Friday, 19 April 2013 08:36
By Doug Hanson
The U.S. Court of Appeals for the Third Circuit recently addresse d whether Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Educational Amendments of 1972 (Title IX) may prohibit discrimination even in the absence of a typical employer-employee relationship.
March Madness – the high school version
A female referee worked for a basketball officials association as a basketball referee in New Jersey and Pennsylvania for over ten years. The association assigned referees to officiate regular season high school basketball games. The state’s athletic program controlled and supervised post-season tournament games and assigned officials to referee those games. After the referee was not selected to referee boys’ games during the regular season or post-season, she alleged gender discrimination under Title VII and Title IX against the association, the state’s athletic program, the school’s conference, and the school district under employment agency and vicarious liability theories.
The referee asserted the association had not assigned her to officiate at boy’s regular season games because of a policy of discrimination against women officials. She also alleged that the state’s athletic program had not assigned her to officiate at boys’ post-season games due to discriminatory policies against women officials. She asserted that all remaining defendants assisted in the discriminatory practices. All defendants did concede there was a scarcity of women officials, but maintained this scarcity was not predicated upon any written discriminatory policies or practices.
The federal district court dismissed the referee’s complaint due to legal technicalities without addressing the merits of her discrimination claims. The referee appealed to the Third Circuit.
Employment Agency Control
The Third Circuit stated the district court’s finding that defendants were not covered by Title VII meant that defendants were free to discriminate on the basis of race or sex. The Third Circuit disagreed and found that Title VII does not contain any language to suggest that Congress intended to exclude school sports officials from the ameliorative provisions of Titles VII and Title IX.
In its analysis, the Third Circuit stated, to state a claim for Title VII, the referee must allege an employment relationship or an employment agency. An employment relationship is defined by the level of control exerted by an alleged employer over and alleged employee. Factors utilized in determining the level of control include: 1) which entity paid compensation, 2) which entity had authority to hire and fire and 3) which entity exercised control over the daily activities.
The state’s athletic program controlled the post-season tournaments, directly assigned officials to post-season games and paidreferees for their post-season officiating. Officials chosen to participate in post-season officiating must pay dues to the state’s athletic program, enter into agreements with the state’s athletic program and execute liability waivers. The state’s athletic program provided liability insurance to officials and trains officials. Officials are required to abide by the rules and regulations and wear uniforms indentifying them as state athletic officials. Viewing these facts, the Third Circuit found the state’s athletic program liable as an employer for post-season games.
The school district retained input as to which officials were assigned to each game, choose the time, date, and location of the games, and paid officials for their work during basketball games. These factors provide the indicia of an employer-employee relationship. Therefore, the Third Circuit found the school district may be identified as an employer in this case.
The basketball officials association did not deny it was within the ambit of the Title VII definition of employer. The association, however, asserted there had to be an employment relationship to be liable under an employment agency theory. The Third Circuit disagreed. An employment relationship had been established as to the school district and, therefore, the association was liable as an employment agency.
As to the school’s conference, it did not pay officials nor contribute to their training. The Third Circuit rejected the referee’s claims that the school’s conference could be liable as an employer under Title VII.
The Third Circuit next examined the claims of vicarious liability as to the association, the state’s athletic program and the school’s conference. The association provided training and evaluation requirements for its officials and required them to attend the state’s athetic program’s rule meetings. The state’s athletic program exerted some control, but the Third Circuit was unable to find sufficient control or authority to create vicarious liability for the association’s actions. Finally, the Third Circuit found sound control, albeit insufficient control or authority to impose vicarious liability as to the school’s conference for the association’s actions.
The Third Circuit reversed the district court’s decision, in part, and sent to back down to the district court to be reheard.
This case illustrates the broad and liberal interpretation of an employment agency for purposes of Title VII and Title IX analysis. Even employees not within the purview of the typical employment relationship may be protected by Title VII and Title IX based on elements of control, pay and direction of activities.