Friday, March 15, 2013

Appellate Court Reinstate Female Referee's Sex Discrimination Case

Tamika Covington is a high school basketball referee in New Jersey and Pennsylvania.  For several years, she has been litigating for the right to officiate boys' games as well as girls' games.  She has sued the International Association of Approved Basketball Officials ("IAABO"), over its policy of assigning female officials to officiate at girls' regular season high school basketball games, as well as the New Jersey State Interscholastic Athletic Association (“NJSIAA”). Among other defendants, Covington also sued the Hamilton Township School District, one of the school districts in which she officiates.

Yesterday, the U.S. Court of Appeals for the Third Circuit ruled in Covington's favor that she could continue to litigate against these defendants, overruling an earlier decision of a lower court that had dismissed Covington's case.  The favorable ruling, however, was limited to Covington's claims under Title VII, the federal law prohibiting discrimination in employment, and did not extend to her Title IX claim.  At issue for purposes of the Title VII claims was whether Covington had an employment relationship with these defendants, and the court of appeals agreed that she did. Hamilton School District has influence over the officials' work assignments, it chooses the time, date, and location of the games, and pays the official, making it an employer for purposes of the regular season.  For similar reasons, the NJSIAA is considered an employer for purposes of the post season.  And the IAABO is potentially liable under Title VII because even though it does not directly employee officials, it operates like an employment agency, facilitating officials' work assignments. Now that the appellate court has concluded that these defendants are governed by Title VII, Covington will be able to argue that policy restricting her assignments to boys' games violates the law -- an argument on which she seems likely to prevail. 

While this decision is overall favorable for Covington, there is one aspect in which it bothers me.  The appellate court ruled in a footnote that Covington could not simultaneously bring a Title IX claim against the Hamilton School District because she did not allege "an official policy of discrimination at Hamilton and does not allege that an individual with authority to address the discrimination had actual knowledge of the discrimination."  But the court does not acknowledge that Gebser v. Lago Vista Independent School District, the case cited as authority of these requirements, was a sexual harassment case, and sexual harassment is treated differently than direct discrimination when it comes to imputing liability on the school district.  It makes sense to require notice in harassment cases because harassment would otherwise be concealed.  But plaintiffs should not have to allege notice in cases involving open and obvious, direct discrimination.  This point has been argued (successfully) in cases involving disparities in men's and women's athletics programs, and the notice requirement is equally irrelevant in hiring/employment cases like this one.

Since Covington can proceed alternatively under Title VII, this footnote isn't going to really get in her way.  But there it sits, a potential source of confusion in future cases, and that's too bad. 

Decision: Covington v. International Association of Approved Basketball Officials, 2013 WL 979067 (3d Cir. Mar. 14, 2013).