TITLE IX

If you ain’t right, Title IX will bite!!!!!

TITLE IX

What is Title IX

• No person in the United States shall, on the basis of sex,

-- be excluded from participation in, -- be denied the benefits of, or -- be subjected to discrimination

under any education program or activity receiving Federal financial assistance."

Title IX

• TITLE IX:

• Prohibits sex discrimination in education programs/activities provided by recipients of federal funds.

• Applies to employment discrimination in educational institutions.

• Analyzes employment discrimination claims similar to a Title VII claim (burden-shifting).

Who Interprets & Enforces the Law?

• The US Department of Education/Office for Civil Rights

• Develops and implements Regulations

• Manages Complaints

• Investigation & Enforcement

• Education

• 12 Regional Offices

• US Court system – federal or state law

• Binding in that jurisdiction

Titles IX the Law

• Passed in 1972 -- Compliance Date of 1978

oMultiple Attempts to Weaken the law in Committee Fail

oAssigned to Department of Education/OCR

Women in Sports

In 1972 (32,000) In 2014 ( )

1990

•Courts Find a Private Right of Action & Monetary Damages for Intentional Violations

•Cohen v. Brown University – key case

Cohen v. Brown University Case In November 1996, women at Brown University won a

ruling in federal court that the University discriminated against women when it demoted its women's gymnastics and volleyball teams from university-funded to donor-funded varsity status and then argued that it was in compliance with Title IX. The court said that Brown violated Title IX and rejected Brown's challenge to Title IX, which was based on the stereotype that men are more interested in sports participation than are women. The Supreme Court declined Brown's petition to hear the case, and the women's teams were restored to university-funded status.

Grove City College v. Bell• Grove City College v. Bell, 465 U.S. 555 (1984), was

a case in which the United States Supreme Court held that Title IX, which only applies to colleges and universities that receive federal funds, could be applied to a private school that refused direct federal funding, but where a large number of students had received federally funded scholarships. The Court also held that the federal government could require a statutorily mandated "assurance of compliance" with Title IX, even though no evidence had been presented to suggest that Grove City College had discriminated in any way. However, the Court also held that the regulation would only apply to the institution's financial aid department

NCAA COMPLIANCE IN

TITLE IX

Any one part of the Three Prong Test:

Prong One: Substantial proportionality

Prong Two: History and continuing practice of program expansion

Prong Three: Fully and effectively accommodate

interests and abilities

NCAA COMPLIANCEOF TITLE IX

•  In 1979, there was a policy interpretation that offered three ways in which schools could be compliant with Title IX; it became known as the "three-part test".

• Providing athletic participation opportunities that are substantially proportionate to the student enrollment. This prong of the test is satisfied when participation opportunities for men and women are "substantially proportionate" to their respective undergraduate enrollment.

• Demonstrating a continual expansion of athletic opportunities for the underrepresented sex. This prong of the test is satisfied when an institution has a history and continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex (typically female).

• Accommodating the interest and ability of underrepresented sex. This prong of the test is satisfied when an institution is meeting the interests and abilities of its female students even where there are disproportionately fewer females than males participating in sports.

Ludtke v. Kuhn

Page 113

Read

LET THEM WEAR A TOWEL

WOMEN REPORTERS IN MEN’S LOCKER

ROOM

TITLE IX MYTHS• MYTH: Girls are not as interested

as boys in playing sports.

• FACT: The dramatic increase in girls' and women's participation in sport since Title IX was passed in 1972 (by 560% at the college level and 990% in high schools) demonstrates that it was lack of opportunity – not lack of interest – that kept females out of high school and college athletics for so many years.

• Before Title IX, women were told that they were not as interested in law or medicine as men were. But given equal opportunity to pursue these interests, women thrive in these fields. Similarly, given equal athletic opportunities, women will rush to fill them; the remaining discrepancies in sports participation rates are the result of continuing discrimination in access to those opportunities. 

MYTHS • MYTH: Title IX has done its job and is no longer needed. 

FACT: In the past five years, the gap between male and female athletic participation at the high school level has grown.

• Female high school athletes receive 1.3 million fewer athletic participation opportunities than their male counterparts (3.2 million female vs. 4.5 million male). 

• Female athletes receive 63,000 fewer opportunities at NCAA Institutions (193,000 female vs. 256,000 male). 

• Female college athletes receive $183 million less in NCAA athletic scholarships ($965 million female v. $1.15 billion male). 

• In addition, female high school and college athletes continue to lag behind males in the provision of equitable resources such as equipment, uniforms and facilities.

MYTHS • MYTH: Title IX has resulted in the loss of athletic opportunities for men's sports. 

FACT: Overall, men's athletic opportunities since Title IX's passage have increased. Title IX has been wrongly blamed by its critics for cuts to some men's sports teams at some educational institutions.

• Schools choose to support, eliminate or reduce particular sports opportunities on both men's and women's specific teams for a variety of reasons, including varying interests in specific sports and choices about how to allocate budget resources among the sports teams the school decides to sponsor or emphasize. The number, competitive level and quality of sports programs are individual institutional decisions, just as the number and quality of academic programs are institutional prerogatives. The government cannot dictate that particular varsity sports be added, retained or discontinued for men or women. 

MYTH• MYTH: The American public

is not supportive of Title IX.

• FACT: Eight in 10 voters (82%) support Title IX with agreement across all political parties and among voters with and without children.

• The American public believes that sports participation is as important for our daughters as it is for our sons.

FACTS

Title IX Quiz• 1. Title IX is a law about: a.ownership b. discrimination c. civil rights

• 2. Title IX also applies to employment discrimination on: a. hiring b. firing c. both

• 3. Title IX is enforced by: US Department of Education b. Office of Civil Rights c. Both

• 4. Title IX was passed in: a. 1962 b. 1972 c. 1982

• 5. In 1972, the number of women in sports were: a. 10,000 b. 23,000 c. 32,000

• 6. Cohen v. brown University was a key for Title IX because: a. the University was fined b. Monetary damages were awarded

• 7. Another landmark Title IX case was: a. Grove City v. Bell b. Lutke v. Kuhn c. Hafer v. Temple University

• 8. The NCAA uses a ____ prong test for Title IX compliance. A. 5 b. 4 c. 3

• 9. Girls are not interested in sports like boys. A. True b. False

• 10. Title IX is a direct result to the lose of men’s sport on college campus. A. True b. False

Hiring, Promotion, Termination,

Compensation, and Leave

Chapter 6

TERMS

• Civil Rights Act of 1964 ADEA

• EEOC

• Pregnancy Discrimination Act 1978

• Equal Pay Act of 1973

• American Disability Act of 1990

• Disparate Treatment

• Evidentiary burden

• BFOQ

• Title IX

• Equal Protection Clause

• Family Medical Leave Act of 1993

Management Contexts, Relevant Laws, and Cases

Hiring, Promotion, and TerminationEmployment discrimination may occur

in different forms. The U.S. Constitution and several federal statues addresses many

employment discrimination.

Decisions may be based illegally on:

• Race

• Sex

• Religion

• Disability

Title VIITitle VII of the Civil Rights Act of

1964• Protected classes:

• Race

• Color

• Religion

• Sex

• National origin

• Applies to employers with 15 or more full-time employees.

• Does not apply to independent contractors or to private membership clubs.

• Does not apply to American Indian Tribes or religious organization hiring for religious functions.

Types of Discrimination

Adverse employment actions related to:

• Hiring

• Firing

• Layoffs

• Job training

• Work assignments

• Discipline

• Job classifications

• Provision of benefits

Equal Employment Opportunity Commission

(EEOC)A Federal Agency

•Facts

•1. The EEOC issues regulations for implementing Title VII.

•2. The EEOC can issue guidelines for analyzing discrimination.

•3. An example of #2 is the Enforcement guidelines on Sex Discrimination in the Compensation of Sports coaches in Educational Institutions (EEOC, 1997).

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal

employment opportunity regulations, practices, and policies.

•Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

•the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

•the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

•Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

•Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;

•Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and

•the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Title VII Remedies

• Back pay- for work missed due to employment action.

• Front pay- for future earnings that would have been received.

• Reinstatement- employee goes back to the position.

• Retroactive seniority

• Injunctive relief- ordering the employer to cease unlawful practices.

• Attorneys fees-

• Compensatory and punitive damages

COACHES

Theories of Liabilities and Defenses

• Courts use two primary theories of liability in deciding Title VII cases:

• Disparate Treatment-

Claim requires a finding of intentional discrimination:

• Direct evidence of intent

• Inference from circumstantial evidence relating to the way the employer has treated others

• Read p. 103 Biver v. Saginaw Township Community Schools (1986)

• Evidentiary burdens:

• Burden of production-defendant’s responsibility to produce evidence supporting the defense.

• Burden of proof- The responsibility of proving the truth of a claim.

Theories of Liabilities and Defenses

• 2. Disparate Impact

• Used when a plaintiff has appropriate statistical evidence that a “neutral” employment practice has had an impact on members of a protected class.

• Successful claims are rare:

• Difficult to establish that a workforce pool has been negatively impacted.

• The common method used of proving discriminatory intent is the McDonnell Douglas test.

The McDonnell Douglas Test(A burden-shifting analysis)

• Burden of production –need to produce evidence

• Burden of proof- need to prove the truth of an issue

• Prima facie case- prove that the allegations are true

• Preponderance of the evidence- the level of proof required to prevail

• SLNDR – some legitimate, nondiscriminatory reason

• Page 104 (exhibit 6.4)

• Page 105 Read

BFOQ Defense

In cases of alleged gender discrimination the BFOQ defense is available:

•Bona fide occupational qualification defense

•Employer must show that members of the excluded class could not perform essential job functions effectively—and discrimination was justified.

•Example:

• Male fitness instructor at an all-female health club.

• Read page 110

Equal Protection Clause Tests

Age Discrimination in Employment Act (ADEA)

• Applies to employers with 20 or more employees

• Applies to American Indian tribes, religious organizations, and private membership clubs (unlike Title VII)

• Prohibits private right of action against state government employers

• Does not protect against discrimination based on being too young

Examples of Age Discrimination

• Forcing retirement due to age

• Including age preferences in job ads

• Assigning older workers to jobs that do not allow for promotion to higher-level positions

• Promoting a younger worker over an older worker, because the older worker may be planning to retire

• Hiring a younger worker over a better-qualified older worker

Your Perspective

• You’ve just been hired as the new skiing instructor at a ski resort in Colorado. You discover that another applicant with 20 years’ of instructing experience was turned down for the job.

• What is your reaction?

• What do you say to the person who made the hiring decision?

Disability DiscriminationRelevant Federal Law

Disability DiscriminationRelevant Federal Law

• §504 of Rehabilitation Act of 1973:

• 1. The disability limits a major life activity.

• 2. Plaintiff was discriminated against on the basis of the disability.

• 3. No reasonable accommodation was made.

• Americans with Disabilities Act of 1990

• Americans with Disabilities Act Amendments Act of 2008

Covered Disabilities

• Physical impairments

• Mental impairments/psychological disorders

• Infectious/contagious diseases

• Past disabilities

• Perceived but not real disabilities (i.e., facial deformities, prior cancer treatment)

• Not covered: • Temporary injuries or conditions, correctable

impairments

SPECIAL OLYMPICS

§ 504 / ADA /ADAAAConditions Excusing Employer from

Liability

• Adverse action is not solely based on disability

• Employee could not perform essential job functions

• Reasonable accommodation is offered

• Needed accommodation is an undue hardship or requires fundamental alteration in nature of business

Examples of Reasonable / Unreasonable Accommodations

• Reasonable:

• Rendering facilities/equipment accessible and usable

• Modifying work schedules

• Modifying qualifying exams or training materials

• Unreasonable:

• Tolerating employee misconduct stemming from a disability

• Tolerating frequent absences

• Redesigning a job by eliminating many essential job functions

Significant Risk Exception

• If a risk poses direct threat to safety and well-being of oneself or others, there is no obligation to hire or maintain employment.

• Factors in assessing direct threat:

• Severity of risk

• Likelihood of harm

• Available means of reducing risk

In Your Role as Manager

• Do not require medical exams until after an employee has been hired

• Seek other perspectives when trying to determine if an accommodation is reasonable or constitutes undue hardship

• Avoid asking interview questions with potentially discriminatory implications

• Focus on what applicants can do.

Discrimination in Compensation

Relevant Federal Law

During the 1990s the issue of gender equity saw lawsuits under the following

laws:

Title VII

Title IX

Equal Pay Act of 1963

Stanley v. USC (1999)

Perdue v. City Univ. of NY (1998)

Tyler v. Howard Univ. (1993)

Coaching Compensation:Key Issues

• Differences in coaching responsibilities, pressures, revenue generation

• Title VII and Equal Pay Act claims are based on the sex of the employee, but salary disparities are based on the sex of the team.

Discrimination Regarding Employee

Leave

• Pregnancy Discrimination Act of 1978:

Employers to treat pregnancy like any other temporary inability to work and allow pregnant women to take leave time.

• Family & Medical Leave Act of 1993:

Guarantees up to 12 weeks of unpaid leave per year that can be used childbirth or adoption or to care for sick primary family members. Employee’s must have the equivalent job upon return.

Quiz1. "Melissa Ludtke, the sports reporter who was denied access to the New York Yankees locker room because she was female, lost her lawsuit because the court felt that the privacy of the players could be protected in no other way." A. True B. False

2. If a person is infected with HIV virus, that person is considered to have a disability covered under the Americans with Disabilities Act. A True B. False

3. People with learning disabilities are not protected under the Americans with Disabilities Act nor under section 504 of the Rehabilitation Act. A. True B. False

4. "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination directed at the protected classes of race, color, religion, sex, and national origin."

5. The bona fide occupational qualification (BFOQ) defense is available under Title VII for claims of employment discrimination based on which of the following? Sex and race Sex and religion Race and religion None of the above

6. "The law that requires that women receive equal salaries as men for doing work that requires equal skill, effort, and responsibility, and that is performed under similar working conditions, is known as _____." Title VII Title IX The Equal Pay Act None of the above

7. Which of the following prohibits terminating a female employee because she is pregnant? Title VI The Equal Pay Act ADA None of the above

ANSWERS1. "Melissa Ludtke, the sports reporter who was denied access to the New York Yankees locker room because she was female, lost her lawsuit because the court felt that the privacy of the players could be protected in no other way." True False B

2. "If a person is infected with the HIV virus, that person is considered to have a disability covered under the Americans with Disabilities Act and under section 504 of the Rehabilitation Act. " True False A

3. People with learning disabilities are not protected under the Americans with Disabilities Act nor under section 504 of the Rehabilitation Act. True False B

4. "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination directed at the protected classes of race, color, religion, sex, and national origin." True False A

5. The bona fide occupational qualification (BFOQ) defense is available under Title VII for claims of employment discrimination based on which of the following? Sex and race Sex and religion Race and religion None of the above B

6. "The law that requires that women receive equal salaries as men for doing work that requires equal skill, effort, and responsibility, and that is performed under similar working conditions, is known as _____." Title VII Title IX The Equal Pay Act None of the above C

7. Which of the following prohibits terminating a female employee because she is pregnant? Title VI The Equal Pay Act ADA None of the above D

Review

• Review Title IX quiz.

• Review the terms for chapter six.

• Review the quiz for chapter six.