Sports Law Blog
All things legal relating
to the sports world...
Wednesday, May 02, 2007
Action on the Court (of Appeals), Part II

As promised, here is the third, and potentially most far-reaching, of the sport-related cases out of the federal courts of appeals. In Jennings v. University of North Carolina, the en banc United States Court of Appeals for the Fourth Circuit reversed a grant of summary judgment and remanded for trial in a sexual-harassment lawsuit by a former UNC women's soccer player against long-time Head Coach Anson Dorrance and several university officials. Jennings, who spent two years as a back-up goalie before being cut from the team, brought claims under Title IX (which prohibits discrimination or denial of benefits "on the basis of sex" by educational institutions receiving federal funding) and the Equal Protection Clause. Jennings sued along with another former player, Debbie Keller; Keller's claims settled.

Jennings's case centers on the sexually charged and sexually explicit atmosphere within the UNC soccer program, mainly sexually oriented discussions among the players in which Dorrance often participated. This included questions and comments, in vulgar and explicit terms, to and among players about their dating, personal, and sexual activities; comments Dorrance allegedly made to a male trainer about wanting to have a threesome with his Asian players; and directly questioning Jennings about her current sexual partner. Jennings testified that this focus on sex and sexual activity made her feel "uncomfortable, filthy and humiliated." The majority opinion recites a number of such sexually explicit incidents over and over again throughout the opinion in holding that Jennings had put forward evidence which, if believed, would allow a jury to find that she had been the victim of sexual harassment.

The case, particularly in the very different pictures painted and conclusions drawn from the record by the 8-judge majority and the 2-judge dissent, has some interesting features. And, as a diclaimer, let me say that I do not know much Title IX law (beyond the very basics), so I welcome comments from people who know more than I do.

First, there is the unique context of sports, sports teams, and the locker room and practice field, where much of the harassing talk took place. Conversations in team locker rooms often focus on sex, usually in frank and vivid detail about who is engaging in what acts how often with whom. I know this from firsthand experience working with men's college basketball teams as a student manager and as a coach and I have no reason to believe it is different with other men's sports. The facts in the UNC case (especially as described in the dissent's narrative) suggest there are similar conversations in women's locker rooms.

The majority and the dissent both purported to account for the unique context of high-level competitive athletics and the team locker room in considering whether anything actionable had occurred. The majority insisted that its "conclusion takes into account the informal, sometimes jocular, college sports team atmosphere that fosters familiarity and close relationships between coaches and players." The dissent similarly insisted that the "proper baseline by which to judge the language of Coach Dorrance and Jennings’ teammates is the world of competitive collegiate athletics in which coaches, by necessity, have a much more casual and personal relationship with their student-athletes." But they obviously reached very different conclusions.

Second, it seems somewhat strange to say that Jennings was discriminated against "on the basis of sex"--that is, because she is a woman. The majority insisted that "Dorrance’s persistent, sex-oriented discussions, both in team settings and in private, were degrading and humiliating to his players because they were women." But that is true only if all discussions of sex and sexual conduct, if pervasive enough, are harassing or discriminatory towards women. Thus, any woman who is offended by sex-oriented talk (as Jennings was) is being harassed or disadvantaged because she is a woman. But is Title IX (or Title VII, in the analogous employment context) supposed to be that broad?

The facts show that Dorrance talked to Jennings about sex and sexual activities just as much as he talked to the other UNC players (all of whom also are women, obviously) about sexual activities. Aside from one incident, in which Dorrance asked Jennings, in a private post-season meeting, who she was having sex with (as part of a broader series of questions apparently aimed at determining the cause of Jennings' poor academic and athletic performance), all the relevant conversations took place during team meetings, warm-ups, etc. It seems that Dorrance treated Jennings no worse than he treated any other woman on the team in these respects. This environment is perhaps hostile and abusive--and it arguably is too intimate an environment for an educator and his students in an educational institution--but it does not seem hostile and abusive because of sex (in the sense of being female). As the dissent argued, Jennings was not exposed to such sexual comments and banter because she was a woman, but because she was a member of the women's soccer team.

Third, and relatedly, there is the question of how much the outcome of this case turns on the fact that this is a case of a man coaching women athletes. Would the same lawsuit have come about if it was a woman coach having the same sex-oriented conversations and using the same language with her women players? I seriously doubt there would be such a lawsuit by a male athlete against a male coach. The majority again insisted that "Title IX is not a civility code for the male coach who coaches women, and it is not meant to punish such a coach for off-color language that is not aimed to degrade or intimidate." But it is difficult not to see this case as suggesting that male coaches now are more limited in how they can engage their female players in the sort of informal, intimate conversations that all the judges agree are a part of the athletic environment.

Fourth, there is whether Jennings could have been harassed by some of the comments and incidents at issue because most were not directed at her. Several occurred outside of her hearing and several others occurred before Jennings even joined the UNC program -- she only heard about them second- or third-hand, because people still were talking about them. The record shows only two comments directed to or about Jennings. Thus, her claim is about the "environment" of the program more than any harassment directed to her.

Again, I think this case could be far-reaching, particularly because I would not be surprised if the Supremes took this case (assuming UNC and Dorrance seek cert).


Howard, I always appreciate your analysis, but with respect, I think you're missing the point here (much as the dissent does).
For if we strip aside the sports setting and just see this as a classic workplace hostile environment case it doesn't seem odd at all.

You note that "[c]onversations in team locker rooms often focus on sex, usually in frank and vivid detail about who is engaging in what acts how often with whom," and you then assume that "there are similar conversations in women's locker rooms" about sex. I'll note as an aside that men and women often have hugely different ways of speaking about things, but let's assume that's true for the moment.

There are at least two key differences (beyond speaking styles) here: first, no matter the caveats of the majority, the difference of sex here is an issue. Your personal perceptions of camaraderie in a locker room are grounded from a hetero-male-only environment. Think, though, about the gallons of ink have been spilled about the rise of women journalists behind the scenes and how that's "ruined" the locker room in professional sports--i.e., the all-boys' free for all. Similarly, recall how John Amaechi wrote about his feelings of otherness and being left out when his hetero teammates engaged in "boys' talk."

What the player said here was that her coach was injecting a different type of speech into her sphere, and that it was not just unwelcome, it was hostile. This is a classic gender discrimination case--a male in a "male" atmosphere who wants the woman to conform to the notion of how the workplace "should" be (i.e., why object to the Playboy calendars, the sex talk, and relatedly, "there's no crying in baseball"). The only difference in this case is that this woman wasn't the sole female in this work environment.

Yet that does not mean, as one might assume, that the majority of numbers brings about majoritarian power. My second point is that, as a student-athlete, one cannot brush off crude or hostile remarks from a coach (or supervisor) the way one could remarks from co-workers or teammates. This is a classic hostile workplace concern; there is a power inequality here that Title IX seeks to redress. That is, the ability to be free from being _forced_ into enduring such comments.

All philosphizing aside, to me this was an easy case. The coach was crude and lewd, a player (finally) called him on it, and his defense was "what! It's just what we do!" That's just not how we do things.

Blogger gorjus -- 5/03/2007 2:52 PM  

I go back to what I think is the fundamental foundation question here: Whether all discussions and comments about sex in the presence of women (at least when it is a man speaking) are hostile to women.

It is not supposed to be enough that someone injects "a different type of speech into her sphere," that "was not just unwelcome, it was hostile." People are subject to lots of different, unwelcome, and even hostile speech. Title IX and the Constitution are not supposed to function as a general civility code, to prevent people from ever being "crude and lewd." They prevent only that which targets and which affects women because they are women.

Now, your answer to my underlying question appears to be a resounding "yes." Which must mean that crude and lewd, sexual speech is anti-woman. So be it. But recognize that the two must be linked for a case such as this one to have any merit. Especially when the person complaining is not the target of (most of) the speech, but just someone who heard it or, more remotely, heard about it second hand.

And that still leaves us with the question of whether this case would be different if it were a female coach and the implications that has for who is able to coach what teams.

Blogger Howard Wasserman -- 5/04/2007 10:31 AM  

Post a Comment