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2011 Jotwell: J. Things We Like [1] (2011)

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Does the NBA's Dress Code Violate Title VII?
D. Aaron Lacy, Represent: Hip Hop Culture, the NBA Dress Code, and Employment Discrimination (2010),
available at SSRN.

Joseph Slater

Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird
were white he would be considered just another player. Pistons star Isiah Thomas was dragooned into
explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a
superstar, Thomas made the broader point that race mattered in perceptions of NBA players. White players
were labeled smart and hardworking, black players were naturally talented. Later in that same Finals series
I heard a broadcaster describe a Lakers lineup (of all black players) as thoroughbreds.

Race has long been significant in sports, today perhaps nowhere as much as in the NBA. Yet discrimination
scholars have largely overlooked this fertile field. Stepping into the breach, D. Aaron Lacy has written a
provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress

Lacy stresses that hip hop culture is central to NBA marketing and corporate tie-ins (e.g., dancers and music
during games, and an NBA-licensed video game emphasizing hip hop culture). Dress has been part of that,
from Air Jordan sneakers, to baggy shorts, to bling. Yet since 2005, the NBA has imposed a dress code on
its players that generally requires business casual clothes even when off-duty, and specifically bars various
indicia of hip hop culture. The racial overtones in both marketing hip hop in some contexts and being wary of
players seeming to be too involved with it are obvious.

Lacy ties this to the broader issue of employer policies on appearance and conduct outside the workplace,
arguing that such rules can violate Title VII's disparate impact doctrine. Employers have legitimate interests:
highly controversial acts may reflect on the employer's reputation or perceived position on a topic. But such
policies can also interfere with cultural expression in private life, including cultural expressions closely tied to
race. Lacy critiques cases that reject Title VII challenges to appearance policies (on clothes, grooming, etc.),
and he proposes a new Title VII analysis for such employer policies that govern off-duty conduct.

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