2023, the Attorneys General of California and New York announced a joint investigation into allegations of workplace discrimination at the NFL, including complaints of sex, racial, and age bias, sexual harassment, and a hostile work environment.[1] The decision to investigate was precipitated by a New York Times report[2] from February 2022 which detailed more than 30 former female employees concerns of gender discrimination and retaliation.[3] The organization, which has offices in New York and California, employs more than 1,000 individuals, 37% are women and 30% are people of color.[4] Unfortunately, the NFL is no stranger to lawsuits and allegations centered on employee discrimination and workplace wrongdoing, including the 2022 House Oversight Committee inquiry into Washington Commanders owner, Dan Snyder[5] and the 2022 class-action lawsuit filed by former Miami Dolphins head coach Brian Flores for alleged racial discrimination.

Following the New York Times report, in April 2022, New York Attorney General Letitia James led a coalition of six attorneys general in sending a letter to the NFL Commissioner Roger Goodell to call on the league to address the workplace inequity allegations.[6] At the time, the NFL stated that it “shares the commitment of the attorneys general to ensuring that all of our workplaces – including the league office and 32 clubs – are diverse, inclusive, and free from discrimination and harassment.”[7] NFL spokesperson Brian McCarthy said in April 2022 that the organization had “made great strides” over the years but that it had “more work to do.”

After a year of insufficient progress, the attorneys general announced on May 4, 2023, that they would be initiating an investigation into the claims: “Reports that the NFL has not taken sufficient effective steps to prevent discrimination, harassment, and retaliation from occurring in the workplace persist.” Subpoenas were issued that same day seeking relevant information relating to the claims. Attorney General James said in a statement, “No person should ever have to endure harassment, discrimination, or abuse in the workplace. No matter how powerful or influential, no institution is above the law, and we will ensure the NFL is held accountable.”[8]

Women in U.S. Workforce Reaches All-Time High

There are currently more women in the U.S. workforce than at any time in recent history.[9] According to the Wall Street Journal[10], women left the workforce at higher rates than men during the early stages of the COVID-19 pandemic, partially as a response to virtual school and decreased access to childcare. In January 2023, however, the number of women ages 25 to 54 in the workforce returned to pre-pandemic levels.[11]

A variety of factors contributed to the return of women to the workforce, including the availability of remote or hybrid work schedules, a strong labor market, high inflation, more Black women entering the workforce, and more women going into manufacturing.[12] Additionally, more women are choosing to start their own businesses more than ever. According to a World Economic Forum Study,[13] women made up 47% of U.S. entrepreneurs starting businesses in 2022, compared with 29% prior to the pandemic. Also, over the past year, Black women’s employment rate has risen 2.5 percentage points, bringing it to 61.1%.[14] This number has risen steadily since 2011, but took a harder hit than most groups during the pandemic, with higher rates of unemployment (particularly in essential services) and highest rates of death from COVID-19.[15]

According to the U.S. Department of Labor Blog,[16] the total number of women in the labor force is expected to continue to rise over the next eight years. This is driven by women over the age of 25, according to projections. The DOL projects that women ages 25 to 54 will add about 2.9 million more workers.

Congressional Lawmakers Disagree on Proposed Labor Reforms

Congressional lawmakers recently debated the National Labor Relations Board’s (NLRB’s) policy choices and legislative proposals that would impact employees’ union rights.[17] At a May 23, 2023 hearing with the U.S. House Committee on Education and the Workforce, members of Congress discussed a pro-union bill called the Richard L. Trumka Protecting the Right to Organize Act (PRO Act).[18] If passed, the bill will ensure the following:

  • Replace secret-ballot union elections with card-check elections.
  • Prohibit captive-audience meetings by employers to discuss union activity.
  • Prohibit employers from hiring permanent replacements for strikers during an economic strike. Employers already may not use permanent replacements during an unfair labor strike or during a lockout.
  • Streamline union election procedures.
  • Supersede state-level right-to-work laws that say workers can’t be required to join a union or pay union dues as a condition of the job.[19]

Lawmakers also discussed the Employee Rights Act, which, if enacted, would:

  • Emphasize that workers have a right to secret-ballot union elections.
  • Require written permission from workers before an employer shares their personal contact information with a union.
  • Prohibit unions from spending dues money on purposes not directly related to representation.[20]

The discussion was split along party lines – Democrats voiced concerns about employers’ union-busting activities while Republicans vocalized their perennial worry that unions become too powerful.

Union supporters such as Rep. Mark DeSaulnier (D-Calif) argued that reforms are needed due to the “slew of unfair labor practices by employers that take advantage of weakness in our federal labor law.”[21] Angela Thompson, general counsel for the Communications Workers of America, a labor union in Washington, D.C., said, “We should make the process of forming a union easier, not harder.[22] DeSaulnier also said: “Labor unions are our most effective tool to ensure that all workers, union and nonunion, have a voice in the workplace. Anyone who believes we can simply count on the good faith of every employer, particularly employers who are unscrupulous, to uphold their responsibility to workers is ignoring the reality that American workers face every day and is ignoring American history.”

Those who oppose the PRO Act claimed that the Act’s prohibition on employers discussing union issues at work violates employers’ free speech rights under the U.S. Constitution. Other opposers such as Rep. Tim Walberg (R-Mich) stated that card-check elections undermine the free choice of employees’, and “tilt the scales in favor of unions.” Aaron Solem, a staff attorney at the National Right to Work Legal Defense Foundation in Springfield, Va., said secret-ballot elections “protect against intimidation.”

The PRO Act bill passed in the House of Representatives by a vote of 225 to 206 on March 9, 2021. The bill has advanced to the U.S. Senate, where it awaits a vote. The Employee Rights Act was introduced in Congress on April 19, 2023.




[4] Id.



[7] Id.





[12] Id.



[15] Id.



[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.