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Managing Title VII Compliance in College Athletics [Higher-Ed/College Athletics Best Practices Alert (Oct. 2013)]

Author: Justin P. Sievert (Senior Counsel)

As part of their job responsibilities, senior athletics administrators are often tasked with creating an environment free of unlawful discrimination and responding to complaints of discrimination. In order for an administrator to resolve disputes involving alleged discrimination and avoid litigation, it is essential they have an understanding of what Title VII is, how it operates and what best practices they can follow at their institution. Therefore, this article will address the basic components of Title VII in the context of college athletics and offer best practices that can be implemented to proactively reduce the possibility of Title VII litigation.

Title VII Basics

Title VII of the Civil Rights Act of 1964 prohibits applicant and employee discrimination and harassment based on race, color, sex, religion and national origin (which are protected classes under the law). Title VII applies to almost all employers who employ more than 15 employees with few exceptions. Further, Title VII applies to all aspects of employment, including hiring, firing, promotion and retention. It also prohibits retaliation for complaining of harassment or discrimination. Additionally, Title VII prohibits both disparate treatment and disparate impact discrimination. Disparate treatment discrimination occurs when treating an individual unfairly based on his or her protected class status. Disparate impact discrimination occurs when a neutral workplace policy or practice negatively affects individuals in a protected class.

For a Title VII action to commence, a plaintiff must first file an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”) or a local agency that has an arrangement with the EEOC. The plaintiff will have 180 days to file their complaint unless a state or local agency enforces a state or local law that prohibits employment discrimination on the same basis. Under these circumstances, the filing deadline may be extended to 300 days. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination. In addition to a federal claim with the EEOC, many states and localities have agencies that enforce laws prohibiting employment discrimination. The EEOC has work-sharing agreements with these agencies in order to prevent the duplication of charge processing. Essentially, these agreements will ensure a plaintiff’s charge is automatically filed with the other agency. If a plaintiff fails to meet the appropriate filing deadline, the claim will be precluded, absent an exceptional circumstance.

Following an investigation, if the EEOC determines there is “no reasonable cause” to find for the plaintiff, the EEOC will dismiss the charge and will issue a Right-to-Sue Notice (“Notice”) to the plaintiff. The plaintiff may also request this Notice 180 days after the filing of the initial charge, which would allow a lawsuit to be initiated. The EEOC also has the option of issuing an early Notice should the agency determines it cannot complete the investigation within 180 days of the filing. Following the Notice, the plaintiff has 90 days to file a Title VII lawsuit, or it will be precluded, absent an exceptional circumstance.

Title VII Best Practices

While no amount of due-diligence or preventative measures can completely alleviate the risk of a potential Title VII lawsuit, specific actions can be taken to assist athletics departments with reducing the risk of liability for Title VII claims. Specifically, Buckner recommends institution’s athletics departments implement the following education and training measures to proactively reduce the possibility of Title VII litigation.

  • Training Programs: Institutions must ensure all department personnel are provided Title VII training on a regular basis. This training should occur, at a minimum, semi-annually, and should include both full- and part-time athletics administrators, coaches, athletics trainers and athletics administrative staff members. The training should be conducted by an experienced professional.
  • Anti-Discrimination Policies: An institution must ensure its anti-discrimination policy is reviewed on a regular basis as regulatory changes and real-world events dictate revisions that must be addressed accordingly. Additionally, an institution must guarantee its anti-discrimination policy is readily available to all institutional personnel in written and electronic form, and that personnel know where they can access this information for reference. Further, institutions should require all personnel to acknowledge, in writing, receipt of the institution’s anti-discrimination policy upon the hiring of any personnel and at any time the policy is revised.
  • Reporting Systems: Reporting systems must be carefully devised to avoid situations where the victim would be uncomfortable with reporting a complaint. For example, an institution should provide an alternative means of reporting outside of a complaining party’s direct supervisor. Institutions should also encourage the prompt reporting of any complaints and should require the reporting of a discriminatory practice on behalf of another party, if witnessed. Furthermore, persons who receive complaints, should be obligated to follow-up, in writing, on any report received to ensure appropriate investigatory measures were taken. If the investigatory measures were insufficient, the party should take additional action to ensure appropriate investigatory measures are completed.
  • Investigations: Institutions must promptly investigate all complaints and properly document all investigatory actions. Further, if a proper investigation cannot occur internally, an institution should be prepared to hire an experienced outside investigator to conduct a thorough investigation. Once an investigation is complete, the institution must properly implement all recommendations by the investigating party and should continue to monitor the situation to ensure all discriminatory conduct has ceased.

Contact Justin P. Sievert (954-941-1844; jsievert@bucknersportslaw.com) for more information pertaining to Title VII compliance issues.