Leveling the Playing Field: Can Title VII Work to Increase Minority Coaching Hires in NCAA Athletes
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applications with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.1
It has been four years since Justice Sandra Day O’Connor referred to Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), in her majority opinion in Grutter v. Bollinger, 539 U.S. 306 (2003),
and set a time frame for affirmative action programs to be unnecessary. In some cases, her prediction might be spot on. However, in collegiate athletics the numbers suggest that progress might need a jumpstart. During Super Bowl XLI in Miami, the National Football League and the accompanying media frenzy exalted the progress of minority coaching hires through the success of its “Rooney Rule.” The rule, which was instituted in 2003, mandates that any NFL team with a head coaching vacancy is required to interview at least one minority candidate.
The Rooney Rule has resulted in the number of minority head coaches in the league rising from three to seven in 20062 ( 21.8 percent), while NCAA Football Bowl Subdivision (formerly Division I-A) minority coaches also rose from three to seven at 119 schools by the end of the hiring cycle this past season, equivalent to 5.8 percent.3 Because the percentage of minority coaches lacks in stark comparison to the NFL, Black College Association Executive Director Floyd Keith recently remarked to Congress that, “[s]adly, if the pace of progress remains the same, it will be approximately 80 years before we reach a percentage [of coaches] that even approximates the number of African-Americans in the general population. This is not only unacceptable, this is unconscionably wrong.”4
Compare Justice O’Connor’s prediction with Floyd Keith’s reality, and the need for calls of immediate change become apparent. “I think it’s pretty clear that embarrassment hasn’t been enough. One of the things we’re thinking about is Title VII lawsuits.”5 Dr. Richard Lapchick is the director of the Florida-based Institute for Diversity and Ethics in Sport and is a staunch advocate for the rights of women and minorities in athletics. His words are being echoed throughout collegiate athletics circles, but how viable is such discussion? Could a Title VII lawsuit be successful against a public university? How would such a turn of events play out? This article will attempt to go through the potential litigants, legal theories, and outcomes if a minority candidate were to sue an NCAA member institution under a Title VII theory of racial discrimination.
Title VII Framework in Florida
The Florida Civil Rights Act, F.S. §760.10(1)(a) (2006) (FCRA), would be the proper vehicle for a coach in Florida to bring an action for racial discrimination. The statute, according to the Fourth Circuit, says that “it is unlawful for an employer to ‘discharge or fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.’”6 The First Circuit stated that “[t]he F.C.R.A. is modeled after Title VII, so that federal case law regarding Title VII is applicable to construe the Act.”7 The Florida Supreme Court elaborated that “[t]he statute’s stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964. Like Title VII, Chapter 760 is remedial and requires a liberal construction to preserve and promote access to the remedy intended by the Legislature.”8
Since the FCRA is modeled after Title VII, 42 U.S.C. §2000e-2(a)(1), the same analysis will apply for a coach intending to proffer evidence of racial discrimination, presumably under the disparate treatment theory. Under this theory, a coach would demonstrate that he or she was treated differently than others in his or her same position. The standard of proof is a steep one and requires the plaintiff first to pass a four-pronged test in order to establish a prima facie case of discrimination. The standard is governed by the requirements set by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). These claims are evaluated based on circumstantial, rather than direct, evidence of discrimination.9 Thus, the 11th Circuit, like all the others, uses the following framework when the plaintiff must resort to proving racial discrimination through circumstantial evidence:
Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of racial discrimination under Title VII by showing: (1) the plaintiff belongs to a racial minority; (2) he [or she] was subjected to adverse job action; (3) his employer treated similarly situated employees of other races more favorably; and (4) he [or she] was qualified to do the job.10
If the plaintiff can assert a prima facie case, then the burden shifts to the defendant employer to prove there was a legitimate, nondiscriminatory reason for its action.11 If the employer properly does this, the plaintiff employee must then demonstrate that the employer’s given reason was mere pretext.12 The employee “may [also] present other evidence to show that discriminatory intent was more likely the cause of the employer’s actions.”13
The plaintiff’s burden to prove a prima facie case is not very difficult.14 To establish this prima facie case, a plaintiff must adduce evidence tending to show that the challenged adverse employment action is not readily explainable by meritorious reasons.15 There would be no question as to the element of belonging to a protected class of individuals if a plaintiff were African-American.
“With respect to the second element of the prima facie case of discrimination, it is clear that not all conduct by an employer negatively affecting an employee constitutes adverse employment action.”16 & #x201c;To establish sufficiently adverse employment action, a plaintiff must show a ‘serious and material’ change in the terms, conditions or privileges of employment.”17 & #x201c;Although the statute does not require any direct economic consequences, the employer’s action must impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a ‘real and demonstrable way,’ and the asserted impact cannot be speculative and must at least have a ‘tangible adverse effect’ on the plaintiff’s employment.”18 & #x201c;[T]he employee’s subjective view of the significance and adversity of the employer’s action must be materially adverse as viewed by a reasonable person in the circumstances.”19
As to the third element, the plaintiff employee must prove he was similarly situated to all the other employees in all respects. “In determining whether employees are similarly situated…it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.”20
The court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981), defined “disparate treatment…where the employer simply treats some people less favorably than others because of their race, color, sex, or national origin.”
Many feel the fourth prong of the prima facie case is of less value than the other three.21 & #x201c;In cases where a plaintiff has held a position for a significant period of time, qualification for that position sufficient to satisfy the test of prima facie case can be inferred.”22 This means that “allegations of poor performance against the plaintiffs discharged from long-held positions may be properly considered…when a court evaluates the pretextual nature of an employer’s proffered nondiscriminatory reasons for termination.”23
When the burden shifts to the defendant employer, it must “articulate some legitimate, nondiscriminatory reason for the [adverse employment action].”24 In this regard, the employer is permitted to assert a subjective reason for not hiring or for terminating the employee.25 The 11th Circuit expounded on the difference between a properly founded subjective opinion from an improper one:
A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion. Continuing our example of a sales clerk or wait staff position, it might not be sufficient for a defendant employer to say it did not hire the plaintiff applicant simply because “I did not like his appearance” with no further explanation. However, if the defendant employer said, “I did not like his appearance because his hair was uncombed and he had dandruff all over his shoulders,” or “because he had his nose pierced,” or “because his fingernails were dirty,” or “because he came to the interview wearing short pants and a T-shirt,” the defendant would have articulated a “clear and reasonably specific” basis for its subjective opinion — the applicant’s bad (in the employer’s view) appearance. That subjective reason would therefore be a legally sufficient, legitimate, nondiscriminatory reason for not hiring the plaintiff applicant.26
Thus, as long as the employer can base its decision on an objective evaluation, it will survive judicial scrutiny when the burden shifts.27 This decision, in which an en banc panel of the 11th Circuit overturned an earlier decision,28 reversed the district court’s summary judgment ruling on grounds that more than a subjective reason was necessary.29 The decision could arguably make it more difficult for employees bringing claims under Title VII.
Finally, the analysis shifts back to the employee.
If the defendant articulates one or more such reasons [as those provided above], the presumption of discrimination is eliminated and “the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.”30
This is essentially what pretext means. If the plaintiff is unable to articulate any evidence to create a genuine issue of material fact as to the employer’s reasons, then summary judgment is proper for the employer.31
Using the same aforementioned standard, another potential Title VII claim can be brought under the “cat’s paw” or “rubber stamp doctrine,” in which a subordinate’s discriminatory animus in recommending not to hire a candidate or to fire a current employee may be imputed to the employer; however, this issue has not yet been settled in its entirety and was granted certiorari by the U.S. Supreme Court in January 2007.32
Taking the Next Step: The Coach’s FCRA/Title VII Lawsuit
Perhaps the most important question to ask in this context is who will bring suit, meaning which coach will attempt to take an NCAA institution to task. According to BCA Executive Director Floyd Keith, “It’s going to take a Curt Flood [type of person].33 It can’t be just anybody; it has to be a marquee name. We also have to have a little background on the situation. This is a 50-50 proposition as to winning or losing a Title VII case.”34 Floyd said that the decision to consider Title VII (or the FCRA if filed as a state claim in Florida) came at the BCA’s annual convention in May.35 This same sentiment was echoed in the aforementioned meeting with congressional leaders, as well as by NCAA President Myles Brand earlier this year.
As for the claim itself, “it is extremely difficult to [prove racial discrimination],” says Timothy Davis, professor of law at Wake Forest University School of Law.36
If you have ever been on a search committee for a coach, you start to see a varying range of criteria. Some is objective, like education and coaching experience. But then there are subjective criteria involved as well, such as good recruiting ability, a sense of management skills, and public relations skills. There are others on a committee who try to get a sense of whether or not the candidate is a good fit, both within the university community and the larger community.37
Take for example, the case of Jackson v. University of New Haven, 228 F. Supp. 2d 156 (D.Conn. 2002), in which an African-American coaching candidate sued on the basis of §1981,38 Title VII, and Title VI39 against the university and athletic director when he was not included in the final pool of interviewees for a vacant head coaching position. As to his Title VII action, the U.S. District Court of Connecticut granted summary judgment to the employer university because, in large part, Mr. Jackson could not meet the second prong of the prima facie case.40 When the university posted its opening for the head coaching position on the NCAA Web site, it specifically noted that prior collegiate experience was necessary; Mr. Jackson only had minor league football coaching experience.41 The court noted that its sole job was to determine whether the plaintiff was qualified for the job under the criteria set forth by the university for its head coaching vacancy, and not to tell the university what qualifications should be pertinent for the position.42 Specifically, the district court gave deference to three cases: Thornley v. Penton Publishing, 104 F.3d 26 (2d Cir. 1997); Schaffner v. Glencoe Park District, 256 F.3d 616 (7th Cir. 2001); and Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000).
In Thornley, the Second Circuit defined the term “qualified” as “the criteria the employer has specified for the position. Absent a showing by the plaintiff that the employer’s demands were made in bad faith…and employer…is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury.”43 The Schaffner court determined that “[w]hat the qualifications for a position are, even if those qualifications change, is a business decision, one courts should not interfere with. We do not tell employers what the requirements for a job must be.”44 Finally, in Howley, the Second Circuit determined that a city was “entitled to set its own criteria” for the position of assistant chief, in that it deemed four years of line-officer experience necessary, which the applicant-plaintiff did not possess.45 Taking all of these factors together, the court determined that there was no discriminatory intent in UNH’s posting when it required prior collegiate head coaching experience as a prerequisite to be included in the interview process.46 The district court asserted that a school’s decision to set forth criteria were in line with how a school generally goes about searching for a head coach and, therefore, no court should try to change or call into question those business practices. If a coach cannot set forth facts that certain job criteria were part of the qualifications because the school knew that no minority applicant could possibly attain those qualifications, or that those qualifications presented some kind of barrier to being considered because of their race, then a court will grant summary judgment.47
These examples demonstrate how difficult such a lawsuit will proceed, which is why Lapchick feels the right plaintiff is necessary. “We have to carefully select a coach who is willing to risk his or her future employment, due to the sensitive nature of this type of lawsuit.”48 Temple University Professor of Law Jeremi Duru, who also works with Cyrus Mehri at the Fritz Pollard Alliance,49 agrees. “A coach could, as a result of such an action, be black-balled in coaching circles, a la Curt Flood, which hurt his coaching opportunities.”50
Even though establishing a prima facie case is generally not that difficult, here it could be an issue, in light of Jackson and the cases cited therein. Duru pointed out that sports entities in general seem to get greater latitude in defending their actions, which could come into play when a plaintiff tries to assert that he or she was as qualified for the job as the person chosen. Even if the plaintiff proves its prima facie case, the defendant employer could still get the benefit of the doubt:
The employer seems to be entitled to some “objective subjectivity.” It’s hard for a plaintiff to come out and win on that standard and win as to pretext. It gets even more troublesome in the sports context, because there is a sense of deference for this objective subjectivity because of the so called “it factor,” meaning this person is good at recruiting, good in the living room [with potential recruits and their families], that they can galvanize people. It probably depends mostly on the discovery process — is there a real smoking gun or facts that really tie the NCAA institution to intentional discrimination, but other than that a Title VII claim would be very difficult.51
For those reasons, Duru and Lapchick agree that while a Title VII or FCRA suit might not be successful on the merits, it might effect change by forcing the NCAA’s member institutions to consider a best practices model like the NFL’s Rooney Rule. “The BCA and others argue that the burden should be on the member institutions who have erected barriers against quality opportunities [for minority head coaches]. But under the current system, it is the hardest way to try to rework the system to put the burden on the employer. That is why we want a Rooney Rule type of system: to put the burden on the employer at all times.”52
Lapchick says those involved in this pursuit should keep their collective eyes on the prize. “What we want is a changed set of hiring practices for college sports in America, to bring a person of color into the interview process to get significantly more minorities into coaching positions. That’s the point of a Rooney Rule-type of policy, or something similar in nature to Title IX.”53
Perhaps the biggest hurdle comes from those parties peripheral to the NCAA institutions — boosters. Boosters provide dollars to NCAA institutions, and many agree that means they have some say in the hiring process. Davis, Duru, Keith, and Lapchick all agree that boosters provide one potential stumbling block in implementing a Rooney Rule type of policy. Former BCA president and current Deputy Athletic Director of Athletics at The University of Notre Dame Stan Wilcox feels there are some pieces in place but there still is plenty more work to be done before he and others will feel like there are equal opportunities for minority coaching candidates.
The BCA, the NCAA Minority Opportunities and Interest Committee and Minority Opportunities Athletic Association must continue to put real pressure on the NCAA to develop best practice hiring strategies that can assist institutions with their hiring policies and procedures. This has to be a systematic process with the assistance of the major power brokers within collegiate athletics ( e.g., Athletic Directors, University Presidents and Conference Commissioners). While continuing to receive pressure from boosters and other outside forces, athletic directors and university presidents will still find it difficult to implement a best practices model. However, right now there are some tools in place, like the BCA Hiring Report Card, the NCAA Expert Coaching Academy, NFL Minority Coaches’ Fellowship and Internship programs that do aid in the process of getting more minorities into the coaching candidacy picture.54
The effort continues for those at the institutional level and with those calling for change to engineer some sort of policy or even legislation that the NCAA member institutions will implement. If not, the quest for a high profile Title VII plaintiff will begin. No matter what the legal result, the public relations eyesore that NCAA member institutions could suffer might eventually result in a best practices model that someday will level the playing field in college athletics coaching circles.?
1 Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (emphasis added).
2 For a more complete look at the NFL’s Rooney Rule, including an analysis of the rule under the affirmative action framework, see Bram A. Maravent, Is the Rooney Rule Affirmative Action? Analyzing the NFL’s Mandate to Its Clubs Regarding Coaching and Front Office Hires, 13 Sports Lawyers J. 233 (2006).
3 Pat Forde, NFL Leads Colleges in Promoting Minority Coaches, ESPN.com, January 20, 2007, available at sports.espn.go.com/espn/columns/story?id=2735369. “In college football, meanwhile, 10 out of 10 BCS bowl coaches and 62 out of 64 bowl coaches overall were white.. . . With the hirings of African-American Randy Shannon at Miami and Cuban-born Mario Cristobal at Florida International, the number of minority Division I-A head coaches has ballooned to seven. Woo-hoo. That’s two out of the 21 hires made to date, not enough to appreciably move the needle toward equality.” Id. See also Steve Wieberg, BCA Ready to Exert Influence in College Hires, USA Today, February 13, 2003, available at www.centralohio.com/ohiostate/stories/20030212/football/970750.html.
4 Associated Press, Lack of Black Coaches Lamented at Hearing, March 1, 2007, available at sports.espn.go.com/espn/print?id=2783335&type=story.
5 Id. Dr. Lapchick also produces an annual report called The Racial and Gender Report Card, now produced by the University of Central Florida’s Institute for Diversity and Ethics in Sport. Until 1998, the Report was known as the Racial Report Card. DeVos Sports Institute, Dr. Lapchick biography, www.bus.ucf.edu/sport/cgi-bin/site/sitew.cgi?page+/program/ledership/lapchick.htx.
6 Byrd v. BT Foods Inc., 2007 WL 461322, 3 (Fla. 4th D.C.A. 2007).
7 Id. ; see Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st D.C.A. 2002).
8 Woodham v. Blue Cross and Blue Shield of Florida, Inc., 820 So. 2d 891, 894 (Fla. 2002).
9 Chapman v. AI Transport, 229 F.3d 1012, 1014 (11th Cir. 2000).
10 Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997); see also McDonnell Douglas, 11 U.S. at 802.
11 McDonnell Douglas, 11 U.S. at 802-03.
12 Id. at 804.
13 Alford v. Florida, 390 F. Supp. 2d 1236, 1247 (S.D. Fla. 2005); see also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir. 1984).
15 McDonnell Douglas, 411 U.S. at 802.
16 Brown v. Sybase, Inc., 287 F. Supp. 2d 1330, 1339 (S.D. Fla. 2003); Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001).
17 Id. ; Davis, 245 F.3d at 1239.
19 Id. at 1238.
20 Holifield, 115 F.3d at 1562.
21 See Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001).
23 Damon v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1360 (11th Cir. 1999).
24 McDonnell Douglas, 411 U.S. at 802.
25 Chapman, 229 F.3d at 1034.
28 Chapman v. AI Transport, 180 F.3d 1244 (11th Cir. 1999).
30 Chapman, 229 F.3d at 1024-25 (quoting Burdine, 450 U.S. at 254-55).
32 The actual case to be decided by the High Court, EEOC v. BCI Coca-Cola Bottling Company of Los Angeles, 450 F.3d 476 (10th Cir. 2006), was voluntarily dismissed by BCI. In BCI, the 10th Circuit imputed liability to the employer when a supervisory employee not authorized to discipline or terminate employees, allegedly acted in a discriminatory manner to an African-American employee prior to termination. “The cat’s paw refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Id. at 484. “Rubber stamp…refers to a situation in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.” Id.
33 Curt Flood was perhaps one of the most influential baseball players in labor circles. In 1969, he refused a trade to the Philadelphia Phillies and challenged Major League Baseball’s “reserve clause” all the way to the U.S. Supreme Court ( Flood v. Kuhn, 207 U.S. 258 (1969)) where he eventually lost. In his initial challenge to then-commissioner Bowie Kuhn, he explained that he wanted to be a “free agent.” Flood eventually sat out the entire 1970 season and was traded to the Washington Senators. 1975, the reserve clause was struck down.
34 Telephone interview with Floyd Keith, president of the Black Coaches Association (March 1, 2007).
36 Telephone interview with Timothy Davis, professor of law, Wake Forest University School of Law (March 13, 2007). Professor Davis teaches and writes about contracts and sports law. For more information on Professor Davis, see his biography at law.wfu.edu/x1604.xml.
38 4 2 U.S.C. §1981.
39 4 2 U.S.C. §2000d.
40 Jackson, 228 F.Supp.2d at 162.
41 Id. at 157-58.
42 Id. at 161-62.
43 Thornley, 104 F.3d at 29.
44 Schaffner, 256 F.3d at 620-21.
45 Howley, 217 F.3d at 151.
46 Jackson, 228 F.Supp.2d at 162.
47 The District Court of Connecticut dismissed all three causes of action against the school and its athletic director for the same reasons as listed above.
48 Telephone interview with Dr. Richard Lapchick (March 19, 2007).
49 For more information on the Fritz Pollard Alliance, see www.fpal.org/.
50 Telephone interview with Temple University Beasley School of Law Professor Jeremi Duru (March 20, 2007). His biography is at www.law.temple.edu/servlet/RetrievePage?site=TempleLaw&page=Faculty_Duru.
53 Telephone interview with Dr. Richard Lapchick (March 19, 2007).
54 Telephone interview with Notre Dame University Deputy Athletic Director Stan Wilcox (February 22, 2007). For more information on Mr. Wilcox, see his biography at und.cstv.com/genrel/wilcox_stan00.html. The most recent BCA Hiring Report Card is at www.bcasports.org/Assets/PDF/HRCfootball.pdf. For more information on the NFL Minority Coaches Fellowship, see www.nfl.com/news/story/8790093; www.jointheteam.com/programs/program.asp?p=21&c=3.
Bram A. Maravent is an attorney with Mierzwa & Associates, P.A., in Lake Worth. Mr. Maravent thanks Matthew J. Mierzwa, Jr., and Mark W. Floyd of Mierzwa & Associates, P.A., Floyd Keith, Dr. Richard Lapchick, Professor of Law Jeremi Duru, Stan Wilcox, Professor of Law Tim Davis, and Professor of Law Michael Masinter for their input.
Benjamin Tario , served as football assistant to the Big East Conference and currently holds a similar position with the Atlantic Coast Conference.
This column is submitted on behalf of the Entertainment, Arts and Sports Law Section, Laurie Hannan-Anton, chair, and John F. Bradley, editor.