Jury Finds Insufficient Evidence of Sexual Orientation Discrimination By Pepperdine

On Friday a jury in California delivered its verdict in favor of Pepperdine University, citing insufficient evidence to support the plaintiffs' claim that that women's basketball coach discriminated against them when they were players on his team by singling their dating relationship out for scrutiny and prohibition. Pepperdine had argued that the coach was targeting their dating relationship for its effect on team chemistry, rather than the fact that the players were lesbians.

The jury apparently thought the evidence did not support the plaintiffs' version of the coach's motives, but the fact that the case even made it to a trial was notable in itself. That is because the plaintiffs sued under Title IX, which prohibits sex discrimination and does not expressly mention anything about discrimination on the basis of sexual orientation. But the court allowed the case to proceed by recognizing that sex and sexual orientation discrimination were conceptually entwined. Even though the plaintiffs did not win at trial, the fact that a court agreed that Title IX covers sexual orientation discrimination will likely help future plaintiffs challenge sexual orientation discrimination they may face in athletics and other aspects of education where Title IX applies.

I know that lots of coaches, mainly in women's sports, have concerns about the effect of teammates' dating relationships on team chemistry. Even though Pepperdine prevailed at trial in this case, the fact of Title IX's potential application to sexual orientation discrimination means there is still a legal reason for coaches to be careful about how they regulate team chemistry -- as well as ways they can do a better job than Pepperdine to potentially avoid this kind of litigation in the first place.  For one thing, coaches that are concerned about team chemistry should address all kinds of relationships that could cause problems besides players in same-sex relationships with each other.  This could include players dating student managers and trainers, whether same- or opposite-sex, teammates on different-sex teams that practice and travel together, and close friendships that have the potential to be clique-ish and divisive. Secondly, coaches should be clear that they are regulating behavior during time that is relevant to the team (practice, competition, travel, team meetings and events), not the relationships per se. If a coach is worried that dating players will seclude themselves from the rest of the team, or bring drama and division in the event of breakup, then that is what the coach should regulate, not the relationship itself. Moreover, it should be clear that these conduct expectations apply when the players are on "team time."   Here is a good example of these principles in a model policy posted by NCLR.