Like many people in their 20s, New Orleans Saints cheerleader Bailey Davis has an Instagram account. And according to NFL rules, she always made sure to keep her page private so only approved visitors could view her posts.
But when she posted a photo in a one-piece bodysuit 3 months ago, the Saints accused her of violating rules that prohibit cheerleaders from appearing nude, seminude or in lingerie. For this indiscretion, and other unfounded accusations of attending a party with Saints players Davis was fired.
Now Davis has filed a claim with the Equal Employment Opportunity Commission, (EEOC), which enforces civil rights laws. Her suit accuses the Saints of imposing two sets of rules — one for the team’s cheerleaders, who are all women, and another for its players, all men.
In the #MeToo era, the complaint seems like common sense, noting that rules for NFL cheerleaders reflect outdated and discriminatory views of women. It also comes at a moment when the NFL has already been in the spotlight for domestic violence and sexual harassment among players and league officials.
According to the Saints’ handbook for cheerleaders, the team requires cheerleaders to avoid contact with players, in person or online, even though players themselves are not penalized for pursuing contact with cheerleaders. The cheerleaders have to block players from following them on social media, and are prohibited from posting any photos of themselves wearing Saints gear (which keeps them from being able to market themselves). None of these rules apply to any of the players.
The requirements get even more bizarre when cheerleaders step out in public. They cannot dine in the same restaurant as players, or even speak with them. If a Saints cheerleader is already in a restaurant and a player comes in, she has to leave. There are nearly 2,000 players in the N.F.L., and many of them use pseudonyms on social media. And yet the cheerleaders have to somehow block each one individually, while players have no restrictions on who can follow them.
The NFL claims that its policies are designed to protect cheerleaders from players “preying” on them. In fact, it refers to the players as “predators.” However, it puts the entire burden on the women to keep the men away.
“If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders,” said Sara Blackwell, Davis’s lawyer. “The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”
The Saints are not the only team whose regulations have come under fire. The Buffalo Bills cheerleading squad was disbanded in the face of a wage lawsuit, the cheerleaders were told to do jumping jacks in tryouts to see if their flesh jiggled, and had to attend a golf tournament for sponsors where wealthy men paid cash to watch them do back flips in bikinis.
Meanwhile, Oakland Raiders cheerleaders settled a lawsuit over their wages and are now paid minimum wage and overtime. Members of squads from other teams have won settlements worth thousands of dollars after suing the Cincinnati Bengals, the Tampa Bay Buccaneers and the Jets, over poor pay and requirements that they pay for their own makeup, uniforms and transportation.
In past cases regarding unfair pay for the cheerleaders, the league was able to assert that cheerleaders were employees of individual teams rather than the league, so the N.F.L. was not culpable for any discrimination or wrongdoing.
However, the Davis case boils down to a fundamental league rule. The league’s personal policy, which pertains to all N.F.L. personnel, prohibits “any forms of unlawful discrimination in employment based on an individual’s race, color, religion, sex, national origin, age, disability or sexual orientation, regardless of whether it occurs in the workplace or in other N.F.L.-sponsored settings.”
Davis is making the case that she qualifies as “N.F.L. personnel” and that the rules for cheerleaders violate this policy because they only apply to women. Legal experts predict that she could prevail if the team is unable to show why women require more “protection” than men.
Davis is arguing that the restrictions go too far and that the Saints’ enforcement of them is overly penalizing.
“They’ve been told that anything beyond ‘hello’ and ‘great game’ is too personal,” said Lora Davis, Bailey Davis’s mother and a longtime choreographer for the squad, known as the Saintsations. “It’s considered fraternization to say anything beyond that.”
Davis also noted the double-standard of the team’s social media policy. “It bothers me that they tell me the players know who you are because you’re a pretty girl, you’re on the field with them all the time, but then it’s my fault because my Instagram was public,” Davis said.
Davis made her Instagram page private to prevent unauthorized people from viewing it. She later posted a photo of herself in a one-piece outfit. The team acquired a copy of the photo and told her that although the page was private, it still violated team rules regarding cheerleaders’ attire.
“Very poor judgement to post a picture like that especially considering our recent conversations about the rumors going around about u,” Ashley Deaton, the senior director of the Saintsations, wrote to Davis in a text message. “This does not help your case. I’d expect you to know better.”
Davis was fired four days later.
Saintsations can only work for the team for only four, after which they “age out.” Yet Davis will now be banned from working that fourth year, when she would have made $10.25 an hour, or $3 above the Louisiana state minimum wage in. In filing her discrimination case, she explains that she wants to help other cheerleaders by forcing the team to revise its rules so all employees — women and men — are treated equally.
“I’m doing this for them so they can do what they love and feel protected and empowered, and be a female athlete and not be pushed to the side and feeling unimportant,” Davis said.