You can’t please everyone.
Two-thirds of players in the National Football League are Black, a number that has not materially changed for decades. However, the coaching ranks have never reflected the demographics of the player population. In an effort to address this disparity, in 2003, the NFL instituted what is known as the Rooney Rule, so named for its progenitor, Dan Rooney, who at the time was owner of the Pittsburgh Steelers. The Rooney Rule has evolved through the years but generally has required clubs to interview a minority candidate for head coach positions. The Rule has resulted in mixed success and has been a frequent topic of discussion and criticism from multiple sides. The most recent version of the Rule is now the subject of a complaint to the U.S. Equal Employment Opportunity Commission from America First Legal, an organization directed by former staffers from the Trump Administration.
The Rooney Rule’s evolution
In 2002, the year before the Rooney Rule came into being, the NFL had two Black head coaches. In 2006, there were a record seven Black head coaches. That season saw a Super Bowl in which both teams were led by Black coaches – Tony Dungy of the Indianapolis Colts and Lovie Smith of the Chicago Bears. And in 2009, Mike Tomlin, the first Black coach for Mr. Rooney’s Steelers, led the team to a Super Bowl victory.
The Rule was considered successful enough to be extended in 2009 to team general managers, another position which had historically lacked diversity.
Yet, criticism was never far behind. There were situations in which seemingly qualified minority coaches were passed over, or where it seemed that clubs were interviewing a minority candidate solely for the purpose of complying with the Rooney Rule. In 2003, the NFL fined the Detroit Lions $200,000 for failing to interview a minority candidate after the club made clear that it preferred a specific candidate who was white.
In 2020, the league beefed up the Rule. The changes required two external minority candidates to be interviewed for head coach vacancies, and one minority candidate to be interviewed for each of the coordinator, general manager, and club president positions. Additionally, the amended Rule provided extra draft picks for teams who developed minority coaches and general managers.
The Flores lawsuit and further changes
In the 2022 offseason, Brian Flores, the Black head coach of the Miami Dolphins, was terminated despite a 9-8 record. He was then passed over for several head coaching vacancies. In February of that year, Mr. Flores initiated a putative class action lawsuit against the league and several clubs, alleging racially discriminatory employment practices. A federal court has since largely granted the NFL and the clubs’ efforts to have the case moved to arbitration, and Mr. Flores’ case has been a bit stymied.
Less than a month later, the NFL announced a supplement to the Rooney Rule: a requirement that all clubs employ a female, or a member of an ethnic or racial minority, as an offensive assistant coach.
Is this legal?
The new requirement is of questionable legality. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin, or sex. (“Sex” includes sexual orientation, gender identity, and pregnancy and pregnancy-related conditions.)
All states except Alabama and many cities have passed their own legislation similarly banning such discrimination. The U.S. Supreme Court has recognized very limited exceptions to these strict prohibitions, permitting employers to adopt “affirmative action plans” where (1) preferences are intended to “eliminate manifest racial imbalance in traditionally segregated job categories”; (2) the rights of non-minority employees are “not unnecessarily trammeled”; and (3) the preferences are temporary in duration. Absent very unique circumstances, protected characteristics cannot be the basis for making employment decisions.
Any possible permissible use of protected characteristics in hiring was dealt a further below by the Supreme Court’s 2023 decision in cases involving Harvard University and the University of North Carolina. There, the Supreme Court struck down the use of race as a factor in college admissions.
Will the Rooney Rule survive?
On its face, the recent changes to the Rooney Rule lead to the conclusion that race and sex will be factors in the selection process, and that violates Title VII. If a qualified white male were to interview and lose out on a position as an offensive assistant coach to a female or minority candidate, he could have a plausible claim under federal and state anti-discrimination laws.
For all of the above reasons, the AFL recently requested the EEOC to investigate the Rooney Rule. The AFL’s stance is similar to other challenges it has made to diversity initiatives by American employers – including Major League Baseball. The NFL has publicly responded by defending the Rule and its results. It may have to do so to the EEOC and perhaps, eventually, a court.
- Senior Counsel
Chris is an attorney with more than thirteen years of experience at law firms, in-house, and in academia, with extensive expertise in sports, litigation, and labor and employment. He represents and advises employers with respect to ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010