TITLE IX
If you ain’t right, Title IX will
bite!!!!!
What is Title IX
• No person in the United States shall, on the basis of sex,
-- be excluded from participation in,
-- be denied the benefits of, or
-- be subjected to discrimination
under any education program or activity receiving
Federal financial assistance."
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Title IX
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TITLE IX:
Prohibits sex discrimination in
education programs/activities provided
by recipients of federal funds.
Applies to employment discrimination
in educational institutions.
Analyzes employment discrimination
claims similar to a Title VII claim
(burden-shifting).
Who Interprets & Enforces the Law?
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The US Department of
Education/Office for Civil Rights
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Develops and implements
Regulations
Manages Complaints
Investigation & Enforcement
Education
12 Regional Offices
US Court system – federal or state
law
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Binding in that jurisdiction
Titles IX the Law
• Passed in 1972 -Compliance Date of 1978
o Multiple Attempts to
Weaken the law in
Committee Fail
o Assigned to
Department of
Education/OCR
Women in Sports
In 1972 (32,000)
In 2014 (
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1990
•Courts Find a
Private Right of
Action & Monetary
Damages for
Intentional
Violations
•Cohen v. Brown
University – key
case
Cohen v. Brown University Case
 In November 1996, women at Brown University won a
ruling in federal court that the University discriminated
against women when it demoted its women's gymnastics
and volleyball teams from university-funded to donorfunded varsity status and then argued that it was in
compliance with Title IX. The court said that Brown
violated Title IX and rejected Brown's challenge to Title IX,
which was based on the stereotype that men are more
interested in sports participation than are women. The
Supreme Court declined Brown's petition to hear the case,
and the women's teams were restored to universityfunded status.
Grove City College v. Bell
• Grove City College v. Bell, 465 U.S. 555 (1984), was a case
in which the United States Supreme Court held that Title
IX, which only applies to colleges and universities that
receive federal funds, could be applied to a private school
that refused direct federal funding, but where a large
number of students had received federally funded
scholarships. The Court also held that the federal
government could require a statutorily mandated
"assurance of compliance" with Title IX, even though no
evidence had been presented to suggest that Grove City
College had discriminated in any way. However, the Court
also held that the regulation would only apply to the
institution's financial aid department
NCAA
COMPLIANCE IN
TITLE IX
Any one part of the Three Prong Test:
Prong One: Substantial
proportionality
Prong Two: History and continuing
practice of program expansion
Prong Three: Fully and effectively
accommodate interests and abilities
NCAA COMPLIANCE
OF TITLE IX
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In 1979, there was a policy interpretation that
offered three ways in which schools could be
compliant with Title IX; it became known as the
"three-part test".
Providing athletic participation opportunities that
are substantially proportionate to the student
enrollment. This prong of the test is satisfied
when participation opportunities for men and
women are "substantially proportionate" to their
respective undergraduate enrollment.
Demonstrating a continual expansion of athletic
opportunities for the underrepresented sex. This
prong of the test is satisfied when an institution
has a history and continuing practice of program
expansion that is responsive to the developing
interests and abilities of the underrepresented sex
(typically female).
Accommodating the interest and ability of
underrepresented sex. This prong of the test is
satisfied when an institution is meeting the
interests and abilities of its female students even
where there are disproportionately fewer females
than males participating in sports.
Ludtke v.
Kuhn
Page 113
Read
TITLE IX MYTHS
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MYTH: Girls are not as interested as
boys in playing sports.
FACT: The dramatic increase in girls' and
women's participation in sport since
Title IX was passed in 1972 (by 560% at
the college level and 990% in high
schools) demonstrates that it was lack
of opportunity – not lack of interest –
that kept females out of high school and
college athletics for so many years.
Before Title IX, women were told that they
were not as interested in law or medicine
as men were. But given equal opportunity
to pursue these interests, women thrive in
these fields. Similarly, given equal athletic
opportunities, women will rush to fill
them; the remaining discrepancies in
sports participation rates are the result of
continuing discrimination in access to
those opportunities.
MYTHS
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MYTH: Title IX has done its job and is no
longer needed.
FACT: In the past five years, the gap
between male and female athletic
participation at the high school level has
grown.
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Female high school athletes receive 1.3 million
fewer athletic participation opportunities than
their male counterparts (3.2 million female vs.
4.5 million male).
Female athletes receive 63,000 fewer
opportunities at NCAA Institutions (193,000
female vs. 256,000 male).
Female college athletes receive $183 million
less in NCAA athletic scholarships ($965
million female v. $1.15 billion male).
In addition, female high school and college
athletes continue to lag behind males in the
provision of equitable resources such as
equipment, uniforms and facilities.
MYTHS
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MYTH: Title IX has resulted in the loss of
athletic opportunities for men's sports.
FACT: Overall, men's athletic opportunities
since Title IX's passage have increased.
Title IX has been wrongly blamed by its
critics for cuts to some men's sports teams
at some educational institutions.
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Schools choose to support, eliminate or
reduce particular sports opportunities on both
men's and women's specific teams for a
variety of reasons, including varying interests
in specific sports and choices about how to
allocate budget resources among the sports
teams the school decides to sponsor or
emphasize. The number, competitive level and
quality of sports programs are individual
institutional decisions, just as the number and
quality of academic programs are institutional
prerogatives. The government cannot dictate
that particular varsity sports be added,
retained or discontinued for men or women.
Title IX Quiz
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1. Title IX is a law about: a.ownership b. discrimination c. civil rights
2. Title IX also applies to employment discrimination on: a. hiring b. firing c. both
3. Title IX is enforced by: US Department of Education
Both
b. Office of Civil Rights c.
4. Title IX was passed in: a. 1962 b. 1972 c. 1982
5. In 1972, the number of women in sports were: a. 10,000 b. 23,000 c. 32,000
6. Cohen v. brown University was a key for Title IX because: a. the University was fined
b. Monetary damages were awarded
7. Another landmark Title IX case was: a. Grove City v. Bell b. Lutke v. Kuhn c. Hafer
v. Temple University
8. The NCAA uses a ____ prong test for Title IX compliance. A. 5
b. 4
c. 3
9. Girls are not interested in sports like boys. A. True b. False
10. Title IX is a direct result to the lose of Men’s sport on college campus. A. True
False
b.
MYTH
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MYTH: The American public is not
supportive of Title IX.
FACT: Eight in 10 voters (82%) support
Title IX with agreement across all
political parties and among voters
with and without children.
The American public believes that
sports participation is as important for
our daughters as it is for our sons.
FACTS
Chapter 6
Hiring, Promotion, Termination,
Compensation, and Leave
TERMS
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Civil Rights Act of 1964
ADEA
EEOC
Pregnancy Discrimination Act 1978
Equal Pay Act of 1973
American Disability Act of 1990
Disparate Treatment
Evidentiary burden
BFOQ
Title IX
Equal Protection Clause
Family Medical Leave Act of 1993
Management Contexts,
Relevant Laws, and Cases
Hiring, Promotion, and Termination
Employment discrimination may occur in
different forms. The U.S. Constitution and
several federal statues addresses many
employment discrimination.
Decisions may be based illegally
on:
• Race
• Sex
• Religion
• Disability
Title VII
Title VII of the Civil rights Act of 1964
• Protected classes:
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Race
Color
Religion
Sex
National origin
• Applies to employers with 15 or more full-time employees.
• Does not apply to independent contractors or to private
membership clubs.
• Does not apply to American Indian Tribes or religious
organization hiring for religious functions.
Types of Discrimination
Adverse employment actions related to:
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Hiring
Firing
Layoffs
Job training
Work assignments
Discipline
Job classifications
Provision of benefits
Equal Employment Opportunity
Commission (EEOC)
A Federal Agency
• Facts
• 1. The EEOC issues regulations for implementing Title VII.
• 2. The EEOC can issue guidelines for analyzing
discrimination.
• 3. An example of #2 is the Enforcement guidelines on Sex
Discrimination in the Compensation of Sports coaches in
Educational Institutions (EEOC, 1997).
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also
provides oversight and coordination of all federal equal employment opportunity regulations,
practices, and policies.
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Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based
on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal
work in the same establishment from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40
years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit
employment discrimination against qualified individuals with disabilities in the private sector, and
in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against
qualified individuals with disabilities who work in the federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits
employment discrimination based on genetic information about an applicant, employee, or former
employee; and
the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of
intentional employment discrimination.
Title VII Remedies
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Back pay- for work missed due to
employment action.
Front pay- for future earnings that
would have been received.
Reinstatement- employee goes back to
the position.
Retroactive seniority
Injunctive relief- ordering the employer
to cease unlawful practices.
Attorneys fees-
Compensatory and punitive damages
COACHES
Theories of Liabilities and Defenses
• Courts use two primary theories of liability in deciding Title VII cases:
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Disparate Treatment-
Claim requires a finding of intentional discrimination:
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Direct evidence of intent
Inference from circumstantial evidence relating to the way the
employer has treated others
Read p. 103 Biver v. Saginaw Township Community Schools (1986)
Evidentiary burdens:
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Burden of production-defendant’s responsibility to produce evidence
supporting the defense.
Burden of proof- The responsibility of proving the truth of a claim.
Theories of Liabilities and Defenses
• 2. Disparate Impact
• Used when a plaintiff has appropriate statistical
evidence that a “neutral” employment practice has had
an impact on members of a protected class.
• Successful claims are rare:
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Difficult to establish that a workforce pool has been negatively
impacted.
The common method used of proving discriminatory intent is
the McDonnell Douglas test.
The McDonnell Douglas Test
(A burden-shifting analysis)
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Burden of production –need to
produce evidence
Burden of proof- need to prove the
truth of an issue
Prima facie case- prove that the
allegations are true
Preponderance of the evidence- the
level of proof required to prevail
SLNDR – some legitimate,
nondiscriminatory reason
Page 104 (exhibit 6.4)
Page 105 Read
BFOQ Defense
In cases of alleged gender discrimination the BFOQ defense is
available:
• Bona fide occupational qualification defense
• Employer must show that members of the excluded class
could not perform essential job functions effectively—and
discrimination was justified.
• Example:
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Male fitness instructor at an all-female health club.
Read page 110
Equal Protection Clause Tests
Age Discrimination in Employment
Act (ADEA)
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Applies to employers with 20 or
more employees
Applies to American Indian
tribes, religious organizations,
and private membership clubs
(unlike Title VII)
Prohibits private right of action
against state government
employers
Does not protect against
discrimination based on being
too young
Examples of Age Discrimination
• Forcing retirement due to age
• Including age preferences in job ads
• Assigning older workers to jobs that do not allow for
promotion to higher-level positions
• Promoting a younger worker over an older worker, because
the older worker may be planning to retire
• Hiring a younger worker over a better-qualified older worker
Your Perspective
• You’ve just been hired as the new skiing instructor at a ski
resort in Colorado. You discover that another applicant with
20 years’ of instructing experience was turned down for the
job.
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What is your reaction?
What do you say to the person who made the hiring decision?
Disability Discrimination
Relevant Federal Law
Disability Discrimination
Relevant Federal Law
• §504 of Rehabilitation Act of 1973:
• 1. The disability limits a major life activity.
• 2. Plaintiff was discriminated against on the basis of the
disability.
• 3. No reasonable accommodation was made.
• Americans with Disabilities Act of 1990
• Americans with Disabilities Act Amendments Act of 2008
Covered Disabilities
• Physical impairments
• Mental impairments/psychological disorders
• Infectious/contagious diseases
• Past disabilities
• Perceived but not real disabilities (i.e., facial
deformities, prior cancer treatment)
• Not covered:
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Temporary injuries or conditions, correctable impairments
SPECIAL
OLYMPICS
§ 504 / ADA /ADAAA
Conditions Excusing Employer from
Liability
• Adverse action is not solely based on disability
• Employee could not perform essential job functions
• Reasonable accommodation is offered
• Needed accommodation is an undue hardship or requires
fundamental alteration in nature of business
Examples of Reasonable / Unreasonable
Accommodations
• Reasonable:
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Rendering facilities/equipment accessible and usable
Modifying work schedules
Modifying qualifying exams or training materials
• Unreasonable:
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Tolerating employee misconduct stemming from a disability
Tolerating frequent absences
Redesigning a job by eliminating many essential job functions
Significant Risk
Exception
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If a risk poses direct threat to safety and
well-being of oneself or others, there is
no obligation to hire or maintain
employment.
Factors in assessing direct threat:
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Severity of risk
Likelihood of harm
Available means of reducing risk
In Your Role as Manager
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Do not require medical exams until after an employee has been hired
Seek other perspectives when trying to determine if an accommodation is
reasonable or constitutes undue hardship
Avoid asking interview questions with potentially discriminatory implications
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Focus on what applicants can do.
Discrimination in
Compensation
Relevant
Federal Law
During the 1990s the
issue of gender equity
saw lawsuits under the
following laws:
Title VII
Title IX
Equal Pay Act of 1963
Stanley v. USC (1999)
Perdue v. City Univ. of NY (1998)
Tyler v. Howard Univ. (1993)
Coaching Compensation:
Key Issues
• Differences in coaching responsibilities, pressures, revenue
generation
• Title VII and Equal Pay Act claims are based on the sex of the
employee, but salary disparities are based on the sex of the team.
Discrimination
Regarding
Employee Leave
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Pregnancy Discrimination Act of 1978:
Employers to treat pregnancy like any
other temporary inability to work and
allow pregnant women to take leave time.
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Family & Medical Leave Act of 1993:
Guarantees up to 12 weeks of unpaid
leave per year that can be used childbirth
or adoption or to care for sick primary
family members. Employee’s must have
the equivalent job upon return.
Quiz
1. "Melissa Ludtke, the sports reporter who was denied access to the New York Yankees locker
room because she was female, lost her lawsuit because the court felt that the privacy of the
players could be protected in no other way." A. True B. False
2. If a person is infected with HIV virus, that person is considered to have a disability covered
under the Americans with Disabilities Act.
A True B. False
3. People with learning disabilities are not protected under the Americans with Disabilities Act
nor under section 504 of the Rehabilitation Act. A. True B. False
4. "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination directed at the
protected classes of race, color, religion, sex, and national origin."
5. The bona fide occupational qualification (BFOQ) defense is available under Title VII for
claims of employment discrimination based on which of the following? Sex and race Sex
and religion Race and religion
None of the above
6. "The law that requires that women receive equal salaries as men for doing work that requires
equal skill, effort, and responsibility, and that is performed under similar working conditions, is
known as _____."
Title VII
Title IX
The Equal Pay Act None of the above
7. Which of the following prohibits terminating a female employee because she is pregnant?
Title VI
The Equal Pay Act ADA None of the above
ANSWERS
1. "Melissa Ludtke, the sports reporter who was denied access to the New York Yankees locker room because she
was female, lost her lawsuit because the court felt that the privacy of the players could be protected in no other
way." True False
B
2. "If a person is infected with the HIV virus, that person is considered to have a disability covered under the
Americans with Disabilities Act and under section 504 of the Rehabilitation Act. "
True False
A
3. People with learning disabilities are not protected under the Americans with Disabilities Act nor under section
504 of the Rehabilitation Act.
True False
B
4. "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination directed at the protected classes of
race, color, religion, sex, and national origin."
True False
A
5. The bona fide occupational qualification (BFOQ) defense is available under Title VII for claims of employment
discrimination based on which of the following?
Sex and race
Sex and religion Race and religion None of
the above
B
6. "The law that requires that women receive equal salaries as men for doing work that requires equal skill, effort,
and responsibility, and that is performed under similar working conditions, is known as _____." Title VII Title IX
The Equal Pay Act
None of the above
C
7. Which of the following prohibits terminating a female employee because she is pregnant?
Equal Pay Act ADA None of the above
D
Title VI The
Review
• Review Title IX quiz.
• Review the terms for chapter six.
• Review the quiz for chapter six.