On May 6, a federal judge in Nevada gave the go-ahead to a pregnancy discrimination lawsuit by Los Angeles Sparks forward Dearica Hamby against her former team, the Las Vegas Aces. 

The court dismissed Ms. Hamby’s allegations against the Women’s National Basketball Association, but the case is a bad look for the WNBA as well as the Aces. It became public because of a narrow arbitration provision in the collective bargaining agreement between the WNBA and the Women’s National Basketball Players Association.

Ms. Hamby’s lawsuit

Ms. Hamby entered the 2022 season, her eighth with the Aces, as a pending free agent. On June 28, 2022, about six weeks into the season, Ms. Hamby and the Aces signed a two-year contract extension through the 2024 season.

According to Ms. Hamby, on July 18, 2022, she discovered for the first time that she was pregnant with her second child. Ms. Hamby confirmed the pregnancy at a doctor’s appointment in August. She alleges that she informed Natalie Williams, the Aces’ General Manager, of the pregnancy, not long afterward.

Ms. Hamby continued playing and helped the Aces to the 2022 title. On September 20, 2022, during the Aces’ victory parade, Ms. Hamby announced her pregnancy to the public.

After that announcement, Ms. Hamby claims that the team’s attitude toward her took a negative turn. In the fall of 2022, Ms. Hamby claims that the Aces failed to pay promised tuition for her daughter and also requested that she vacate team-provided housing.

Then, in a call between Ms. Hamby and Aces’ head coach Becky Hammon on January 15, 2023, Ms. Hamby claims that Ms. Hammon chastised her for not taking precautions against getting pregnant, questioned her commitment to the team and her work ethic, and accused Ms. Hamby of signing her contract extension knowing that she was pregnant and without informing the team (which would be a violation of the collective bargaining agreement). Ms. Hamby denied the allegations and insisted that she would be ready for the 2023 season after giving birth in the offseason.

Six days later, on January 21, 2023, the Aces traded Ms. Hamby to the Los Angeles Sparks.

The fallout

On the day her trade was announced, Ms. Hamby made her allegations public in a social media post. Two days later, the Players Association asked the WNBA to investigate her claims, which it did.

On May 16, 2023, the WNBA announced the results – but not the details – of its investigation. The league rescinded the Aces’ 2025 first round Draft pick “for violating league rules regarding impermissible benefits” and suspended Coach Hammon two games “for violating league and team Respect in the Workplace policies.” The WNBA said its investigation included “interviews with 33 people and a review of numerous texts, emails and other documents.”

The Aces at that time issued a statement expressing that they were “deeply disappointed by the outcome of the WNBA investigation” and supporting Coach Hammon. Ms. Hamby countered that the WNBA did not interview any other Aces players and otherwise failed to sufficiently address the wrongful conduct.

Ms. Hamby gave birth to a son on March 6, 2023, and timely reported to training camp for the Sparks on April 28, 2023. She then played all 40 games in the 2023 season, averaging 8.9 points per game. She had her best season ever in 2024, averaging 17.3 points per game.

Ms. Hamby’s legal claims

Ms. Hamby sued for pregnancy discrimination under Title VII. The Pregnant Workers Fairness Act, which requires employers to make reasonable accommodations for pregnancy or pregnancy-related conditions, had not yet taken effect when the alleged events occurred.

Ms. Hamby also alleges that the Aces retaliated against her by telling Aces players and staff not to communicate with her, claiming Ms. Hamby knew she was pregnant when she signed her contract extension, attempting to obtain her medical records, refusing to invite her to a White House celebration, and prohibiting the Aces’ video staff from showing Ms. Hamby’s daughter on the video screen at a game, something that they had previously done.

Finally, Ms. Hamby claimed that the WNBA retaliated against her by conducting an inadequate investigation and failing to extend a league marketing contract with her. Ms. Hamby’s claims against the WNBA relied on the legal claim that the WNBA is a joint employer with the Aces.

The court’s decision

The court ruled that Ms. Hamby had plausibly alleged that the Aces had unlawfully retaliated against her as a result of her pregnancy by (1) not inviting her to the White House; and (2) prohibiting its staff from displaying Ms. Hamby’s daughter on the video board.  

However, the court found that Ms. Hamby had not sufficiently described the temporal connection between the revelation of her pregnancy and the other alleged acts of retaliation. The court granted Ms. Hamby permission to amend her complaint to clarify the details around these allegations.

The court dismissed Ms. Hamby’s claims against the WNBA, holding that the alleged inadequate investigation was not enough to support her retaliation claim. Ms. Hamby’s claims of discrimination based on the WNBA’s non-renewal of her marketing contract were barred because she had not filed a charge with the Equal Employment Opportunity Commission. As a result of these conclusions, the court did not have to address the joint employer issue.

The court also had to consider whether Ms. Hamby sufficiently alleged harm to pursue her claims, given that she never suffered a reduction in pay. Relying on the Supreme Court’s 2024 decision in Muldrow v. City of St. Louis which lowered the bar in establishing harm, the court found that trading Ms. Hamby to the Sparks was enough because the Sparks have been less successful than the Aces and because Ms. Hamby is less likely to earn endorsement opportunities in the saturated Los Angeles market as contrasted with Las Vegas.

Case wide open

One of the interesting aspects of Ms. Hamby’s lawsuit is that it exists at all. Many American employers require their employees to agree to a private arbitration process for the resolution of any disputes related to or arising out of an employee’s employment with that employer. Arbitration provisions are generally broadly drafted to include any and all types of claims, including breach of contract, discrimination, harassment, retaliation, and unpaid wages. Employers generally prefer arbitration because it does not include public filings or hearings, is considered faster and cheaper, and avoids the risks associated with jury trials.

However, if employees are represented by a union that negotiates a contract with the employer, the contract typically requires arbitration only of claims asserting a violation of the contract – not all claims related to the employment relationship. This is true of arbitration provisions governing all of the major American sports leagues, including the contract between the WNBA and the Players Association. Ms. Hamby’s lawsuit is based on federal law and does not allege violations of her contract or the collective bargaining agreement.

Moreover, although the contract provides that the WNBA, its teams, or the Players Association will not “discriminate in the interpretation or application” of the contract “because of religion, race, national origin, sexual orientation, marital status,” or involvement with the Players Association, it does not reference pregnancy. 

In October 2024, the Players Association opted out of the parties’ collective bargaining agreement, effective after the 2025 season that just started. The contract already provides that players are to receive 100 percent of their base salary while unable to play because of pregnancy, but Ms. Hamby’s case suggests that there may be additional pregnancy-related issues to discuss in the forthcoming negotiations. The league may also want to consider the scope of its arbitration clause.

In the meantime, all parties have an incentive to settle. The Aces and the WNBA would certainly prefer that their recent surge in popularity not be clouded by allegations that they are insufficiently supporting their players in one of the most important aspects of their lives. From Ms. Hamby’s perspective, the court’s decision gives her some real leverage, and because her economic damages are questionable, she should likewise be motivated to resolve her claims.