RAQUEL LORET DE MOLA — What’s the essence of a NFL cheerleader’s job? Some may argue that they are meant to merely shake their hips, whip around their hair, and wear too much makeup. Others may argue that cheerleading is a competitive team sport in it of itself. Nevertheless, sex stereotyping is prevalent within NFL cheerleading teams, as evidenced by the Dallas Cowboys in CMT’s hit television show, Making the Team. Coaches are allowed to tell women that in order to “make the team” they need to lose weight by training harder and eating less and discussing ways to accentuate their femininity, likely including plastic surgery and other drastic measures. So how can this be legal? The law provides that there are certain situations where sex is reasonably related to a business or enterprise where it is considered a bona fide occupational qualification and thus, sex stereotyping is permissible. Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).
In Dothard, a high security Alabama prison had a policy of not hiring women for contact positions. Id. at 322. The court reasoned that 20% of the prisoners were sex offenders and they were mixed throughout the prison. Id. Moreover, these “special conditions” disqualified women from working in these types of jobs because they would antagonize sexual assaults, which they were more vulnerable to, and thus, woman would weaken the prison’s security. Id. The court held that when the very essence of the job is to maintain security, sexual discrimination is this context is allowed. Id. at 334.
In Diaz v. Pan American Airways, Inc., an airline had a policy of only hiring attractive, young, unmarried women as their flight attendants. 442 F.2d 385, 386 (5th Cir. 1971). When a man applied for the job and was denied because he failed to meet this sex stereotype, he brought suit against Pan American for sexual discrimination and won. Id. at 389. The court held that the essence of an airline’s business is air transportation safety and efficiency and thus, being an attractive female is irrelevant to that goal. Id.
Therefore, the NFL will likely be able to successfully dispute any suit challenging their policy of only hiring thin, flawless, beautiful women as their cheerleaders. Sex stereotyping could be found permissible by arguing that NFL cheerleaders aren’t really athletes in comparison to college football cheerleaders, for example. While NFL cheerleaders do not perform stunts or tumble, they do dance which can be considered physically challenging. However, this evidence is likely to be insufficient and unlikely to qualify this as a sport. Thus, if NFL cheerleaders are to be considered the equivalent of a model, than the NFL will not be found liable for sex stereotyping as long as sexuality and beauty continue to be the essence of their business.
