Is the Rooney Rule Illegal?
Last week Florida Attorney General James Uthmeier sent a letter to the NFL claiming that the League’s Rooney Rule, aimed at increasing diversity in the top ranks of NFL teams, is “blatant race and sex discrimination.” Concurrently, Uthmeier posted a video to X contending that the Rooney Rule violates Florida law.
The
Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney,
requires among other things that a team “interview at least two external
minority candidates in person for open head coach and GM positions and at least
two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women.
Uthmeier’s challenge is ostensibly to the NFL’s efforts to increase minority representation in its management ranks, but in reality it goes so
much further. This kind of interview set-aside to promote diversity is common.
For example, law firms have also implemented similar types of rules—e.g., Mansfield rules. Thus, if
this domino were to fall, we may have further challenges to all sorts of efforts to promote diversity.
Florida’s
antidiscrimination law, Title XLIV Section 760.10, largely replicates the
language of the federal employment discrimination statute, Title VII of the
Civil Rights Act of 1964. So, in the interest of generality, I’ll consider how
Title VII may bear on the Rooney Rule. In relevant part, Title VII states:
It
shall be an unlawful employment practice for an employer—
(1)
to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2)
to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or national origin.
Now the
Rooney Rule is about interviewing, and thus not directly about hiring,
discharging, or about “compensation, terms, conditions, or privileges of
employment.” Consequently, subsection (1) seems inapplicable.
However,
subsection (2), which applies to “classifying [] employees or applicants . . .
because of such individual’s race [or] sex,” is putatively relevant. Indeed,
the Rooney Rule undoubtedly classifies applicants to coaching positions as
“minorities” or not, which in turn is defined with respect to their race and
sex. Importantly though, classification alone is not enough to constitute a
violation of Title VII. In order for the classification to violate Title VII,
it must “deprive or tend to deprive [an] individual of employment
opportunities.”
On my
review of the case law, I did not find any case that squarely considered
whether these kinds of set-asides for interviews violate Title VII. Thinking
about how the statute would apply and whether anyone is deprived of an employment
opportunity will depend on how a team manages its hiring process in light of
the Rooney Rule. To see this, consider some examples:
(1) Suppose a team has a “merit”
ranking of 15 candidates for its open coaching position. To be clear, it’s
dubious whether there is such a thing as a purely merit ranking, but we accept
the assumption arguendo. Suppose further the third and sixth candidates are qualifying Rooney Rule candidates. The team understands the requirement of
the Rooney Rule and thus decides to interview the top six candidates from its merit ranking.
Under
this decision, it is unclear who might be deprived of anything. Consider the seventh
candidate—who we’ll assume is not a Rooney Rule candidate. Why are they
deprived? Even if the Rooney Rule was not in effect, there is no reason to
believe the seventh candidate would be interviewed.
(2) Suppose a team has decided it
wants to hire Junior Lombardi, and it decides that they’ll interview some
additional people to satisfy the Rooney Rule and also satisfy other social
obligations (like promises to friends to interview their friend). Here again,
it does not seem anyone is deprived of anything. The Rooney Rule candidates may
have been misled and had their time wasted, but there may also be some advantages to
interviewing, like for example it puts one’s name out there for future searches.
(3) What if a team interviews all of
the candidates it wishes to interview, of which one is a
Rooney Rule candidate. The team then decides to add one more Rooney Rule
candidate to satisfy its obligation. And we can assume the additional candidate
is actually low on the merit ranking for the team. Even here, no individual is
deprived of anything—because in the absence of the Rooney Rule, no other
candidate would have been interviewed, even if they were jumped on the
so-called “merit” queue, because they didn’t make the team’s initial list of preferred interview candidates.
(4) Now suppose a team interviews
all the candidates it wants to and that includes two Rooney Rule candidates.
Again, no one is deprived of anything and the Rooney Rule did not change any
decision making of the team.
(5) Finally, consider a team that decides to limit its number of interviews to six candidates because of time limitations. On their so-called merits ranking, the first candidate is a Rooney Rule candidate, and the next qualifying Rooney Rule candidate is ranked eight. The team decides to interview the first five candidates on their merit ranking, and then decides to interview the eighth candidate to round out the set of six.
Here, the candidate ranked sixth on merit has been deprived of an interview opportunity because the Rooney Rule led the team to interview a candidate of lesser perceived merit to satisfy the Rule’s requirements. In the absence of the classification of the Rooney Rule, candidate #6 on the merit ranking would have been interviewed. Thus, in this kind of scenario, there is a potential Title VII violation.
Now there is one possible argument to consider, if a team interviews someone because of the Rooney Rule and then goes on to hire them. In this situation, another candidate may claim to have been deprived of the job due to the classification. That is, without the Rooney Rule, the hired candidate would not even have been interviewed and thus not hired. Therefore, the complaining candidate would argue, but for the Rooney Rule they may have gotten the job instead. Indeed, even if the complaining candidate cannot show that they definitively would have been hired, they may claim to have been deprived of a greater chance of getting the job.
My intuition is that these arguments fail, because after the candidates are interviewed, the team’s hiring decision based on those interviews is causally distinct and separate from the Rooney Rule’s classification. Put another way, a candidate does not have a legally cognizable interest that others should not be considered for a job, and so if a classification promotes another’s consideration, that does not deprive the candidate of anything. And I would contend that this is true even under the Supreme Court’s broader understanding of causation, post-Bostock.
However, the issue is complex and nuanced. In Connecticut v. Teal, Black plaintiffs showed that an initial step in the hiring process, a test administered by the employer, had a racially disparate impact. The defendant state employer argued that the plaintiffs could not complain about that initial step, because the subsequent steps of the screening process eliminated any racially disparate impact. The Court held that doesn’t matter—if any step in the hiring process has a racially disparate impact, that can be challenged. Now, I think Teal is distinguishable: the plaintiffs there were deprived of an employment opportunity at the initial step—they were kicked out by the racially discriminatory test. In our Rooney Rule scenarios, I have argued nobody suffers a deprivation, because the imagined complainant gets an interview—it’s just that they have to endure more competition from others getting interviews. But it would not take much to imagine a court—especially the Roberts Court—seeing Teal as prohibiting any classification based on a protected trait at any stage of hiring, seeing even more competition in a job as some kind of deprivation.
One further point, raised to me by Professor Dorf, is whether this is properly understood
as an issue of the Rooney Rule’s legality under Title VII or whether this is
about when someone would have standing to challenge the Rooney Rule. Based on
the text of subsection (2), it seems that there is not a statutory violation in
the event that no individual is “deprive[d]” of an employment opportunity. Put
another way, the EEOC (or other state authority operating under the state
analogue) would have standing to sue to enforce Title VII, but without showing that the classification does not deprive (or tend to deprive) some individual of something, there simply is no violation.
So, what can we learn from all this? First, there are some plausible ways to proceed in open searches for candidates that utilize the Rooney Rule and that likely do not run afoul of the plain textual meaning of Title VII. Second, there are some ways to structure a search in light of the Rooney Rule that would seemingly violate Title VII—principally, where a team fixes the number of interviews and demotes a candidate for a Rooney Rule candidate. This suggests then that the Rooney Rule can survive legal challenge with good guidance on how to structure open searches in light of the law.
-Guha Krishnamurthi