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.

Testimony about equitable treatment

There have been quite a lot of personal testimonials about individuals' experiences with Title IX in the months preceding and since the 40th anniversary.
I wanted to share a piece of this one by Jennifer Imsande because it was not just about how sports generally benefited her (in career or schooling or relationships or life lessons--themes of many other testimonials). Imsande talks about the specific benefits Title IX afforded her as an athlete in pursuit of athletic success.
I've only ever experienced sport as both possible and accessible. My high school canceled classes when my basketball team went to the state tournament. In college I received expert coaching and flew on airplanes to get to meets — where, if my Achilles tendon started acting up, I could use the team massage therapist or trainer. 

These are examples of the equal treatment Title IX mandates. We have been on kind of an equal treatment push during this anniversary coverage because we want people to realize that Title IX is not just about opportunities but about the quality of the opportunity. More and more complaints and/or lawsuits have focused on equal treatment measures (in addition to those mentioned by Imsande there are issues like uniform and equipment quality and age--and who pays for it; quality of competitive experience; quality of coaching; access to facilities--and the quality of facilities).
Obviously the issue of opportunities is still one that needs attention. But the experience of the girls and women who are receiving opportunities needs to be assessed as well.

Tennessee Rejects Equal Pay for Women's Athletics Officials

The Washington Post reports that the University of Tennessee recently rejected an internal complaint filed by three employees of women's athletics, arguing that their salaries were discriminatory because they were less than their counterparts in men's athletics. The employees held the positions of Athletics Director for Women’s Sports Medicine, Assistant Athletics Director for Women’s Strength and Conditioning, and the Associate Director for Women’s Strength and Conditioning, until the recent merger of men's and women's athletics at Tennessee.

The University of Tennessee's Office of Equity and Diversity denied their pay discrimination claims after determining that these positions in women's athletics were not comparable to the equivalent positions in men's athletics to justify equal pay. Specifically, the Office stated that due to the financial importance of football to the university, the sports medicine/strength & conditioning employees in men's athletics had a more important job because it mattered more financially that male athletes were healthy:

Football overwhelmingly is the top revenue-generating sport in Athletics and the sport that generates the most fan interest,” the report says. “If the University’s football team is successful, then the entire Athletics program reaps the monetary benefits. If the University’s football team is unsuccessful even partly because football injuries are not being prevented, diagnosed, treated and rehabilitated successfully, then the entire Athletics program suffers. “With no disrespect being intended to Ms. Moshak [Athletic Director for Women's Sports Medicine], Mr. McVeigh’s position [Director of Men's Sports Medicine] is more important to athletics because of his football-related responsibilities."

With this statement, the University of Tennessee declares its true intentions in running an athletic department -- not, as its mission statement conveys, to enrich the education of student athletes, but to exploit the revenue-generating potential of certain sports. Aside from being hypocritical and morally void, this position also suggests that the University is (or was in the recent past prior to the merger) violating Title IX with respect to its athletes, as the law requires equal treatment when it comes to "medical and training facilities and services." And the law contains no exception for football or any sport because of its capacity to generate revenue.

Nor is it clear whether football's revenue justifies paying men's medical and training staff more. If this case made its way to the EEOC, the federal agency that enforces Title VII and the Equal Pay Act, it would consider whether the medical and training staff that McVeigh oversees is comparable in size to Moshak's. Yes, it may take more work to keep the football team healthy, but if you get a larger staff as a result, you can't use "football takes more work" as a justification for unequal pay. Another factor that the EEOC would consider is whether men's and women's athletics received equal opportunity to generate revenue. If the university allocated fewer resources to market and promote women's teams, it can't use the fact that men's teams bring in more revenue to justify pay disparities between men's and women's athletics.

The article does not suggest what's next for this case. Now that the university's decision is final, having been approved by the President on internal appeal, it will be interesting to see if the employees press their claims with the EEOC. And though its less likely, it would be even more interesting to see if someone presses the disparity in medical training as a violation of Title IX.

Does OCR have an Alaska office?

Hope so, because they received a Title IX complaint about the University of Alaska, Anchorage this past summer. The complainant(s) remains anonymous for now and the athletic department is incredulous.
Says Athletic Director Steve Cobb:
"This complaint is mind-boggling to me. To tell the truth, I can't wait for them to come up here....The idea that we are disadvantaging our women athletes is absolutely ridiculous."
This is despite the fact that Cobb admits that the locker room situation is problematic. Women's teams, six of them. share 2 locker room, while men's basketball has their own as does men's hockey, with the three remaining men's sports (skiing, track, and cross country) sharing one locker room. A new sports complex currently in the design phase will remedy that particular problem, but not for at least five years. There are two other aspects of the complaint: access to quality coaching, and access to medical trainers and other medical personnel.
One doesn't hear a lot about the issue of quality coaching at the collegiate level and it will be interesting to see the specifics of this part of the investigation.
The specifics of the trainer situation is also interesting. Cobb insists that the decision is based on risk rather than gender with a trainer attending every men's hockey practice and game. But gymnastics, also a high risk sport, does not get a trainer because the team practices off-site and thus sending a trainer would present time issues. I don't think time constraints are going to prove to be a viable excuse.