Gender Equity in Sports

Chapter 8

Title IX of the Educational Amendments of 1972

• “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.”

• In 1984 (Grove City College case), Supreme Court held that only programs which received direct federal financial assistance had to comply.

• Congress, recognizing the importance of athletics on education, passed the Civil Rights Restoration Act of 1987

• Now, if any department in a school receives federal funding, the law applies to the entire school

Who and what?

• Who is exempt from Title IX?– The NCAA, for example, does not directly receive

any federal financial assistance and does not have to comply

• Who can sue under Title IX?– In a 1979 case, the Supreme Court held that an

individual can sue under Title IX

• What do you get if win a Title IX law suit?– In a 1992 case, the Supreme Court held that

monetary damages could be available to successful individuals in lawsuits alleging Title IX violations

Regulation and Enforcement

• Department of Education– 1975 regulations focus on equal opportunity:

• Program areas (i.e., equipment, locker rooms)• Effective accommodation of interests and abilities and

selection of sports for both genders• Equivalency in financial aid

– 1979 Policy Interpretation designed to provide ways for schools to measure whether they comply with Title IX and the 1975 regulations

• Part 1: Financial assistance• Part 2: Equality in program areas• Part 3: Effective accommodation

Underrepresentation

• Women always have been and continue to be underrepresented in athletics.– 1971: 16,000 women in college athletics– 2008: 9,101 women’s teams– 2005-2006

• High school: 2,953,355 girls, 4,206,549 boys• College: 168,583 women, 224,926 men

• Yet, there has been substantial growth in women’s participation since the passage of Title IX.

The Three-Part Test

• Measures whether the interests and abilities of both sexes are being equally accommodated by the provision of equal athletic opportunities

• Focus of much of Title IX litigation• Prong 1

– Are participation opportunities for both sexes substantially proportionate?

– This is a safe harbor if participation of underrepresented sex is substantially proportionate to other sex. If so, then stop here because compliance is determined; if not . . .

The Three-Part Test (continued)

• Prong 2– Can the institution show a history and continuing practice of

program expansion? If yes, stop here; if not . . .

• Prong 3– Have the interests and abilities of the underrepresented sex

been fully and effectively accommodated?– Requires surveys of students to determine interests and

abilities

• Do not need to meet each prong - Any one prong of the three-part test, if met, demonstrates compliance with Title IX

Cohen v. Brown University

• The university, needing to cut its budget, eliminated university funding for men’s golf and water polo and women’s gymnastics and volleyball. – Challenged the argument that women were

interested enough in sport opportunities to offer a proportionate number of sport programs

– Regarded as a victory for women because the First Circuit Court of Appeals took the position that Title IX meant that equal representation for women in sports had to be proportionate to the student body population

1996 Clarification

• Reiterated that three-part test is really three individual ways to comply with Title IXProng 1: Substantial proportionality only an issue if

there are enough athletes to sustain a team

Prong 2: To meet this, school must continuously expand opportunities in response to women’s interests.

Prong 3: Must effectively accommodate interests and abilities of admitted and enrolled students

Separate Teams

• Schools may sponsor teams for members of one sex– if selection is based on athletic skill, or– if sport is a contact sport.

• There is no contact sport exception. Contact sports, even if predominantly male, are still taken into account under prong 1.

• As such, a school with 12 male teams and 12 female teams may not be in compliance if one of the male teams is football

• Mercer v. Duke University, 2002

Cutting Teams• “Proportionate” female participation has never been defined.

As such, schools don’t know whether 10% difference is enough to satisfy test or not.

• Cutting men’s is allowed under prong 1 of the three part test– Done to bring number of male participants into substantial

proportionality with number of female participants

– Not favored: 2003 OCR Further Clarification – although men’s teams could be cut in order to come into compliance with the law, but this is disfavored and contrary to the spirit of the law

(continued)

Cutting Teams (continued)

• Miami University Wrestling Club v. Miami University (2002)– 1997: 55% female students, 47% female student

athletes (University interpreted this as not considered proportional)

– Men sued after university cut four men’s teams to gain proportionality

– Court dismissed their complaint because members of overrepresented sex (men) do not have a claim under the three-part test

– Basically, law only protects underrepresented sex

Cutting Women’s Teams• Men from cut teams have never won a lawsuit against a

school• Cutting of women’s teams is never allowed because

women tend to be the underrepresented sex • Existence of women’s team is evidence of interest and

ability• Roberts v. Colorado State Board of Agriculture (1993)

– In response to disproportionate numbers of women participating, university cut women’s softball and men’s baseball teams

– Women sued

– Court ordered school to reinstate women’s team (disparity, no history of expansion, and interest)

Interest Surveys and Recent Guidance

• 2005 Additional Clarification– Allows for Internet surveys to show interests and

abilities and meet third prong of three-part test– Counts non-response as lack of interest, but school

must receive 85% response level to proceed– Surveys must be conducted periodically– Schools cannot use survey results to eliminate

teams– If interest is proven, a varsity team must be created

Facilities and Scheduling

• Has not been an issue for litigation at the college/university level, but is often an issue at the high school level

• Four part analysis– Assessment of benefits and treatment– Analysis of nondiscriminatory factors– Additional factors to analyze factors from the

regulations– Overall determination of compliance

McCormick v. School District of Mamoroneck

• 2 Olympic level female soccer players sued school district because girl’s soccer played in spring, while boys played in fall

• Done to allow soccer to not compete with girls’ field hockey

• Did not allow the girls to play in district, regional, and state championship play

• School said it would be costly to change• Court ordered season changed to fall• **Differences are allowed, only if differences do not limit

the potential for the athletes exposure and opportunities

Disclosure of Information

• Equity in Athletics Disclosure Act (1998)– Requires all universities that receive federal student

aid and have athletic programs to disclose information related to financial aid, athletic revenues, and other resources

– Information available to the public at http://ope.ed.gov/athletics

Employment Discrimination

• In 1972, 90% of head coaches of women’s sports were women

• In 2008, that figure was down to 42.8%• Title VII prohibits discrimination against any

employee on the basis of sex in compensation and other benefits associated with employment

• Plaintiff merely has to show some negative job action (for example, termination) that was taken on the basis of the employee’s sex

Equal Pay Act

• Prohibits discrimination in wages between employees on the basis of sex for equal work on jobs that require equal skill, effort, and responsibility under similar working conditions.

• Equal work: Two jobs do not have to require identical skill, effort, and responsibility; instead, the jobs must be substantially equal except for the fact that one employee is paid more even though he performs what is basically the same job.

Implications of Risk Management

• Failure to comply with Title IX can be costly to institution:– Financial burdens– Image of institution– Satisfaction of participants

• Coaches and administrators– Sexual harassment– Lawsuits involving EPA and Title VII