Gender Equity

1. Gender Equity Chapter 8

2. Legal Terms • Title IX • Three Prong Test • 13 Title IX Components • Cohen v. Brown • Roberts v. Col. State Univ. • Pretext • Prima Fascia Case • Equity in Athletics Disclosure Act • Title VII • Grove City College v. Bell • Equal Pay Act • Restoration Act

3. Chapter Objectives After reading this chapter, you will know the following: • The various federal gender equity laws and how they apply to sport • The history of Title IX, how it has been interpreted, and how it is applied today • The basic analysis of Title IX athletic claims • Title VII and EPA discrimination laws involving sex discrimination in employment and/or schools • The Equity in Education Disclosure Act, how to find data and review the data

4. What was America like then… Minimum hourly wage $1.60 1st woman allowed to run Boston marathon Roe v. Wade ruling-U.S. Supreme Court 1972 U.S. Supreme Court

5. What was America like then… No faxes, no microwave, no email NOW was not a tense of time Rotary dial phones, not cell phones Nixon was President Equal Rights Amendment-failed Ms. magazine 1st edition 1972

6. Unequal Access and Treatment in Education Quotas of women entering college, Women explained balancing family & their job as part of entrance evaluation, Girls took sewing & boys took auto shop-no choice, Women comprised 1/3rdof college students, Men had financial access with loans, GI bill & scholarships.

7. Inequitable Employment in Education Women promoted & tenured at slower rate, Few women in administration (only 1 female superintendent in US in 1972), Women paid lower salaries than men, reason given, men needed to support their families. 1973 Sports Illustrated

8. Inequitable Educational Programs & Activities • Girl’s made up just 1% of student-athletes, • Virtually no female athletic scholarships existed, • Girl’s did not have access to facilities, equip, or coaching, • Separate men’s & women’s athletic programs, and • Women’s college athletic programs received 2% of funding

9. Title IX of the Education Amendments Act of 1972 “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 21 U.S.C. §§ 168 et seq. 37 words that changed American Society

10. Grove City College v. Bell • 1984 case dealing with the application of Title IX. One of the biggest setbacks for women since passage in 1972. • Court found that Title IX was applicable only to those parts of the institution that received federal funding; thus athletics were excluded.

11. Civil Rights Restoration Act of 1987 Legislation reversed the findings in Grove City College and applied Title IX institution-wide. Thus, if any part of an institution received federal funding, the entire institution was subject to the specifications in Title IX.

12. Title IX Applies When… Discrimination is based on sex, 2. Involves an educational institution, 3. That receives federal funding. Enforced by Department of Education Office of Civil Rights

13. Regulation and Enforcement • Department of Education • 1975 regulations focus on equal opportunity: • Program areas (i.e., equipment, locker rooms) • Effective accommodation of interests and abilities and selection of sports for both genders • Equivalency in financial aid • 1979 Policy Interpretation designed to provide ways for schools to measure whether they comply with Title IX and the 1975 regulations • Part 1: Financial assistance • Part 2: Equality in program areas • Part 3: Effective accommodation

14. Title IX -13 Athletic Components • Participation (effective accommodation), • Scholarships, • Recruitment of student-athletes • Travel & Per Diem Allowance, • Scheduling of Games & Practices, • Opportunity to Receive Coaching & Coaching Compensation

15. Title IX -13 Athletic Components 7. Locker rooms, strength training, & facilities, 8. Medical training facilities & services, 9. Housing, dining facilities, 10. Publicity, promotion & marketing, 11. Support services, 12. Academic support & tutoring, & 13. Equipment & Supplies. TITLE IX COMPLIANCE, MUST COMPLY WITH ALL 13

16. Cohen v. Brown University(page 187) The university, needing to cut its budget, eliminated university funding for men’s golf and water polo and women’s gymnastics and volleyball. Challenged the argument that women were interested enough in sport opportunities to offer a proportionate number of sport programs Regarded as a victory for women because the First Circuit Court of Appeals took the position that Title IX meant that equal representation for women in sports had to be proportionate to the student body population Cont’d.

17. The Three-Part Test • Prong 1 • Are participation opportunities for both sexes substantially proportionate? • This is a safe harbor if participation of underrepresented sex is substantially proportionate to other sex. If so, then stop here because compliance is determined; if not . . . • Prong 2 • Can the institution show a history and continuing practice of program expansion? If yes, stop here; if not . . . • Prong 3 • Have the interests and abilities of the underrepresented sex been fully and effectively accommodated? Any one prong of the three-part test, if met, demonstrates compliance with Title IX. Do not need to meet each prong.

18. Separate Teams • Schools may sponsor teams for members of one sex • if selection is based on athletic skill, or • if sport is a contact sport. • However, there is no contact sport exception. Contact sports, even if predominantly male, are still taken into account under prong 1.

19. Cutting Teams • Cutting men’s is allowed under prong 1 of the three part test • Done to bring number of male participants into substantial proportionality with number of female participants • Not favored: 2003 OCR Further Clarification • NCAA D-I is where athletic administration has chosen to cut some men’s sports in order to increase the percentage of women competing. (continued)

20. Cutting Women’s Teams • Men from cut teams have never won a lawsuit against a school, where women underrepresented sex • Cutting of women’s teams is not allowed if women are the underrepresented sex, same true for men • Existence of women’s team is evidence of interest and ability • Roberts v. Colorado State Board of Agriculture (1993) • In response to disproportionate numbers of women participating, university cut women’s and men’s team • Women sued • Court ordered school to reinstate women’s team

21. Disclosure of Information • Equity in Athletics Disclosure Act (1998) • Requires all universities that receive federal student aid and have athletic programs to disclose information related to financial aid, athletic revenues, and other resources • Information available to the public at EADA link • Review University of Wisconsin-Madison EADA: University of Wisconsin data

22. Title IX Employment Cases Analyzed Under Title VII Shifting Burden Analysis • Prohibits discrimination against any employee on the basis of sex in compensation and other benefits associated with employment • Plaintiff merely has to show some negative job action (for example, termination) that was taken on the basis of the employee’s sex Representative Patsy Mink, Hawaii-author Title IX

23. Title VII of 1968 • Prohibits discrimination against any employee on the basis of sex in compensation and other benefits associated with employment • Prima Fascia Case: Plaintiff merely has to show some negative job action (for example, termination) that was taken on the basis of the employee’s sex • Shifting burden analysis • Plaintiff shows prima fascia case, shifts to Defendant • Defendant shows real reason not discrimination, shifts • Plaintiff must show Def. reason pretext real reason discrimination

24. Stanley v. U.S.C. • Plaintiff, Marianne Stanley, sued University of Southern California claiming discrimination under Title VII, Equal Pay Act and Title IX.

25. Equal Pay Act of 1963 • Protects both sexes from pay discrimination based on sex. • Analyzed as Title VII with shifting burdens analysis • The act prohibits disparity in pay for jobs that require: • Equal skill • Equal effort • Equal responsibility • Similar working conditions

26. Equal Pay Act • Equal work: • Two jobs do not have to require identical skill, effort, and responsibility; • the jobs must be substantially equal except for the fact that one employee is paid more even though he or she performs what is basically the same job.

27. Criteria That Justify a Differential in Wages • The Equal Pay Act expressly provides four criteria that justify a differential in wages: • Seniority • Merit • Quantity or quality of product • Any factor other than sex • The employer bears the burden of proving these defenses.

28. Shifting Burden Analysis

29. Stanley v. University of Southern California, 1994 • In-class activity

30. Implications of Risk Management • Failure to comply with Title IX can be costly to institution: • Financial burdens • Image of institution • Satisfaction of participants • Coaches and administrators • Sexual harassment • Lawsuits involving EPA, Title XI and Title VII

31. Correct Information • Boys and girls, men and women’s school sports participation has increased each year since passage of Title IX. • Boys and men are participating in school sports at an all time high, and are funded at an all time high. • Men’s sports continue to receive $3 to every $1 provided to women’s sports. • Title IX is not the reason for cutting men’s sports, the real reason is that athletic administrators chose to do so.

32. Correct Information • 90% of the funding of all men’s college sports goes to one sport…football. • Women make up 52% of college students and graduate at a higher rate than men. • Does not matter the source of money (booster, tickets, advertising, TV, etc.) all resources are to be equitably shared, unless there is a reasonable explanation i.e. different equipment demands (football compared to volleyball). • It is not a sport to sport comparison, rather the overall female participants compared to overall male participants

33. Women’s earnings compared to men after college graduation. $8,000 earning gap women to men. 2012 U.S. Dept. of Educ.

34. 2013 United States Supreme Court

35. Consider this… • Title IX was enacted to provide greater access to, and fairness in education for girls and women because historically they were discriminated against solely based on their gender. • Does your English, accounting or computer class mandate that you as a male or female student generate equal money as the opposite gender for you to be treated equitably in the classroom? • In athletics how much money is generated by a sport does not make it okay to discriminate based upon gender.