4 employment law lessons from the Olympic Village

Watching the Opening Ceremonies of the Olympics, I reflected on the pageantry, the stories of personal triumph over adversity, and, of course, the employment law issues. Yes, it’s plain to see (at least for any employment lawyer) that the Olympics are a flaming cauldron of employment law issues.

Let’s go to the venues for a closer look at these simmering employment law issues:

The tennis venue and ADA accommodations

In June 2021, tennis star Naomi Osaka declined to participate in press conferences at the French Open to exercise “self-care.” Facing backlash from tournament officials, Osaka soon withdrew from the French Open all together indicating that she would “take some time” away from the tennis court to deal with mental health issues. After its initial fault, organized tennis appears to recognize the need to work with Osaka to find ways to accommodate her. Following a brief break, Osaka is now back on the Olympic tennis court feeling as she reports, “refreshed” and “happy again.”

What lessons can employers learn at this venue?

Employers generally understand that the Americans with Disabilities Act requires employers to engage in the interactive process to identify reasonable accommodations for qualified employees with disabilities. Sometimes those accommodations are modifications to the workplace, and sometimes a reasonable accommodation may be a leave of absence. While accommodation requests for mental health issues are on the rise, the lack of obvious physical symptoms leaves some employers skeptical of accommodation requests for anxiety, depression, and other mental health issues.

Whether a disability is a chronic physical illness or a mental health condition, employers can ace the accommodation process by having open lines of communications with employees and maintaining a well-established practice for evaluating requests for accommodations.

With reasonable accommodations, there is a good chance that an employee can stay on the job or return to work ready for a medal-worthy performance.

The track venue and substance abuse policies

The Olympics – and employers across the country – are struggling with the fallout of laws that make use of recreational marijuana legal, but workplace policies (and Olympic rules) that make being under the influence impermissible.

The situation of U.S. sprinter, Sha’Carri Richardson, highlights the dilemma. Richardson won the women’s 100-meter race at the U.S. track and field trials in June 2021, but she was automatically disqualified when a drug test came back positive for marijuana. Richardson met, and maybe even exceeded, the expectations of the job, but she violated U.S. track and field rules and Olympic doping standards and suffered the consequences. In employment terminology, she lost the job.

What lessons can employers learn at this venue?

With recreational marijuana legal in 18 states, employers understand this situation all too well – employees who appear ready, willing and able to fill open positions, but who also can’t pass a pre-employment drug test. With the tight labor market, employers are beginning to re-think pre-employment drug testing.

What should employers consider in reevaluating drug testing practices? Drug testing is certainly one critical component of a workplace safety program. Employers should understand applicable federal and state requirements as well as the safety sensitive nature of certain jobs. At the same time, it is also reasonable to consider other options or modifications to existing drug testing practices. Recognizing the cultural, political, and legal shifts taking place, a growing number of employers are taking a modified approach to pre-employment marijuana testing that puts the emphasis on conduct and safety during employment, rather than pre-employment activity.

Maternity leave and the track venue

Another employment law issue playing out at the track venue involves pregnancy and maternity leave. In May 2019, runner Allyson Felix criticized her then-employer’s policy of pay reductions for pregnant and post-natal athletes. Felix’s employer happened to be Nike. Felix commented on her Instragram account: “During my pregnancy, I faced a gender injustice that I couldn't run away from. My employer did not support my maternity and my colleague’s maternity in a way that I could be proud of.”

Since that time, Nike has changed its maternity leave practices expanding pregnancy benefit and modifying performance requirements. Felix, nonetheless, left Nike, first going with Athleta and then starting her own brand. Now a mother to two, Felix is a member of her fifth Olympic team in Tokyo.

What lessons can employers learn at this venue?

Employers should take notice that across the country states and localities are implementing laws enhancing protections for pregnant employees. Thirty-one states and four cities have passed laws requiring covered employers to provide reasonable accommodations to pregnant workers.

In May 2021, the U.S. House passed the Pregnant Workers Fairness Act. This legislation would require employers to reasonably accommodate workers and job applicants who need accommodations due to pregnancy, childbirth and related medical conditions.

With or without federal legislation, reasonably accommodating pregnant employees so they can excel at their jobs is a best practice in the short and the long run.

Equal pay and the soccer venue

In 2019, the U.S. Women’s National Soccer Team, one of the most successful teams in the country, sued its employer, the U.S. Soccer Federation, alleging violation of the Equal Pay Act and pay discrimination based on sex. The allegations are straightforward. The team claims that the Women’s National Team is paid less per game than the Men’s National Team and that available bonuses are less than those available to the men.

The history of the case has many twists and turns with a federal court dismissing the bulk of the Team’s claims in May 2020. As if on cue, on the opening day of the 2021 Olympics, the Women’s Team appealed the lower court’s dismissal of their equal pay claims. The case will now be heard by the Ninth U.S. Circuit Court of Appeals.

What lessons can employers learn from this venue?

As on the soccer field, the march for pay equity is happening across the country. States and localities are leading the way with legislation that requires reporting of pay to state agencies and other practices intended to level the playing field. Pay equity initiatives are a priority for the Biden Administration, which means enforcement agencies such as the EEOC and the OFCCP will be sharpening their focus as well.

For employers, the next steps are certainly easier than taking a header. Review pay data rigorously to detect possible systemic and unintentional practices that result in disparate pay for men and women and, if detected, modify those practices. That’s it, just do it.

The world of work and the world of sports share similar struggles finding the right balance between demanding hard work and achieving excellence. In both venues, understanding the rules is critical to success, but so is a willingness to work to change the rules when circumstances require it.

The McDonald Hopkins Labor & Employment Law Team will continue to keep employers updated on employment law issues – wherever we find them. Please contact your McDonald Hopkins employment lawyer with any questions.