MLB and NFL Diversity Hiring Plans: Avoiding Liability While Achieving Equity

Throughout United States history, almost every workforce has been dominated by white men. Recent decades have seen efforts to change hiring policies across nearly every industry to promote diversity and inclusion of historically underrepresented minorities. Professional sports league management ranks, possibly more so than other industries, have especially struggled with this issue. Even after the major sports leagues fully integrated their player rosters, minorities still suffered from unequal representation in front office positions and coaching staffs.

Currently in Major League Baseball, only four heads of team baseball operations are identified as non-white by MLB’s diversity goals.¹[1]James Wagner, Hailed as a Trailblazer, Kim Ng Stands Alone, New York Times (January 29, 2021), https://www.nytimes.com/2021/01/29/sports/baseball/mlb-diversity-kim-ng.html There is one Black man, one Latino man, a man of Asian descent, and recently hired Asian woman.²[2]Id. Currently, there are six minority managers. This is in stark contrast to the representation of MLB players where forty percent identify as non-white.³[3]Id. In the National Football League, a league which consists of seventy percent Black players, only five of thirty-two general managers are minorities and there are only four minority head coaches, three are Black and one is Muslim.⁴[4]Barry Svrluga, Washington’s front office looks nothing like it ever has before. That’s a reason for hope., THE WASHINGTON POST (February 4, 2021), https://www.washingtonpost.com/sports/2021/02/04/washington-front-office-diversity-ron-rivera/

In response to these disproportionate numbers, the NFL and MLB have adopted formal rules to help promote more diverse hiring practices. In 1999, then MLB Commissioner Bud Selig announced what came to be known as the “Selig Rule,” requiring every ball club to consider minority candidates “for all general manager, assistant general manager, field manager, director of player development and director of scouting positions.”⁵[5]Richard Justice, ‘Selig Rule’ first of its kind in sports, MAJOR LEAGUE BASEBALL (August 26, 2013), https://www.mlb.com/news/richard-justice-selig-rule-first-of-its-kind-in-sports/c-58500104 Teams have to provide the Office of the Commissioner with a list of their openings and a list of candidates to be interviewed.⁶[6]Id.

The NFL in 2003 adopted the “Rooney Rule,” named after former Pittsburgh Steelers owner and chairman of the league’s diversity committee, Dan Rooney. It requires every team with a head coaching vacancy to interview at least one diverse candidate.⁷[7]NFL expands Rooney Rule requirements to strengthen diversity, NATIONAL FOOTBALL LEAGUE (December 12, 2018), https://www.nfl.com/news/nfl-expands-rooney-rule-requirements-to-strengthen-diversity-0ap3000000999110 In 2009, the league expanded the Rooney Rule to include general manager jobs and equivalent front office positions.⁸[8]Id. In 2018, the Rooney Rule was enhanced again and now states:

“Clubs must interview at least one diverse candidate from the Career Development Advisory Panel list or a diverse candidate not currently employed by the club; Clubs must continue best practice recommendation of considering multiple diverse candidates; Clubs must maintain complete records and furnish to the league upon Commissioner’s request; and If final decision-maker is involved in the beginning, he/she must be involved through the conclusion of the process.”⁹[9]NFL EXPANDS ROONEY RULE REQUIREMENTS TO STRENGTHEN DIVERSITY, (December 12, 2018), https://nflcommunications.com/Pages/NFL-EXPANDS-ROONEY-RULE-REQUIREMENTS-TO-STRENGTHEN-DIVERSITY.aspx

Additionally, the NFL passed a resolution at the end of 2020 that compensates teams with draft picks when they lose minority staff members to coaching jobs and premium positions.¹⁰[10]Jarrett Bell, NFL approves plan to reward teams with draft picks for developing minority coaches, GMs, USA TODAY (November 10, 2020), https://www.usatoday.com/story/sports/nfl/2020/11/10/nfl-minority-coach-general-manager-hiring-proposal-approved/6234064002/ The resolution states that: “A team that loses a minority assistant coach who becomes a head coach or loses a personnel executive who becomes a general manager will receive third-round compensatory picks in each of the next two drafts and a team that loses two minority staffers to head coach and general manager positions would receive three third-round picks.”¹¹[11]Id. Unlike the MLB, which merely requires teams to consider minority candidates, the NFL has continuously evolved its rule and has in place tangible requirements and benefits to incentivize teams that cooperate with the rule.

This article examines the legality of the Rooney and Selig Rules under Title VII of the Civil Rights Act and Supreme Court decisions addressing race discrimination and affirmative action. This piece will then analyze how the leagues can continue improving their diverse hiring practices within the statutory and constitutional constraints. It will also examine the risk of a reverse-discrimination challenge to the Rooney and Selig rules and the merits of such a claim.

Affirmative Action Programs Under Title VII and Equal Protection

Affirmative action hiring policies must comply with both Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Title VII provides: “It shall be an unlawful employment practice for an employer– to fail or refuse to hire …any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”¹²[12]42 U.S.C. § 2000e-2(a)(1) Title VII’s purpose is to achieve equal employment opportunities and remove barriers that have previously favored a group of white employees solely on the basis of their race.¹³[13]Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971) In a Title VII case, the complainant carries the initial burden of establishing a prima facie case of racial discrimination.¹⁴[14]McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) The burden is satisfied by showing “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”¹⁵[15]Id. After the complainant makes out a prima facie case, the burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the applicant’s rejection.”¹⁶[16]Id.

The Supreme Court has ruled on numerous Title VII affirmative action cases that provide insight into the legality of such a plan in the face of a reverse discrimination claim. In 1974, United Steelworkers of American and Kaiser Aluminum & Chemical Corp. entered into a collective bargaining agreement that contained an affirmative action plan designed to eliminate racial imbalances in Kaiser’s work forces.¹⁷[17]United Steelworkers v. Weber, 443 U.S. 193, 197-198 (1979) Training programs were established to teach unskilled production workers the necessary skills and the plan reserved 50% of the openings for black employees.¹⁸[18]Id. Plaintiff Weber was a white production worker whose bid for admission was rejected, despite having more seniority than some of the Black workers who were admitted.¹⁹[19]Id. at 199. The plan was held to be permissible because it mirrored the plan in the Title VII statute of increasing employment opportunities for Black individuals in occupations that have traditionally been closed to them.²⁰[20]Id. at 208. Additionally, the plan did not restrict the interests of white employees as it did not require firing white employees in order to replace them with black employees nor did it bar the advancement of white employees.²¹[21]Id. A plan that is designed to eliminate conspicuous racial imbalances in traditionally separate job categories is a permissible plan under Title VII.²²[22]Id. at 209.

An affirmative action plan based on gender was brought before the Supreme Court in 1987 in Johnson v. Transportation Agency of Santa Clara County.²³[23]Johnson v. Transp. Agency of Santa Clara Cty., 480 U.S. 616, 620 (1987) The Agency’s plan permitted consideration of gender when promoting workers to positions that have been underrepresented by women.²⁴[24]Id. at 621. In accordance with the plan, a woman was promoted to a position with a significant underrepresentation of female workers over a white, male candidate with a slightly higher score.²⁵[25]Id. at 624. The man sued the Agency for discriminating against him due to his sex in violation of Title VII.²⁶[26]Id. at 625. The Court set forth a two-step test for an employer to justify its affirmative action plan.²⁷[27]Id. at 631. First, there must be a manifest imbalance that reflected underrepresentation of women in traditionally segregated job categories.²⁸[28]Johnson v. Transp. Agency of Santa Clara Cty., 480 U.S. 616, 631 (1987) The imbalance is determined by comparing the percentage of women that are qualified for the position with the percentage currently employed in the positions.²⁹[29]Id. Second, the plan cannot unnecessarily trammel the rights of male employees or create an absolute bar to their advancement.³⁰[30]Id. at 637-638. The Agency’s plan did not specifically set aside positions for women; rather Joyce’s sex was one of multiple factors taken into account in hiring her.³¹[31]Id. The plan required women to compete with all qualified applicants, without automatically excluding anyone from consideration.³²[32]Id. Since the plan was a flexible, case-by-case approach, it was upheld as a permissible action.

In Griggs v. Duke Power Co., the Supreme Court addressed a neutral employment practice that resulted in discrimination of a protected class despite an equal application to all employees.³³[33]Griggs v. Duke Power Co., 401 U.S. 424 (1971) Prior to passage of the Civil Rights Act of 1964, Duke Power openly discriminated against Black applicants for most jobs, and in four departments open to Black applicants, required a high school diploma.³⁴[34]Id. at 427. Once the Civil Rights Act banned employment discrimination, the company’s hiring process introduced two general intelligence aptitude tests, which had no relation to job performance.³⁵[35]Id. Despite this practice being neutral on its face, the Supreme Court prohibited it because it functioned to preserve the status quo of prior discriminatory employment practices.³⁶[36]Id. at 430. While Title VII does not require an employer to hire someone because they were previously subjected to discrimination or because they belong to a minority group, it requires the removal of artificial, arbitrary, and unnecessary barriers that function to discriminate on the basis of a protected classification.³⁷[37]Id. at 431. If the practice cannot be shown to be a business necessity and related to job performance, then the practice is prohibited.³⁸[38]Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) Since, the high school completion requirement and both aptitude tests had no relation to success in employment, they were prohibited by the statute.³⁹[39]Id.

The Supreme Court in Watson v. Fort Worth Bank and Trust then tackled a hiring practice that was not facially discriminatory, but produced a discriminatory result. On four separate occasions, Clara Watson, a Black woman, was bypassed for a promotion in favor of a white candidate and in each instance, the supervisors involved in denying the promotion were white.⁴⁰[40]Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 982 (1988) No uniform hiring criteria were used in making these decisions; rather the supervisors used their subjective judgment.⁴¹[41]Id. Her case advanced a disparate impact theory that some employment practices adopted without a deliberately discriminatory motive may function equivalently to intentional discrimination.⁴²[42]Id. at 987. The Court endorsed this theory and ruled that disparate impact analysis can apply to both subjective and objective employment criteria, even if those criteria are facially neutral.⁴³[43]Id. at 990.

Applying the Law to the Rooney and Selig Rules

The NFL’s Rooney Rule requires every team with a head coaching vacancy to interview at least one diverse candidate. The Rooney Rule is legally permissible because it does not discriminate against a candidate due to their race, in violation of Title VII. A white candidate who challenged the rule, as it currently reads, would likely fail because the rule does not explicitly exclude them from any coaching or front office positions. By creating more opportunities for minority candidates, white candidates are not being barred from advancement or having their rights restricted. Every opportunity that was previously afforded to the white candidates, will still be open. Rather, the plan eliminates a racial imbalance in the positions.

If challenged, league policies would be reviewed under the two-step requirement in Johnson. For both leagues, it would likely be found that a “manifest imbalance” exists in the representation of minorities or female coaching and front office candidates. By comparing the percentage of qualified minorities, 35% of assistant coaches in the NFL are black, compared with the percentage of head coaches, 9%, an imbalance clearly exists. In MLB, eleven of the twenty-nine bench coaches are currently minorities, nearly 38%. In comparison, 20% of managers are minority, and the league also has an imbalance. Next, any plan cannot trammel the rights of male or white employees or create an absolute bar to their advancement. Neither rule does such a thing and would not likely be struck down if faced with a legal challenge.

Under the disparate impact analysis, a black candidate may succeed in bringing a claim against the league. Each team’s hiring criteria across both sports is subjective to the owner, hiring decision maker, and what the team is looking for in a candidate. Since there is no objective criteria being used, the employment practice may have discriminatory effects, even if unintended, similar to the practice in Watson. The disparate impact analysis is applied in facially neutral, but discriminatory outcome cases. A team could be in violation of Title VII by having informal hiring practices involving subjective decision making that leads to discriminatory results.

In attempting to improve their rules, the NFL and MLB are actively searching for ways to increase minority representation. For starters, MLB should adopt the NFL’s recent rule changes. MLB can award draft pick compensation for teams that lose minority coaches to manager or front office positions. The league can also award additional international signing bonus money. By establishing this, the league would succeed in promoting diversity for managers and front office positions and the players. However, the leagues must be careful that their policies do not bar the advancement of white candidates and restrict their rights. For instance, it would likely be impermissible for a league to directly award draft pick compensation or international signing money, to teams that hire a minority candidate. Doing so could reasonably be viewed as excluding a white candidate from the position and could subject the leagues to a reverse discrimination claim.

Additionally, the leagues could create training programs for underrepresented candidates. Similar to the program in Weber, programs that would help teach or improve the skills required for these positions would likely be permissible because they are aimed at eliminating historical racial or gender imbalances in these position. Leagues could go one step further in establishing that the training programs would exist until the percentage of minority head coaches, managers, and front office executives reflected the percentage of these groups in the local labor force. However, this would be difficult as many industries are currently experiencing similar problems in improving minority representation, so identifying the proper percentage in the local labor force could prove contentious and fact intensive.

Conclusion

The Rooney and Selig Rules were designed to create opportunities for historically underrepresented candidates. Speculation continues to linger, however, about the rules’ effectiveness because of the dearth of minority head coaches and front office executives. Since creating the Selig Rule 22 years ago, the MLB has failed to update it. At a minimum, the league should mirror the Rooney Rule’s requirement to interview at least one minority candidate for the job openings. Additionally, MLB can award draft pick compensation or international signing money to teams that lose minority employees to head coaching or front office positions on another club. The NFL’s continual updating of the Rooney Rule has not so far created any legal trouble for the league. Future updates must be careful not to require hiring a candidate purely because of race, sexual orientation, gender identity, or other identifying factor.

Written by: Jordan Goldstein
Jordan is a 2022 J.D. Candidate at Brooklyn Law School