Did US Soccer Call Up Jaelene Hinkle to Avoid Litigation?

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Jaelene Hinkle was called back into a US Women’s National Team camp last week. Given that Hinkle refused to play last year because she couldn’t accept wearing a rainbow pride jersey, many have seen the decision to bring her back as a betrayal of the US team’s supposed commitment to inclusion and equality. That this all happened so soon after the most recent month of pride only drove the point home further.

The ongoing conversations about this process are very important, and I encourage everyone to read some of the excellent articles on the subject, which I endorse wholeheartedly. However, in this piece, I want to focus attention on a narrower question: what is the potential legal liability here? And if any exists, does that explain the bizarre chain of events in the past week, in which Hinkle was called up, only to be left out of the group that will actually continue to the Tournament of Nations?

Let’s start by looking at what we actually know:

Last June, Hinkle was called up—after a fairly long hiatus away from the team—for a set of friendlies in Scandinavia. But once the pride uniforms were announced, she withdrew. Then, earlier this summer, she gave an interview to the 700 Club confirming what was already assumed: she had done so because she believed that wearing the pride uniform would violate her religious principles.

The critical questions: was US Soccer obligated to make accommodations for her religious beliefs? And were they legally permitted to blacklist her from future camps, if that is in fact what happened?

Title VII creates an obligation to accommodate sincerely held religious belief

The controlling rule here is Title VII of the 1964 Civil Rights Act. That law famously prohibits discrimination on the basis of race in employment, but also covers a number of protected categories. Specifically, it prohibits discrimination on the basis of religion.

Broadly, that means that an employee can’t be fired for their religious beliefs, but it also creates a wide range of narrower obligations on employers to provide reasonable accommodations for their religious employees. As with many such laws, the devil is in the details, and what counts as ‘reasonable’ is open to dispute. But over the decades since the law was passed, we’ve received a great deal of clarification by the Equal Employment Opportunity Commission (EEOC) and by federal courts.

Specifically, they’ve said that employers are obliged to accommodate religious beliefs “unless the accommodation would cause an undue hardship for the employer.”

In the athletic context, a general argument for uniform kits would likely constitute an insufficient defense against a claim for reasonable accommodation. For example, a devout Muslim player who wished to wear a hijab would likely have a strong case, absent decisive evidence that doing so would interfere with her ability to perform. Based on the same logic, Hinkle could argue that the pride uniform violated her religious beliefs and expect an alternative accommodation.

And while there are obvious differences between a hijab and a rainbow kit, the EEOC and the courts have both made clear that they don’t see policing the legitimacy of specific beliefs to be within their purview. So long as the belief is sincere, it receives this protection. In Hinkle’s case, while her belief may be misguided or even bigoted, there is no denying that it is sincerely held and religious in nature. Moreover, the courts have also been unwilling to litigate whether a given belief is an accurate reflection of their religious dogma. So the fact that other Christians on the team had no problem wearing the rainbow does not limit Hinkle’s rights of conscientious objection.

That said, there is extensive evidence supporting the right of employers to enforce uniform requirements over religious objections. For example, in Cooper v. Eugene School District, the Oregon Supreme Court found that the state could reasonably prevent a teacher from wearing religious dress while working, because the law served the purpose of promoting religious neutrality. In Goldman v. Weinberger, the US Supreme Court upheld the right of the military to impose uniform policies by prohibiting a Jewish Air Force officer from wearing a yarmulke. These cases dealt with exceptional circumstances—with public institutions striving to produce public goods—but courts have also found in favor of private employers simply looking to successfully promote their industry (see Cloutier v. Costco, Bhatia v. Chevron U.S.A., Inc., etc.).

All of these cases suggest that Hinkle would face an uphill battle asking for a religious accommodation, but this does not mean there is no chance. Nor does it mean that US Soccer ought to feel safe from potential litigation. While Hinkle might not win a hypothetical case, it wouldn’t be a slam dunk either way, and US Soccer might well find themselves on the hook for some kind of reasonable accommodation to the pride uniform.

US Soccer isn’t a normal employer, but that may not matter

Things get even messier when you consider the nature of the employment here, with US Soccer differing from normal employers in several potentially significant ways.

First, as a subsidiary member of FIFA—the international body governing global soccer rules—the US team is constrained by a system of rules that limit its options. And FIFA’s equipment regulations state that “The Colours used for numbering and naming purposes shall be the same for all outfield players of the same team” (IV.5.4). Given this, US Soccer cannot simply accommodate Hinkle by permitting her to wear a non-pride variant. While it is possible that they could be persuaded to waive this requirement, FIFA is hardly known for its responsiveness, and it seems likely they would simply instruct the US to abandon the pride uniforms entirely rather than create an exception.

Given these facts, it is difficult to determine what would count as a ‘reasonable accommodation.’ It’s hard to credit the idea that they should abandon the pride uniforms entirely, since these constitute an important revenue stream, not to mention a form of political speech. If a company’s message is subject to veto by a single religious objection, speech is not free. It’s conceivable that the US would at least need to demonstrate a good-faith effort to consult with the appropriate FIFA body for a religious exemption, though even here the reputational costs would not be insignificant.

Second, US Soccer is also an idiosyncratic entity in the manner of its employment. For the limited set of allocated players, the US national team is their employer. But for floaters like Hinkle, their employer remains their club team, while the national team effectively sub-contracts their services for specific engagements. For this reason, once Hinkle declined the invitation to camp last summer, one could argue that she ceased to be an employee of US Soccer. This would not end the legal question, however. Employers are bound by Title VII even for temporary or contracted workers, and if the triggering move for Hinkle’s initial departure was an illegal imposition on her religious beliefs, this would poison the entire process.

Even if Hinkle can’t force an exception, she may be able to win a claim of blacklisting

Given the facts described so far, Hinkle likely has no legal argument for eliminating pride kits, nor would she likely be able to force an exception to uniform policy when those pride kits are used. However, she may well have a cause of action if her conscientious refusal was treated as a reason to blacklist her entirely. Such action could credibly be interpreted as ‘retaliation’ for the expression of a religious belief.

Proving a blacklisting case would be difficult, but not impossible. A big part of the argument would rely on establishing that Hinkle’s omission is because of her religious objections, rather than simply being due to performance. Here, one might note that she was hardly a mainstay in the squad before all these events. Indeed, her callup last June which precipitated these events was her first in over a year. One could argue that the subsequent lack of call-ups was simply a return to normal–a question of form, not anything more complicated. This is, in fact, what Jill Ellis said last month:

But with all due respect to coach Ellis, this claim is hard to swallow. Hinkle is probably the best left back in the US pool at the moment, a point made clear by two consecutive excellent seasons in the NWSL. One could argue about how well club play translates to the national team environment, and it’s certainly plausible that she wouldn’t simply waltz into the starting XI. But considering the lack of depth at fullback and Hinkle’s excellent performances there for the last 18 months, it’s hard to believe that her exclusion has been driven by performance on the field.

One could argue that Hinkle turning down a call-up provides evidence of unreliability, which could discourage a coach from relying on her in the future. But if the basis for her refusal is a religious objection, the principles outlined above likely prohibit the national team from treating that as evidence of unreliability. Just as US Soccer is required to treat pregnancy as a legitimate reason for absence, and is obliged to give new consideration to any player post-pregnancy, they likely are required to treat Hinkle’s unwillingness to play in a rainbow kit as a justified sabbatical and evaluate her qualities independent of that knowledge.

Team chemistry does matter, but it’s not clear how much

However, this doesn’t settle the matter. Because soccer is a team game, and Hinkle’s presence might well affect team dynamics. After all, the national team squad contains several queer players (not to mention a queer coach), and plenty of others who have expressed strong sentiments in favor of equality. Introducing Hinkle into that environment could potentially be disruptive.

And this sort of ‘chemistry’ problem creates further legal wrinkles.  Consider Wilson v. US West Communications, in which Christine Wilson “made a religious vow or promise to God that she would wear a particular anti-abortion button” featuring a picture of an aborted fetus. The court accepted her right to describe this vow as religious in nature, and acknowledged that her employer was not permitted to forbid the action entirely. However, because the pin was creating significant distress for her coworkers, the court found that her employer could demand that she cover it up while at work. In this instance, the case for a hospitable work environment for all employees was balanced against Wilson’s right of religious expression.

How would this apply in the case of the US Women’s National Team? It’s hard to know for sure. However, it seems highly unlikely that US Soccer could credibly argue that Hinkle’s presence would constitute a severe disruption without making any further investigation. On questions of chemistry, the coaching staff may be able to offer expert speculation, but mere speculation probably does not provide a sufficient shield.

Does fear of litigation explain why Hinkle was called back, and then left out again? Quite possibly

I went into this topic assuming that the legal case for Hinkle’s return to the fold was unlikely. It seemed to me that coaching decisions are generally inscrutable, and that even vague gestures toward the value of team chemistry would be sufficient to protect US Soccer. After digging into the issue, I no longer find that as persuasive.

I do not think Hinkle would win a lawsuit, necessarily, but given the facts, it seems quite plausible that she could at least initiate proceedings. Whether any such conversations took place, I can’t possibly say. But it would not be surprising, given the facts, if the administrative arm of US Soccer insisted on her return, at least into the mix if not into the full squad. This could have been worked out directly with Hinkle, but may well have simply been a preemptive act to buttress their legal shield should litigation ever be enjoined.

If one wonders why the US called Hinkle back into camp, only to leave her behind once the tournament began, fear of litigation certainly would go some way toward providing an explanation.

Image courtesy of Corri Goates