Suits In The WorkPlace

The Don Imus of soccer coaching?

A recent case out of the Fourth Circuit involving the University of North Carolina women's soccer team demonstrates, for me, how far women's athletics have come since I was in college in the middle 70s. Or how far they have fallen.

The Jennings case was a Title IX claim brought by woman who was cut from the UNC women's soccer program. She and another teammate alleged a pervasive and apparently unending pattern of abuse from her head coach in the form of constant and routine references to sexual activities by the women on the team. Obviously, there were generic denials by the head coach and other women on the team not involved or apparently unoffended by the conduct alleged. However, it seems clear from the tenor of the discussion in the court's opinion that obscene, sometimes mercilessly obscene, banter occurred on a regular and frequent basis between the players and their coaches.

Now, the practice and game settings of a college athletic team, particularly a college athletic team playing at the elite level of Division I, are not black-tie dinner party, or even a white collar office, environments. Emotions run high, and it is not uncommon for coaches to berate and scream at players in an effort to get them to play up to their potential. But the picture that appears from the undisputed record in this case is one of a coach's willingness to participate in his players discussions of their sex lives, to the extent in some cases of asking who they were sleeping with, how frequently, and then using that information to taunt or belittle the individuals involved. I can't believe that any academic institution would find such conduct appropriate, especially under circumstances where the authority figures are male and the subordinates are female.

Certainly the Court of Appeals had difficulty with what was happening. I happen to agree with the dissent in this case that the majority lost track of what it was supposed to use to measure the problematic conduct, namely the requirement under Title IX that the plaintiff demonstrate she was denied the benefits of an educational program or activity on the basis of her gender. Notwithstanding the litany of allegations against the UNC soccer coach, it was quite clear that most of these activities did not occur in the presence of the principal plaintiff, but actually happened before she arrived at UNC's storied Chapel Hill campus. The plaintiff herself was subjected to only two episodes of this kind of banter and intrusive questioning and did not articulate how exactly this denied her the benefits of an educational program. But the fact remains that what emerges from the Court's recitation of the evidence is that the UNC team was a place where it would have been difficult to focus on soccer unless you were very comfortable talking about your sex life in the presence of someone old enough to be one of your parents. And a parent of the opposite gender, no less.

The case will proceed to trial on Jennings' claims of a hostile educational environment and on her claims that the coaches acted under color of state law to deprive her of her right to be free from sexual harassment in an educational setting. I can't imagine the university is thrilled about having this laundry hung out on the wash line.