A TWIST ON THE PROBLEM OF SEX INEQUALITY IN COACHING:
A Male Coach Who Was Rejected As Coach Of A Women's Team Sues And Wins

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Nov. 06, 2001

Andrew Medcalf, an assistant coach for the men's crew team at the University of Pennsylvania, applied to be head coach for the school's women's crew team. He did not get the job and a woman was hired instead. Medcalf then sued Penn, claiming the decision constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Last week, a federal jury found for Medcalf, awarding him $115,000 on his claim.

Medcalf's claim of reverse discrimination is unusual, given that equality for female coaches in collegiate athletics has long been elusive. Given the evidence, the verdict for Medcalf may well have been the right one. But Medcalf's individual situation should not form the basis for the broader claim that reverse discrimination is at the heart of the inequality in coaching.

The Evidence Against — and For —Penn

According to the evidence introduced at trial, Medcalf was told by Penn's rowing director that he was not hired–or even interviewed–because Penn wanted to hire a woman for the position.

There was some evidence that Penn preferred a woman because it was looking for a female role model for the female athletes. But the woman Penn did hire was by no means unqualified. Indeed, she came with substantial head coach experience, both for Dartmouth College and the U.S. junior women's national team.

Nevertheless, the jury was instructed to return a verdict for Medcalf if they believed sex was a "determinative factor" in Penn's decision not to hire him. To understand why this instruction was given, some background in discrimination law is necessary.

The Two Defenses Against Claims of Sex Discrimination in Hiring

Title VII generally precludes employers from taking sex into account when making employment decisions, including decisions about hiring. There are only two exceptions to this rule. The first is for hiring decisions based on a bona fide occupational qualification (BFOQ). The second is for hiring decisions made pursuant to a valid affirmative action plan.

The BFOQ exception permits employers to make sex-based hiring decisions when only employees of one sex are qualified do the job. Thus, a sperm bank can legitimately refuse to hire women as donors, and men may be excluded from jobs as wet nurses.

Even beyond those obvious examples, the BFOQ defense may be used to justify sex-based hiring in other cases. A few courts have permitted the BFOQ defense to be raised on a role model theory–which might have worked here–but most courts have rejected that approach.

Why wasn't Penn able to successfully mount a BFOQ defense? For one thing, the BFOQ defense is generally raised by an employer trying to explain a formal policy of sex discrimination — and Penn never admitted it passed Medcalf over because of his sex in the first place.

What about an affirmative action defense for Penn? Under the Supreme Court's jurisprudence, affirmative action can only be a defense when the employer has a valid affirmative action plan in place — and there was no evidence Penn had such a plan. (To be valid, an affirmative action plan must be enacted to combat a real problem of past discrimination and must be narrowly tailored to avoid unnecessarily trammeling on the rights of the majority.)

In short, since neither of the two defenses Penn might have raised could work, this case essentially came down to the single factual issue of whether Title VII's "because of sex" requirement was fulfilled.

The issue boiled down to this: Did Penn in fact decide not to interview or hire Medcalf because of his sex? If so, it probably violated Title VII — and the jury's verdict was correct.

Sex Segregation in Coaching Jobs

The Medcalf verdict should not be taken to suggest that the problem of inequality in athletics' coaching is primarily reverse discrimination. For even if male coaches like Medcalf occasionally face sex discrimination, sex discrimination against female coaches is far more prevalent and widespread.

Female coaches face two significant forms of inequality in collegiate athletics: unequal job opportunity and compensation discrimination. The first is a problem of occupational segregation.

The term "occupational segregation" describes a situation where some jobs are largely "women's jobs" (for example, being a nurse) and others largely "men's jobs" (for example, being a plumber). For the most part, jobs coaching male athletes are seen as "men's jobs."

Only two percent of men's teams are coached by women, and the few female coaches tend to coach lower-paid sports like swimming, diving, or track. From this overall pattern, one might conclude that women are effectively foreclosed from the more lucrative coaching jobs.

There is no single explanation for why women so seldom coach men's teams. Many factors may contribute. An old boys network may lead athletic directors to recruit people they know, who then "happen" to be men. There may also some resistance by some male athletes to being coached by women.

In addition, in coaching decisions, credit may be given for the applicant's experience playing the sport, or playing it at a professional level. That effectively takes women out of the running for football coaching jobs and puts them at a significant disadvantage in other sports as well. (It may also favor male ex-athletes over women as coaches for women's teams in sports women are just starting to break into). Finally, female coaches may be reluctant to apply because they assume they won't get the job — or might face hostility if they do.

Unequal Pay for Female Coaches: The Statutes and the EECO Policy Guidance

The problem of job segregation is exacerbated by differences in pay. In general, coaches of male athletes are paid more–often vastly more–than coaches of female athletes. Because women infrequently coach male athletes, this pay differential means in effect that male coaches are often paid more than female coaches.

Litigation over unequal coaches' pay has been a hot area of the law in the last ten years. There are three federal statutes potentially implicated in coaches' pay litigation. First, there is Title IX, which prohibits sex discrimination by educational institutions. Second, there is Title VII, which prohibits sex discrimination in employment. Third, and finally, there is the Equal Pay Act, which guarantees women equal pay for equal work.

Although there are slight differences among the three statutes, the Equal Employment Opportunity Commission has issued a policy guidance establishing a single method of analysis to be used in coaches' pay litigation. According to the guidance, this is how a case claiming sex-based pay disparities in coaching should proceed:

First, the female plaintiff selects a male comparator–a man employed by the same school with a substantially equal position. (The comparator need not be in the same sport, but he must be a real person, actually coaching another team for more money.) The plaintiff has the burden of proving the two positions are equal in skill, effort, responsibility, and working conditions. Then it is the employer's turn. The employer has the opportunity to prove, as an affirmative defense, that the pay differential is based on a factor other than sex.

Improperly Incorporating Past Discrimination Into Present Practices

Most coaches' pay litigation revolves around this second step — with schools making different arguments for why they pay similarly-situated male coaches more. Schools claim, for example, that male coaches have greater responsibility for revenue production — and must, for example, make media appearances on the team's behalf.

School also argue that men have to be paid more to induce them to come coach at the school, and that men's prior salaries, which serve as a benchmark for their current salaries, are higher than women's. Finally, schools argue that men have more experience in both coaching and playing the sport.

On their face, all of these factors are unrelated to sex. But they are also built on past discrimination against female coaches. If they are allowed to explain pay differentials, they only perpetuate that past discrimination.

For example, different responsibilities for coaches are often the result of different opportunities. Men's coaches (who are usually men) sometimes have to make television and radio appearances because the school has actively sought those opportunities for them–but not for their counterparts coaching women's teams.

Likewise, relying on prior salaries — as well as the need to induce the coach to switch schools — in order to set coaches' salaries will certainly have the effect of building in wage discrimination from other schools. Once one school discriminates in favor of men, every other school has an excuse to do so; conversely, if no school can discriminate, the rationale of having to compete in salaries falls apart.

Favoring men because they had more opportunities to play and coach in the past is perhaps the most blatant example of using past discrimination to ensure discrimination in the present. Women face the classic Catch-22: You can't get a job unless you have experience, and you can't get experience unless you have a job. The fact that jobs were once denied based on sex makes the Catch-22 not just frustrating, but discriminatory, too.

The EEOC's approach is designed to strictly enforce federal guarantees against sex discrimination. Nevertheless, the problem of inequality in terms of both pay and job opportunities for female coaches persists. Greater attention needs to be paid to the role that schools play in allowing this discrimination to continue.

While what happened to Andrew Medcalf was unfair, at least it was not epidemic. Female coaches face similar discrimination every day.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects. Her other columns on sex discrimination may be found in the archive of her columns on this site.

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