Gender EquityCHAPTER 8

Legal Terms Title IX

Three Prong Test

13 Title IX Components

Cohen v. Brown

Roberts v. Col. State Univ.

Pretext

Prima Fascia Case

Equity in Athletics Disclosure Act

Title VII

Grove City College v. Bell

Equal Pay Act

Restoration Act

Chapter ObjectivesChapter ObjectivesAfter reading this chapter, you will know the

following: The various federal gender equity laws and how

they apply to sport The history of Title IX, how it has been

interpreted, and how it is applied today The basic analysis of Title IX athletic claims Title VII and EPA discrimination laws involving sex

discrimination in employment and/or schools The Equity in Education Disclosure Act, how to

find data and review the data

MINIMUM HOURLY WAGE $1.60

1ST WOMAN ALLOWED TO RUN BOSTON MARATHON

ROE V. WADE RULING-U.S. SUPREME COURT

What was America like then…What was America like then…

1972 U.S. Supreme Court

What was America like then…What was America like then…

• NO FAXES, NO MICROWAVE, NO EMAIL

• NOW WAS NOT A TENSE OF TIME

• ROTARY DIAL PHONES, NOT CELL

PHONES

• NIXON WAS PRESIDENT

• EQUAL RIGHTS AMENDMENT-FAILED

Ms. magazine 1st edition 1972

Unequal Access and Treatment Unequal Access and Treatment in Education in Education

• QUOTAS OF WOMEN ENTERING COLLEGE,

• WOMEN EXPLAINED BALANCING FAMILY & THEIR JOB AS PART OF ENTRANCE EVALUATION,

• GIRLS TOOK SEWING & BOYS TOOK AUTO SHOP-NO CHOICE,

• WOMEN COMPRISED 1/3RD OF COLLEGE STUDENTS,

• MEN HAD FINANCIAL ACCESS WITH LOANS, GI BILL & SCHOLARSHIPS.

Inequitable Inequitable Employment in Education Employment in Education

• WOMEN PROMOTED & TENURED AT SLOWER RATE,

• FEW WOMEN IN ADMINISTRATION (ONLY 1 FEMALE SUPERINTENDENT IN US IN 1972),

• WOMEN PAID LOWER SALARIES THAN MEN, REASON GIVEN, MEN NEEDED TO SUPPORT THEIR FAMILIES. 1973 Sports Illustrated

Girl’s made up just 1% of student-athletes, Virtually no female athletic scholarships existed, Girl’s did not have access to facilities, equip, or coaching, Separate men’s & women’s athletic programs, and Women’s college athletic programs received 2% of

funding

Inequitable Educational Inequitable Educational Programs & ActivitiesPrograms & Activities

Title IX of the Education Title IX of the Education Amendments Act of 1972 Amendments Act 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.” 21 U.S.C. §§ 168

ET SEQ.

37 words that changed American Society

Grove City College v. Bell

1984 case dealing with the application of Title IX. One of the biggest setbacks for women since passage in 1972.

Court found that Title IX was applicable only to those parts of the institution that received federal funding; thus athletics were excluded.

Civil Rights Restoration Act of 1987

Legislation reversed the findings in Grove

City College and applied Title IX

institution-wide. Thus, if any part of an

institution received federal funding, the

entire institution was subject to the

specifications in Title IX.

Title IX Applies When…Title IX Applies When…

1. Discrimination is basedon sex,

2. Involves an educational institution,

3. That receives federal funding.

Enforced by Department of Education Office of Civil Rights

Regulation and EnforcementRegulation 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

1. Participation (effective accommodation),

2. Scholarships,

3. Recruitment of student-athletes

4. Travel & Per Diem Allowance,

5. Scheduling of Games & Practices,

6. Opportunity to Receive Coaching & Coaching Compensation

Title IX -13 Athletic Title IX -13 Athletic ComponentsComponents

7. Locker rooms, strength training, & facilities,

8. Medical training facilities & services,

9. Housing, dining facilities,

10.Publicity, promotion & marketing,

11. Support services,

12. Academic support & tutoring, &

13. Equipment & Supplies.

TITLE IX COMPLIANCE, MUST COMPLY WITH ALL 13

Title IX -13 Athletic Title IX -13 Athletic ComponentsComponents

Cohen v. Brown University(page 187)

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

Cont’d.

The Three-Part TestThe Three-Part Test 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 . . .

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?

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

Separate TeamsSeparate Teams

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

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

Cutting TeamsCutting Teams

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 NCAA D-I is where athletic administration has chosen to

cut some men’s sports in order to increase the percentage of women competing.

(continued)

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

a school, where women underrepresented sex Cutting of women’s teams is not allowed if women are

the underrepresented sex, same true for men 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 and men’s team

Women sued

Court ordered school to reinstate women’s team

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

EADA link Review University of Wisconsin-Madison

EADA: University of Wisconsin data

Title IX Employment Cases Analyzed Title IX Employment Cases Analyzed Under Title VII Shifting Burden Under Title VII Shifting Burden AnalysisAnalysis

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 Representative Patsy Mink,

Hawaii-author Title IX

Title VII of 1968Title VII of 1968 Prohibits discrimination against any employee on the

basis of sex in compensation and other benefits associated with employment

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

Shifting burden analysis Plaintiff shows prima fascia case, shifts to Defendant Defendant shows real reason not discrimination, shifts Plaintiff must show Def. reason pretext real reason

discrimination

Stanley v. U.S.C. Plaintiff, Marianne Stanley, sued University of

Southern California claiming discrimination under Title VII, Equal Pay Act and Title IX.

Equal Pay Act of 1963Equal Pay Act of 1963

Protects both sexes from pay discrimination based on sex.Analyzed as Title VII with shifting burdens analysis

The act prohibits disparity in pay for jobs that require:

Equal skill Equal effort Equal responsibility Similar working conditions

Equal Pay ActEqual Pay Act

Equal work: Two jobs do not have to

require identical skill, effort, and responsibility;

the jobs must be substantially equal except for the fact that one employee is paid more even though he or she performs what is basically the same job.

Criteria That Justify a Criteria That Justify a Differential in WagesDifferential in Wages

The Equal Pay Act expressly provides four criteria that justify a differential in wages: Seniority Merit Quantity or quality of product Any factor other than sex

The employer bears the burden of proving these defenses.

Shifting Burden AnalysisShifting Burden Analysis

Stanley v. University of Stanley v. University of Southern CaliforniaSouthern California, 1994

In-class activity

Implications of Risk Implications of Risk ManagementManagement 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, Title XI and Title VII

Correct Information

Boys and girls, men and women’s school sports participation has increased each year since passage of Title IX.

Boys and men are participating in school sports at an all time high, and are funded at an all time high.

Men’s sports continue to receive $3 to every $1 provided to women’s sports.

Title IX is not the reason for cutting men’s sports, the real reason is that athletic administrators chose to do so.

Correct Information 90% of the funding of all men’s college sports goes to one

sport…football.

Women make up 52% of college students and graduate at a higher rate than men.

Does not matter the source of money (booster, tickets, advertising, TV, etc.) all resources are to be equitably shared, unless there is a reasonable explanation i.e. different equipment demands (football compared to volleyball).

It is not a sport to sport comparison, rather the overall female participants compared to overall male participants

Women’s earnings compared to men after college graduation.

$8,000 earning gap women to men. 2012 U.S. Dept. of Educ.

2013 United States Supreme 2013 United States Supreme CourtCourt

Consider this… Title IX was enacted to provide greater access to,

and fairness in education for girls and women because historically they were discriminated against solely based on their gender.

Does your English, accounting or computer class mandate that you as a male or female student generate equal money as the opposite gender for you to be treated equitably in the classroom?

In athletics how much money is generated by a sport does not make it okay to discriminate based upon gender.