Potential Legal Reasons For The Seattle Storm’s Investigation Of Coaches

The Seattle Storm has hired a law firm to investigate allegations that the team’s coaching staff engaged in harassing and bullying behavior toward players, according to the Chicago Sun-Times, citing an anonymous source. According to the report, the investigation was allegedly prompted by “multiple players’ experiences.” The team is presently led by head coach Noelle Quinn. Her assistants this past season included Pokey Chatman, Ebony Hoffman, and Perry Huang.

Precedent For The Storm’s Investigation

The Storm’s choice to retain outside counsel to investigate its own coaching staff in response to complaints of player harassment finds no recent precedent in the WNBA. When investigations have been conducted into allegations of workplace misconduct as of late, the league, rather than teams, has led the charge. In 2019, the WNBA opened an investigation after complaints surfaced that LA Sparks GM Penny Toler used profanity and racial slurs in a tirade against players. The team then quickly fired Toler, mooting the need for further investigation by the league. When former Las Vegas Aces player and current Los Angeles Sparks forward Dearica Hamby alleged that the Aces and head coach Becky Hammon discriminated against her due to her pregnancy in 2023, the WNBA retained two former prosecutors to investigate Hamby’s allegations. The Aces did not jointly conduct that investigation.

Comparatively, a handful of NBA teams have retained firms to investigate complaints of harassment and misconduct in the last several years, including the Sacramento Kings in 2019 when head coach Luke Walton was accused of sexually harassing a reporter, the Portland Trail Blazers in 2021 when GM and president of basketball operations Neil Olshey was allegedly hostile to workers, and the Boston Celtics in 2022 when head coach Ime Udoka was accused of violating team policies and mistreating a female subordinate. However, none of those incidents featured an investigation factually analogous to the Storm’s, i.e. one initiated by a team due to complaints of harassing conduct by coaches against players.

While lacking in immediate precedent in the league, the Storm’s approach to this situation is not unique in the employment context in general. There are several potential motivations and legal explanations behind an investigation of this nature.

Legal Motivations For Investigations Into Claims of Harassment

Employers frequently retain outside legal counsel to conduct investigations when accusations of misconduct are raised to provide a defense in the event litigation is commenced by the accuser. If a prompt and adequate investigation is not conducted under certain circumstances, an employer may face a heightened risk of being found liable for perpetuating a hostile work environment under applicable state and federal laws, including Title VII of the Civil Rights Act of 1964.

The WNBA is no stranger to defending state and federal claims relating to the failure to conduct adequate investigations of player mistreatment. Hamby raised a Title VII and related state law claim of this nature in her federal complaint alleging pregnancy discrimination against the Las Vegas Aces and the WNBA. Although styled as a retaliation claim rather than a hostile work environment claim, Hamby’s complaint alleges that the WNBA failed to properly investigate her claims of workplace mistreatment and issue appropriate remedies.

Under Title VII and its state counterpart effective in Seattle, the Washington Law Against Discrimination (WLAD), employers can be liable for harassing conduct if that conduct is motivated by protected classifications such as race, color, religion, sex, or disability. The legal standards that apply to investigations differ depending on whether the perpetrator is a supervisor or non-supervisory employee.

When it comes to non-supervisory employees, the United States District Court for the Western District of Washington (a federal court in Seattle) recently held in Copeland v. Graybar Electric Co., Inc. that “[a]n employer will be liable for creating a hostile work environment if it fails to take immediate and corrective action in response to a coworker’s or third party’s sexual harassment or racial discrimination the employer knew or should have known about.”

Courts have interpreted the obligation that an employer take “immediate and corrective action” to require employers to first investigate complaints of harassment, then issue appropriate remedial actions. An adequate investigation is legally construed as a key step in an employer’s response.

Where the accuser argues that a supervisor has engaged in harassing conduct, the need to undertake an investigation into claims remains just as legally significant. In the event a supervisor’s conduct is implicated, a pair of Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton provide that an employer can escape liability if two elements are met: it exercised “reasonable care” to prevent the harassing behavior and the employee failed to take advantage of opportunities provided by the employer to avoid further harm. The first element entails conducting a prompt investigation.

These legal parameters frequently lead employers to adopt workplace anti-discrimination and anti-harassment policies that set guidelines and requirements for conducting investigations in response to employee complaints of workplace misconduct.

The Storm confirmed to me that the organization has internal workplace policies. However, the team declined to comment on whether its policies have reporting procedures that can be invoked by players or if they require the team to conduct an internal probe upon receipt of player complaints of harassment or bullying.

The specific allegations that prompted the Storm’s investigation have not been publicly confirmed by the team, the league or any Storm players. If, however, the Storm received notice of allegations that the coaching staff, or even other players, engaged in any harassment or bullying that was potentially motivated by a protected classification, then an investigation could be legally required, mandated by internal workplace policies or could otherwise provide a defense down the line if the team is sued.

Prior to commencing litigation alleging harassment in violation of Title VII, a player must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC is then required to notify the accused of the charge within ten days.

A spokesperson for the Storm told me that the team has “not been notified of any complaint filed by a player with the EEOC,” and they won’t be commenting any further on the investigation at this time.

Employers May Conduct An Internal Probe To Determine Cause For Termination

On occasion, an employer may conduct an internal probe into complaints of workplace misconduct to ascertain whether there is cause to terminate an employee. This depends on the terms of the employee’s contract and whether that contract provides that an employee is at-will and can be terminated for any reason or can be terminated only for cause, meaning a specific reason often related to employee misconduct.

Contracts in college and professional coaching are frequently guaranteed. This means that teams must pay a terminated coach for the remainder of a contractual term or agree on buyout terms. However, contracts with cause provisions can allow teams to avoid paying a coach for the remainder of a contractual term in the event of a termination for cause. For example, when the University of Louisville terminated former men’s basketball coach Rick Pitino in 2017, it did so with cause and thus avoided paying Pitino, the then-highest paid coach in men’s college basketball, the remainder of his contract.

An investigation conducted by outside legal counsel can provide an impartial analysis to support an organization’s “cause” termination, particularly if the termination is later challenged in court or arbitration proceedings.

The details of WNBA coaching contracts are not public, and it is unknown whether any member of the Storm’s coaching staff has a contract with a cause provision. The WNBA has notably seen the most coaching turnover this offseason since the inception of the league. However, there has been no indication that the Storm is looking to part ways with Quinn, who signed a multi-year contract extension in 2023 notwithstanding the team’s 11-29 record that season. Although the team fell short in the playoffs this season, it finished 25-15 overall.

Investigations By Outside Counsel Provide Transparency

Setting aside the legal requirements, investigations conducted by independent legal counsel are also regarded as an industry best practice in professional sports because they tend to support the integrity and objectivity of the investigation’s ultimate findings, as well as the interests of the accused and the accuser. When an investigation is led by internal personnel or the organization itself, its methods and findings can invite high levels of skepticism. Employees and witnesses might not be willing to share information that is critical of an employer with the employer itself. The accused and accuser, for their part, might have reason to question the partiality of an investigation conducted in the house and whether the inquiry is a sham done to protect the employer.

This is particularly true in high-profile cases like this one, where the public expects transparency. That expectation is higher now in the WNBA than it has ever been before thanks to the league’s soaring ratings, viewership, game attendance, and expansion prospects. By way of example, Hamby’s pregnancy discrimination case was thoroughly dissected by the public well before it ever reached a courtroom. The league’s initial investigation into Hamby’s allegations was also subject to public scrutiny for its alleged failure to interview any Aces players in connection with Hamby’s allegations.

The Storm’s choice to retain outside legal counsel suggests a desire to avoid that level of scrutiny and instill confidence in the ultimate findings of its investigation.