NFL’s Rooney Rule Target of EEOC Complaint

Two-thirds of National Football League (NFL) players are Black, a number that has not materially changed for decades.[1]? 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, the then-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 Equal Employment Opportunity Commission ( EEOC ) from America First Legal (AFL), a legal 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 Rooney’s Steelers, led the team to a Super Bowl victory.

The Rule was considered sufficiently successful that in 2009 it was extended to apply to team general managers, another position which had historically lacked diversity.

Yet, criticism was never far behind.? There were frequently situations in which seemingly qualified minority coaches were passed over or where it seemed that clubs were interviewing a minority candidate solely for the purposes of complying with the Rooney Rule.? In 2003, the NFL fined the Detroit Lions $200,000 for failing to interview a minority candidate after making clear the club’s preference for a specific candidate who was white.

Consequently, the league beefed up the Rule in 2020.? 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 rewarded teams for developing minority coaches and general managers who were hired into those roles with other clubs by providing the developing club with extra draft picks. ?

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, 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 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.?

The legal background

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.?All states (except Alabama) and many cities have passed their own legislation similarly banning such discrimination.?The 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 nonminority 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.

Possible legal challenges

On its face, the recent changes to the Rooney Rule lead to the conclusion that race and sex or gender will be a necessary factor in the selection process, which violates Title VII.?If a white male were to interview and lose out on a position as an offensive assistant coach to a female or minority candidate, at least part of the decision not to hire him could have been his race and/or sex (at least if the club had to hire a female or minority to satisfy the revised Rooney Rule).?That coach could thus 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.? The NFL publicly responded by defending the Rule and its results.? It may have to do so to the EEOC and perhaps a court.

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[1] Useful data on race in sports comes from The Institute for Diversity and Ethics in Sport (TIDES) at the University of Central Florida.?The data in this article is derived from TIDES reports.