Former Harvard coach alleges sex discrimination in federal lawsuit

  Over at my other blog, I have been writing about the "retirement" of women's ice hockey coach, Katey Stone in 2023 amid allegations of racism, body-shaming, and overall toxic culture. This is the piece I wrote specific to Stone's announcement that she has filed a federal sex discrimination lawsuit against Harvard University. 

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Well The Boston Globe published the news (paywalled*) behind former women's ice hockey coach Katey Stone's press conference two hours before the conference The surprise factor was gone by the time I tracked down the clips. The two pieces of the press conference (Stone's lawyer's remarks and Stone's remarks) can be found at Hockey News. Some former players spoke as well but I have not seen those clips yet. 

There is plenty to say about this lawsuit and press conference. 

First, looking back at my predictions, I should have placed more emphasis on retribution than on moving forward with "apologies." Most of today was digging in to "truths." There were no apologies. There was some very interesting running around the allegations though. More on that below. 

It was very clear that Stone is irate that she was not allowed to speak back in 2023 when everything went down. I am not positive that she believes coming to her defense would have saved her job and reputation, but I think she believes that. She ended her remarks with "my voice will at last be heard."

Second, I am sure there is some merit to this discrimination lawsuit. The lawsuit alleges sex discrimination based on differential treatment including pay. Stone said in her remarks that the AD, Erin McDermott, told her privately that this (the Globe investigation that compelled Harvard to do an external investigation) would not be happening if she were a man. Maybe. But it is not as if men have not been fired for abusive behaviors. Maybe that statement is true at Harvard--which is all that Stone has to prove since she is not suing SPORT--just Harvard. 

It also alleges that she was subject to more stringent standards than men in the department. I assume that this is in regard to the allegations that she would punish players unevenly for infractions--including an athlete who was driving under the influence. Apparently men coaches are allowed that leeway. 

This gets to a larger issue that I have tried to tackle when writing and thinking about coaching behaviors. These standards for what is acceptable in coaching are just whack. Why do we continue to accept this behavior in coaches? 

Words like "respect," "dignity," "good character," and "integrity" were used at the press conference by Stone and her lawyer, Andrew Miltenberg. If you want to prove that you are those things and are capable of teaching those things, you need receipts. Maybe the women who were sitting behind her were the receipts. But I find nothing dignified about yelling at athletes in anger or ignoring their injuries or body shaming them (an unaddressed allegation). 

Third, Harvard has a lot of blame to bear. Differential treatment to coaches means athletes are certainly receiving differential treatment. But if anyone is letting any athlete who commits a crime (DUI) continue to be part of Harvard athletics then that's just a different level.

The pay differential is going to be a tough one though. Courts have allowed differential pay between men and women coaches because schools come up with rationales about money brought in from camps and endorsements and a bunch of other factors including market value. I would love it if this case changed some of those precedents.  But I think Stone will actually have better luck saying that Harvard would not have fired a man for the same (bad) behavior. 

This brings me to the speculative part of this post: what is Harvard going to do with that unreleased external investigation report? I assume it has some damning information about Stone that they would use in a trial to justify their actions. (Also big sticking point that she actually "retired" officially. Note to others who are experiencing job discrimination--make them fire you!) But I assume it also shows that some of these behaviors went unchecked for years. That puts Harvard in danger of a lawsuit from former players. My ultimate prediction is that there will be a no-fault settlement and that no one will be allowed to speak about it and the details of that report will remain buried. And Stone's desire that her voice will be heard will go unfulfilled.

Finally, I want to talk about a few ick moments from the press conference.

One--the throwing of women of color under the bus. Miltenberg's remarks called out Dr. Claudine Gay who led the internal investigation when she was dean of Arts and Sciences. He suggested that she has brought down the reputation of Harvard recently implying that her investigation could not be considered reliable. He also mentioned the phrase Stone used that triggered the internal investigation. He said that the phrase about Indians and chiefs "may offend some people notwithstanding that it's a common phrase." That is the non-apology I was expecting. He is dancing very carefully around accusations of wokeness. It is disappointing when proponents of Title IX fail to check their white privilege and downplay racism to bolster claims of sex discrimination. 

Stone did some dancing too: around the allegations that she ignored and/or exacerbated players' mental health concerns. After saying that the mental health crisis is real she talked about the difficulty as a coach trying to find a balance between pushing too hard and "affirming mediocrity" and that "cultural norms make it more difficult to set a high bar." She characterized her program as one of an "earn it" mentality not an "entitlement mentality." If someone can get Stone to talk without a script in front of her (I'm looking at you podcasters!!), I bet with very little prodding she would go off about "kids today" and their lack of resiliency and sense of entitlement. 

I am curious about one thing. Every other case of sex discrimination in which gay women in athletics have been fired/dismissed (e.g., Iowa, Minnesota-Duluth) also alleged sexual orientation discrimination in their lawsuits. Maybe there is just no evidence of that in this case, but it does not follow the strategy I have seen about throwing everything into a lawsuit to see what sticks. 

I may be done with this story for now. But who knows--something interesting could happen next week and I will back with more lukewarm takes. 

 

* The Wall Street Journal was actually first to this story. Theirs is also paywalled. 

New rule: No passing around bad coaches

Art Briles, former Baylor head coach, dismissed as part of the house cleaning (that was largely a PR move) in the wake of the sexual assault scandal (see Baylor tag for more details if you are not familiar or this ESPN timeline) got a job! He was hired in February as the offensive coordinator for Grambling State University, an HBCU in Louisiana. Briles has been away from college coaching for six years now.* 

And he will continue that streak because he stepped down from that position after significant backlash in the wake of his hiring. He lasted three days; which is two and a half days longer than his stint with the Hamilton Tiger-Cats of the Canadian Football League in 2017. 

I find it heartening when people push back strongly enough to prevent those who should not be given "second chances" from getting jobs in which they can continue to do damage. I find it disheartening that 1) institutions still offer these jobs in the first place and 2) that these decisions also receive praise (see this article that details communication to and from Grambling folks after the announcement of the hiring).

Grambling State did not have to walk back the offer because Briles officially resigned. But apparently learning nothing from this incident, they turned right around and offered the job to John Simon, who had previously coached at University of Memphis. Simons left the Memphis staff weeks after being placed on administrative leave in 2021 in the wake of a Title IX and sexual assault complaint. Grambling head coach Hue Jackson had already brought on Simon has an assistant coach, but elevated him to offensive coordinator when Briles resigned. 

It is not a done deal. however, because Simon needs to be approved by the University of Louisiana System board at their April meeting. A spokesperson for the UL board said it was not a rubber-stamping organization and that it would scrutinize the candidate. The UL system, however, is not a shining example of how to handle Title IX issues, so I suspect that they will come out with something like "he denies all allegations against him and was never criminally charged, so he's in!" 

This situation at Grambling demonstrates, to me, the need for some rules regulating the hiring process of collegiate coaches. The system, for all coaches--not just football, is so steeped in all the inequities that is is hard to know where to start. 

My suggestion: don't hire coaches with histories of Title IX and interpersonal violence complaints. The SEC and other conferences and/or schools have this policy as it pertains to athletes,** so why not coaches? As we approach the 50th anniversary of Title IX's passage, I have been thinking more and more about how to improve on the law's application; what other ways can it be used to ensure equity. This seems like an easy one. 

* He has coached at the high school level though. This is a somewhat tangential, but quite fascinating, article about his first season at Mount Vernon High School in Texas. 

** Rumor has it that the NCAA is looking to implement a policy where ALL intercollegiate athletes have to be vetted for violent crimes, including interpersonal violence and sexual assault. I hope to find out more about this and post about it soon. 

UMD Liable for Front Pay in Retaliation Case

Last year when a jury ruled in favor of Shannon Miller in her lawsuit against University of Minnesota-Duluth, it awarded her nearly $3.75 million in compensation for past damages after it concluded that the university terminated her with unlawful retaliatory and discriminatory motives in violation of Title IX and Title VII.

Left unresolved at the time was how the university should remedy her present and future injury of present and future remedy, which Miller argued should be addressed by an order requiring the university to reinstate her to her former position. In the alternative, she argued for a a front pay award of $3 million.  A federal court judge ruled on her motion this week. He determined that reinstatement was not an appropriate remedy due to the position having already been filled. The current coach is now in her fourth season and most of the current players have been recruited by her. Accordingly, it would be unduly disruptive to reinstate Miller to her former position. Instead, the court agreed to a monetary alternative in the form of front pay.

Front pay is an award of damages that in unlawful termination cases that requires the factfinder to determine what the plaintiff would earn from the date of the verdict going forward if they had not been fired (back pay, in contrast, compensates the plaintiff through the date of the verdict). It then takes into account what the plaintiff is earning in whatever new job they may have, and if that is less, awards the plaintiff the difference. The court did not agree with Miller's speculation that she would have worked at UMD for 12-15 more years from the date of verdict; pointing out that 30-year tenure for any Division I head coach is rare. But nor did the court accept UMD's position that Miller was fully compensated by the back pay award Miller had already been awarded. Instead, the judge found sufficient evidence that Miller would have worked at UMD for another five years from when she was terminated. Her front pay award was therefore calculated at her UMD salary from the date of the verdict through June 2020. Then it was offset by the $30,000 Miller earns annually as the head coach of the Calgary Inferno professional women's hockey team. The total, $461,278, brings UMD's total liability to around $4.2 million.

One thing that I found noteworthy about this opinion is the particular role that Title IX played, relative to Title VII, in driving the damages award in this case. The judge's opinion on front pay noted that the plaintiff was not entitled to damages or reinstatement on her Title VII claim, even though the jury found that sex discrimination had been a motivating factor in her termination, because the jury had found evidence that UMD would have fired Miller anyway. Under Title VII, a so-called "mixed motive" finding like this limits the plaintiff to only declaratory relief and attorneys' fees. Title IX, however, is not governed by the mixed-motive provision of Title VII, so damages are allowed even when university defendants demonstrate that a non-discriminatory or non-retaliatory reason would have led them to make the same adverse employment action.

Decision: Miller v. Bd. of Regents of the Univ. of Minnesota, 2019 WL 586674 (D. Minn. Feb. 13, 2019).

Gender Disparity in Coaches' Chartered Flights at University of Iowa and Iowa State

Some good investigative reporting in Iowa led to this recent article about the gender imbalance in athletic department travel at University of Iowa and Iowa State. Both institutions benefit from wealthy donors who offer up their private planes for coaches to take on recruiting visits, to meetings, and for other work travel.  Yet these donations overwhelmingly favor the coaches of men's teams -- of UI's 54 donated charter flights in the last year, only 1 was to the coach of a woman's team. And it's not like the institutions use other funds to close this gap, paying for (non-donated) charter flights for men's teams coaches more often than charter flights for their coaches of women's team's.

I talked to the reporter for this story and shared some thoughts about the Title IX concerns raised by this disparity. I explained that the fact that the flights are donated does not absolve the university of the gender disparity that results from the donations. Because they benefit a university program, the donated flights are considered by law to be donations to the university. Though the donations themselves might be earmarked for a certain team or coach, the university is still responsible for the equal treatment of its men's and women's programs. If it uses donated money (or, as in this case, donated flights) to benefit only teams of one sex, it has to find other money to balance to provide the equivalent benefit to teams of the other sex.

There are two aspects of Title IX that may be implicated by this imbalance. First, one of the aspects of Title IX's requirement for equal treatment of men's and women's teams is the quality of the coaching they receive. A coach who takes charter flights does not have to spend time driving between Iowa City and the airports in either Cedar Rapids or Moline, factoring in extra time for the security line, waiting out layovers, enduring delays or any of the other time consuming aspects of commercial travel. This leaves the coach with more time and energy for coaching duties: he is more likely to make it back for practice, he can fit in more recruiting stops into a season, he can partake of more professional development opportunities. In short, that team gets more of their coach and thus, a higher-quality coach. A university that eases the path for men's coaches, but leaves up those obstacles for women's coaches, is treating its male athletes better than its female ones.

Second, the disparity is sex discrimination in the terms and conditions of coaches' employment. Because only men coach men's teams, men disproportionately benefit from the perk of taking charter flights. The challenges of commercial travel can create personal inconveniences as well as professional ones, and male coaches alone are spared from that grief. As a result, they may have an easier time making time for family or a personal life. Maybe, if women's coaches were paid more in base salary than men's coaches, there would be an argument that this disparity in chartered travel does not amount employment discrimination, but of course we know that is not case.

As the article notes, University of Iowa is currently under an OCR investigation into the athletic department's compliance with Title IX. Recruiting appears to be an area the agency is looking into, but no findings have yet been made.

Court Denies Motion to Dismiss Lawsuit Challenging SUNY Albany's Termination of Women's Tennis

After SUNY Albany cut its women's tennis team in 2016, several former players, along with the team's coach, Gordon Graham, sued the university alleging discrimination in violation of Title IX. Last week, a federal court in New York denied the university's motion to dismiss Graham's claims that the decision amounted to sex discrimination against him, while also denying the former players' motion for summary judgment in their favor.

In its motion to dismiss Graham's claim, the university argued that terminating the women's tennis team could not in any way be considered sex discrimination against Graham, a male coach. But the court disagreed. While it's true that the university's decision to cut the women's tennis team was not motivated by Graham's sex, it may have been motivated by the sex of the athletes on the team. This act of alleged sex discrimination injured Graham as well, by costing him his job, making it  actionable injury under Title IX, the court reasoned. Graham adequately alleged an act of sex discrimination, and he alleged that the act in question caused him harm.

As for the players' motion, they argued that because in 2017 OCR found SUNY Albany's decision to eliminate women's tennis violated Title IX, there was no issue of fact requiring litigation, permitting the court to rule in their favor early in the litigation process prior to trial or even the taking of discovery. The court disagreed with this argument as well, concluding that the agency's findings could not make the university automatically liable as a matter of law. The university did not challenge the agency's findings, but instead, agreed to resolve in them without the benefit of adjudication, and in an agreement that specifically disclaimed any admission of liability. Thus, the court ruled, the university should at least have the chance to enter evidence that could potentially demonstrate that a disproportionate balance of athletic opportunities nevertheless complies with Title IX. I believe that the former players still have a very strong case, since cutting a viable team is usually strong evidence of unmet interest of the underrepresented sex. But also, it made sense for the court to insist that they make their case based on a record produced during litigation, rather than automatically import the findings of OCR.

Pejovic, v. State Univ. of N.Y. at Albany, 2018 WL 3614169 (N.D.N.Y. July 26, 2018).

Jury Awards Coach Shannon Miller $3.74 Million

A federal court jury in Minnesota determined today that the University of Minnesota-Duluth was motivated by sex discrimination and retaliation when it decided not to renew the contract of former women's hockey coach Shannon Miller.  As a result, the university violated Title IX and is liable for $3.74 million in damages. This figure includes $744,000 to cover Miller's past lost wages and $3 million to compensate for her emotional distress. 

Though the university argued that Miller was not renewed for performance reasons, Miller's presented evidence that convinced the jury that she was actually let go because she was a strong advocate for her team and that that athletic department employed double standards when making employment decisions about male and female coaches. 

Some of our past blog posts about this case are here, here, and here.

University of Minnesota-Duluth to Face Trial on Coach's Sex Discrimination and Retaliation Claims

Last week the federal district court in Minnesota ruled on the University of Minnesota's motion for summary judgment  in a multi-count lawsuit filed against it by three female former coaches at the Duluth campus, who had alleged a variety of discrimination claims arising from their employment. Though the court granted summary judgment on several of the plaintiffs' claims, it refused to dismiss Coach Shannon Miller's claim that sex discrimination motivated the university's decision not to renew her contract, and her claim that the university retaliated against her for raising Title IX concerns. Those issues are now heading for trial scheduled in March.

Sex discrimination. UMD defended its decision not to renew Miller's contract on two grounds: the poor performance of the women's hockey team, which Miller coached, and the lack of "return on investment" for continuing to pay Miller's relatively high salary. Yet the court acknowledged, there is sufficient evidence that jury could conclude that these explanations were in fact pretext for sex discrimination. Specifically, the court identified: (1) evidence that the men's hockey coach was retained comparable or worse performance of his team; (2) evidence that the department used different criteria to evaluate Miller's renewal than the renewal of the men's team's coach; (3) the fact that the department gave inconsistent explanations for Miller's nonrenewal (saying first it was because of finances, then later arguing it was based on performance); evidence that the university's financial situation "was not as dire as it claimed"; and (5) the fact that the department did not pursue alternatives to nonrenewal that would have been consistent its ostensible concern about finances, such as asking Miller to take a pay cut or seeking donors to fund her salary. 

Retaliation.  The court also concluded there was sufficient evidence on which a jury could conclude that the university had retaliatory motives, in addition or instead of a desire to get rid of Miller because of her sex. Miller engaged in protected conduct by complaining to athletic department administrators about Title IX violations that affected her team. These complaints "continued until shortly before" the athletic director decided not to renew her contract. This timing, along with other evidence, could convince the jury that UMD terminated Miller to punish her for advocating for Title IX.  

Hostile Environment Based on Sexual Orientation. The court dismissed the claims of all three plaintiffs that the athletic department cultivated and tolerated a hostile environment on the grounds that they are lesbians.  After acknowledging that these claims were "strong" the court nevertheless dismissed them on the grounds that federal law does not expressly prohibit discrimination on the basis of sexual orientation. (While Minnesota law does prohibit sexual orientation discrimination, the court concluded that it did not have jurisdiction over these state law claims.) This seems like an appealable issue to me. The nearby Seventh Circuit has reasoned that sexual orientation discrimination is a form of sex discrimination, and other circuit courts may be on the verge.  An appeal here could give the Eighth Circuit Court of Appeals an opportunity to get on board with this emerging and civil-rights expanding interpretation of sex discrimination under Title VII and Title IX. 

Equal Pay. The court also dismissed Coach Miller's Equal Pay Act claim. Even though she was paid less than her men's team counterpart, a male, the court nevertheless determined that his job was not comparable to hers because the men's hockey team draws a bigger audience, more revenue, and as a result puts more pressure on him to win.  This outcome is disappointing but not surprising as other female coaches' equal pay act claims have failed due to judges' unwillingness to see equivalence between coaching women and coaching men. Unfortunately, the rationale permits sex discrimination in the marketplace to justify lower salaries for female coaches who work just as hard and have no control over the public's bias.  

Decision is: Miller v. Bd. of Regents of the Univ. of Minn., 2018 WL 659851 (D. Minn. Feb. 1, 2018).

Community College Coaches Challenge Gender Pay Disparity

Three female coaches in California recently filed a lawsuit against the State Center Community College District to challenge gender discrimination in pay and job responsibilities that affect them as coaches at colleges operated by the District. One of the plaintiffs, Rhonda Williams, is head coach of the Fresno City College women's softball team and assistant coach of its golf team, while two others, Kathleen Kuball and Shannon Jeffries, coach at Reedley College in softball and volleyball respectively. They allege that while they have comparable or even more job responsibilities than their male counterparts, they are paid less because the District calculates compensation based on the number of "duty days" each coach is assigned and then assigning female coaches fewer duty days. They allege that this practice is a part of an overall pattern of discrimination against the women's sports programs in the District. The complaint alleges that this discrimination affects female athletes as well, and that it constitutes a violation of Title IX as well as state law.

These coaches join a growing list of others who have used Title IX and other related law (state law, Equal Pay Act, Title VII) to challenge discriminatory conditions in their employment. In fact, it was other coaches from Fresno -- at nearby Fresno State -- whose famously successful lawsuits in 2006-2007 kicked off what appears to the current trend of coaches going to court to fight for equality. Today, sex discrimination lawsuits filed by coaches are more common than those filed by athletes (probably because coaches incur more economic damages and hold their jobs for longer than students are athletes). Often, however, these lawsuits expose discriminatory practices that affect athletes and can lead to systemic change.

University of Iowa enters into voluntary resolution

The University of Iowa has entered into a voluntary resolution with the Office of Civil Rights 20 months after the investigation by the agency into a complaint of disparate treatment of male and female student athletes.

The complaint was filed by members of the field hockey team and part of a larger confluence of events which involved the firing of long-time field hockey coach Tracy Griesbaum and the removal of her partner, senior athletics administrator, Jane Meyer from her position immediately after Meyer complained about gender equity in the department.

The University has framed the resolution as a victory noting that the investigation revealed no violations, but only disparities in treatment in the areas of  equipment, recruiting, and locker rooms. The University will have to submit reports in April and June which state how they will address these disparities. They must also, by the end of this month, explain how they were in compliance in 2016-17. I am interested in seeing that report.

Two thoughts on this "resolution." First, claims of victory based on disparities versus violations borders on offensive in part because of the culture of the department (more on that below), the history of inequitable treatment, and because disparities are violations. The law mandates equitable treatment across genders. To have a disparity means there is not equitable treatment.

Additionally, these are disparities that have been around for years and years. In the early aughts I served, as a graduate student, on the Gender Equity Subcommittee charged with assessing equity as part of the NCAA's (now defunct) accreditation process of DI schools. We heard about the same things: lack of recruiting dollars for coaches of women's teams, inequitable facilities and equipment and access to them; and more. There is no amount of elapsed time that results in a disparity becoming a violation (in part because of the semantics I mentioned above). But certainly for Iowa to tout lack of violations when these disparities have been persistent and ongoing, seems inappropriate--at best, and borders on offensive.

Two, I fear that the fact of OCR finding no violations means Iowa is (nearly) good will do little to address the atmosphere in the department in which women--as athletes and administrators--continue to face discrimination. This atmosphere has been maintained--if not created--by athletics director Gary Barta who seems to be doing little to address the situation beyond what he is required to do.

I note here that the first complaint filed by the field hockey team members was about how complaints against female and male coaches were handled differently by the department was never investigated. There are several examples* of members of the football coaching staff endangering the health and safety of their athletes with no repercussions. While the University cannot deny its loss in the Jane Meyer case, which resulted in a jury award, the settlement with Griesbaum means they admit no guilt. This is all to say that there are issues in Iowa athletics that extend beyond locker rooms, equipment, and recruiting. I imagine many at and associated with the university are disappointed in this "resolution."

Also a note about the first article linked above which was the only I found about the resolution agreement: it incorrectly states that compliance with Title IX is measured by the three-prong test. As we have written repeatedly, the test measures one aspect of  compliance: participation. I would argue that these misunderstandings that compliance is only about numbers of athletes is part of the reason why people do not see inequitable treatment (i.e., quality of experience) as a violation/non-compliance.


* Including the choice to keep an injured quarterback in during a bowl game Iowa was losing badly; an example cited by a former ESPN analyst in a story about why he left his job when he felt complicit in the violence done to football players.

Iowa settles for $6.5 million

The University of Iowa will reportedly pay $6.5 million to avoid further litigation in the discrimination lawsuits filed by former associate athletic director Jane Meyer and former field hockey coach Tracey Griesbaum.  Griesbaum's lawsuit, which had been scheduled for trial next month, alleged that she was wrongfully terminated and that the athletic director had a pattern of firing female coaches. Meyer, Griesbaum's partner, successfully convinced a jury earlier this month that she was fired in retaliation for complaining about that and other examples of sex discrimination within the department. The jury had awarded Meyer $1.45 million, but this amount was subject to increase if the court decided to award punitive damages. Under the settlement, Meyer will instead receive $2.33 million, Griesbaum $1.49 million, and their attorneys, $2.68 million.

As the settlement only affects litigation, it does not affect the ongoing investigation by the Department of Education into claims that the university violated the Title IX rights of Griesbaum's athletes when it fired their coach.

Coach Wins $3.35 Million Jury Verdict for Retaliation

Last week we blogged about the trial between San Diego State University and its former women's basketball coach Beth Burns.  Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team.

By way of update to that earlier post, we learned this week that the jury did not accept the university's argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages.

Though we haven't had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.

Title IX Retaliation Case Heads to Jury

This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired women's basketball coach Beth Burns in 2013.  At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins.  She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year.  Her past performance evaluations praised her for running a solid program and doing an "excellent job."

So why was she fired?  That is what the jury will have to decide after today's closing arguments summarize a month-long trial's worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coach's knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect.

Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the women's athletics, including her team.  Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining."

Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony?  Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coach's behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms?  (As one witness testified, "What most people call yelling, we (in athletics) call communication.”)

The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree.

Note: This is not the first retaliation case we've blogged about against San Diego State. In 2007, the university was sued by a former women's swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record!  Eventually the university settled for $1.45 million dollars.

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

New WSF Report Examines Gender Inequality in Coaching

Last week the Women's Sports Foundation issued a new report that examines gender inequality in the coaching profession. The report's authors surveyed over 2500 current and former coaches about their experiences and perceptions of the athletic departments in which they work, and revealed some surprising and some not-so-surprising results.

For example of of a not-so-surprising result, a significant minority of female head coaches (32%) perceive that men's teams other than football receive greater resources than women's teams. While football is certainly included in the Title IX analysis, separating it out for purposes of a survey paints an even more compelling picture of gender inequality. Yet, sadly, a third of female coaches also believed that they would put their jobs at risk if they spoke up about gender inequality.

The report also garnered data about how coaches view the equality in the terms of employment. A majority of coaches (male and female) agreed that it was easier for male coaches to get hired for high-level jobs, be awarded a multi-year contract, and successfully negotiate a raise.  Meanwhile more than 40% of female coaches reported that they had experienced gender discrimination in the workplace and a third perceived that administrators favored male coaches. Notably, the report also included some interesting comments about "reverse discrimination" -- the perception that being male is disadvantageous in the athletic department workplace. In fact, 40% of male coaches, compared to only 12% of female coaches, believed that they had not gotten a coaching job because of their gender. This is an interesting pair of statistics that I think says something about gender and entitlement. Women are unlikely to believe they were ever turned down for a coaching job because of their gender despite constituting only about 20% of college head coaches. One explanation for this is that they are not going after jobs in men's sports because they do not feel entitled to those jobs the way that men feel entitled to the coaching jobs in women's sports.

On the other hand, men have nearly all of the coaching jobs in men's sports and even a majority of the coaching jobs in women's sports, yet a significant percent of them still perceive that gender disadvantaged them in the hiring process. They made comments on the survey like, “I’m a white male and I can’t get the job because they have to hire a female or a minority. This is not right. The best candidate should be hired regardless of race or gender.” And, “I would do much better off professionally if I was a minority, handicapped, homosexual." They argue that "much less qualified" women "with less experience" are being hired instead of them.

Based on comments like these, one imagines the college coaching market flooded with applications from optimistic, overconfident women who are seeking jobs beyond their reach (and then managing to get hired for those jobs, no less.). There are a lot of gender stereotypes that pertain to hiring, but women being overconfident in their job applications is definitely not one of them.  I also have to wonder how many of these respondents are defining "experience" in a self-serving way, like assuming they receive equal "credit" for having a background in baseball instead of softball, or men's hockey instead of women's (despite the men's and women's sports having different rules).

Not surprisingly, therefore, the recommendations section of the report focuses primarily on the barriers to leadership that female coaches are confronting. For example, the report recommended that athletic departments conduct open searches by hiring committees to fill high-level vacancies, including head coach positions.  Departments should also have and follow policies that ensure job duties, evaluations, salaries, and other aspects of employment are handled without regard to gender. I also thought these two recommendations, aimed primarily at the NCAA, were particularly strong:

• National athletic governance associations should require member institutions to undertake a periodic certification program or other third-party peer review of the operation, processes and policies of its member institution athletic programs to ensure compliance with legal requirements and best practices, including the employment and compensation of coaches.

• National and conference athletic governance organizations should require that member institution athletic programs must establish policies that require a minimum number of qualified minority applicants to participate in finalist inperson interview pool for all coaching positions.

Coach Fired After Dismissing Dating Player From the Team

Last week, news broke that Prairie View A&M University fired its women's basketball coach after she enforced a no-dating policy against two players who were in a relationship with each other.  The players complained to the university that the policy was discriminatory and violated Title IX.  As coach Dawn Brown reportedly has appealed the decision within the university system, she and her agent have also decried it publically as unjust "scapegoating."

Some additional facts about the coach's actions make it less clear that her actions were discriminatory and unlawful.  First, the policy does not single out players from dating each other.  They are also banned from dating coaches, trainers, managers, and other people associated with the program. To be fair, if you isolate the aspect of the policy that addresses players relationships with each other you could conclude that it discriminates based on sexual orientation (since only lesbians would have those relationships).  But the policy as a whole is arguably neutral as to sexual orientation,since a straight player dating a male trainer would be just as vulnerable to dismissal as lesbian teammates dating each other.  To be clear, I can think of better ways to create a policy about intra-team relationships. but a conclusion that this policy discriminates against lesbians is surely no slam dunk.

Even if we read the policy as discrimination against lesbians, it's not clear -- at least to me -- that this was the reason she was fired.  For one thing, discriminating against lesbians doesn't necessarily violate the law -- as much as I'd prefer otherwise.  Texas does not prohibit discrimination based on sexual orientation, and Title IX only covers discrimination based on sex. While one lower federal court has so far endorsed a view that sex discrimination under Title IX includes sexual orientation discrimination, this is not a universal interpretation and one that is not binding in other jurisdictions.
So if Prairie View A&M's explanation is that the coach was fired for "violating Title IX" this is (I hate to say) a stretch.

Legal issues aside, the facts suggested by Dawn Brown to the media also raise questions about the university's motive.  She says that the policy was developed in consultation with the Title IX office, and that the Athletic Director was involved in the decision to enforce the policy against the players in question. If this proves true, this surely calls into question any explanation of Brown being fired over the enforcement of the policy.  And as we have learned from other cases involving terminated coaches, when a university's rationale for firing a female coach doesn't ring true, it is sometimes pretext for discrimination.

Field hockey coach files lawsuit & other Iowa updates

The long awaited lawsuit against the University of Iowa was filed today by former field hockey coach Tracy Griesbaum. As expected, the complaint alleges a department culture of discrimination against women and points places responsibility on current Athletics Director Gary Barta who has been in the position since 2006. (Barta's contract was just extended--see below.) Griesbaum is asking for her job back and that measures be taken to change the culture of the department.

Regarding the latter, the complaint cites the retaliation against female coaches who asked for improvements in conditions for female student-athletes, the firing of female coaches and replacement with male coaches, and different standards for male and female coaches in regards to behavior with athletes and win-loss records. The University released a statement supporting Barta in response to the filing.

Iowa settled a lawsuit brought by a former assistant track and field coach earlier this year. Mike Scott was a volunteer in the program and applied for a paid position with the program multiple times (there were several failed searches). He had a temporary contract, but ultimately lost the position to a woman. In his lawsuit Scott stated that the was told that the department wanted a woman to fill the position. The final search did indeed yield a female coach. It seems like this insistence on a female coach was an attempt to counter the ongoing allegations against female coaches that existed before Griesbaum's lawsuit. Scott received $200,000.

In other somewhat related Iowa news:
The faculty expressed their concern with the ways things are operating within Iowa's administration. The controversial process and selection of the new president, J. Bruce Herrald, a businessman with no experience in academic administration, already had faculty and other Iowa community members concerned. So recent moves by the administration, including the reappointment of Barta draw criticism all around and a public letter from the university's chapter of the AAUP.

Regarding Barta's reappointment, they noted that--according to AAUP philosophies of university governance--faculty are responsible for the welfare of students, including student athletes, Regarding the latter, there is a committee comprised of faculty members who look at and address issues in the athletics department and make recommendations. The Presidential Committee on Athletics also participate in job searches for staff members who work with student athletes.The PCA was not part of the decision to extend Barta's contract. From the letter:

Despite these directives that faculty be involved in important decisions involving student athletes, early this year your office extended the contract of Athletics Director Barta for an additional five years. There was no consultation with the PCA. This happened in a year in which — though there was impressive success on the playing fields — significant concerns were raised regarding gender equity in athletics. The university now faces investigation by the U.S. Department of Education in response to student athletes’ complaints.

The latest from Iowa

The Iowa Civil Rights Commission has been investigating the 2014 firing of field hockey coach Tracy Griesbaum. The results, issued in early December in a brief report by the commission, clear the path for Griesbaum to file discrimination lawsuit against the university. It is expected she will do so in the next few weeks. The report states that there was a "reasonable possibility" that the coach's dismissal was a result of gender discrimination and that the university has not provided evidence that her dismissal was the result of a combative nature (one of the university's claims for her termination).

In related news, the complaint filed by four current and former field hockey players in the wake of Griesbaum's firing will bring OCR to Iowa City some time this spring. Though the complaint deals specifically with the treatment of female coaches, OCR will assess the entire program and could issue a report on, in addition to coaching, things such as access to facilities and medical care, availability of practice times and equipment, quality of travel and competition. In other words, this visit is not just about whether there is discrimination against female coaches, it will be about whether there is equal treatment in the department. What we have seen is that when there is disorder in one part of the house, there are usually messes elsewhere. The university may be working hard on its defense in the presumed Griesbaum lawsuit, but the athletics department should also be doing an assessment of the overall state of the department and making proactive (in terms of an OCR visit; obviously things should already be in order) moves to demonstrate to OCR that they are committed to achieving equality in the department.

Tennessee Athletics Staff Settle Retaliation Suit for $750,000 + Fees

Three former members of the University of Tennessee Athletics Department staff have settled a lawsuit, ongoing since 2012, that challenged pay disparities between their positions that worked with female athletes and those doing the equivalent job for male athletes.  They had also alleged that athletic department officials retaliated against them when they complained about pay discrimination.

Under the terms of the settlement, the university will pay each of the three plaintiffs -- former associate director of sports medicine, Jenny Moshak, and two former strength coaches Heather Mason and Collin Schlosser -- a combined total of $750,000, and will also cover the plaintiffs' attorneys fees, which are estimated to add to another quarter-million to price tag of the settlement.

This case is a good reminder of the various ways that sex discrimination can manifest in athletics. On the one hand, paying the trainers and coaches who work with female athletes less than those who work with male athletes reflects a devaluation of women's athletics, which affects not just women, but men like Schlosser who work in women's athletics as well. On the other hand, the plaintiffs' had alleged that the existence of a "testosterone wall" that kept women from being considered for the more lucrative staff positions working with male athletes.  So women were additionally disadvantaged in that way as well.

Notably, this lawsuit was not the only one that alleged sex discrimination in Tennessee athletics back in 2012.  The other case, filed by the former Lady Vols media director who alleged she was squeezed out because of her sex when the University merged its men's and women's athletics department, had already settled in 2014 for $320,000.

Duluth Coaches and Students File Title IX Complaint

A group of four former student athletes, one current student athlete, and three former coaches have filed a complaint with the Department of Education's Office for Civil Rights challenging widespread sex discrimination within the athletic department at the University of Minnesota-Duluth. The former coaches -- Shannon Miller, Jen Banford, and Annette Wiles -- are also plaintiffs in a lawsuit against the university challenging sex- and sexual orientation- discrimination that resulted in the termination or forced resignation of their jobs.  But the OCR complaint alleges even more widespread sex discrimination that affects students and coaches alike.

Allegations in the complaint include the following:

• women's ice hockey team has a smaller operating budget (by over $270K) than its male counterpart
• women's softball team was forced to have tryouts in order to pad the number of female athletes reported for gender equity purposes, then the department made the coach cut those extra players for budgetary reasons 
• some female athletes were fraudulently reported as participants in multiple sports
• men's basketball team is allowed to carry redshirt players, while the women's team is not
• the department has terminated female coaches, depriving female athletes the opportunity to receive coaching of high quality
• the department provides men's teams coach with resources like vehicles, a restaurant expense account, and support staff, that are not provided to the women's coaches on equal terms. 
• the men's basketball team has a locker room five times larger and of superior quality than the locker room for women's team
• the men's hockey team is provided with resources like snacks, meals, travel funds to tournaments that were not provided in equal measure to the women's team. 
• the women's basketball team had fewer games and travel opportunities than the men's team; the women's team had to fundraise for travel and the men were not
• men's teams had bigger budgets for recruiting, more equipment and uniforms, and medical equipment denied to women's teams
• female athletes have fewer opportunities for scholarships, such as funding to enroll in special May term, J-term, and summer semesters that male athletes receive
• the department does less promotion for female teams than its male counterparts, among other examples, it tweeted about men's hockey 309 times compared to 69 tweets about women's hockey

OCR will now consider whether to open an investigation (it likely will).  If the allegations are validated, it is very hard to imagine how they could not constitute violations of Title IX. While it is not necessarily a violation to have a disparity in treatment between men's and women's teams in the same sport, it is a violation when the athletic department's pattern is to select the women's team for inferior treatment all or most of the time.

Former Iowa Athletics Administrator Files Retaliation Suit

Jane Meyer, a former senior associate athletic director, sued the University of Iowa last week, alleging that she was demoted in retaliation for complaining about the termination of the field hockey coach in 2014.  The coach, Tracy Griesbaum, is Meyer's partner.  As we have noted already on the blog, Griesbaum was fired last year after some of her players complained that she was verbally abusive, but Griesbaum and her supporters say that her termination reflects a double standard that punishes female coaches for behavior that is tolerated and even expected in men's sports. The Office for Civil Rights is currently investigating whether Griesbaum's termination violates Title IX.

Meyer, meanwhile, who had worked in Iowa's athletics department since 2001,was transferred out of the department and reassigned to a job in facilities the very day after she presented the Athletic Director with a written complaint challenging the discrimination against female coaches and other women in the department.  The university claims that her transfer was necessary to avoid a conflict that Meyer would have in the event that Griesbaum sued the Athletic Department (which hasn't happened yet).   

In addition to challenging the alleged retaliatory demotion, Meyer's lawsuit also alleges that she was the victim of sex discrimination while she worked for the department when she was passed over for promotion to deputy director despite her qualifications for the job.  She also alleges that she was paid substantially less than male administrators with comparable jobs.   

Meyer's lawsuit was filed in state court. Notably, Iowa's employment discrimination law expressly covers discrimination on the basis of sexual orientation.  Meyer reportedly seeks reinstatement to her former position, back pay to account for sex discrimination related to her salary, and an external review of the department's demotion and hiring decisions.