DEI Under Scrutiny, Part VII: Re-examining the Implementation of ‘Rooney Rule’ Diverse Slate Initiatives

Quick Hits

• The NFL’s Rooney Rule—designed to ensure that minority and women candidates are considered for certain coaching and/or senior-level positions—is facing a legal challenge alleging it is unlawfully discriminatory.
• The complaint comes amid increased scrutiny of and legal challenges to DEI programs following the Supreme Court’s 2023 decision on race-conscious admissions in higher education.
• Employers committed to diverse candidate pools may want to consider steps to mitigate potential legal risks with program modifications, where appropriate, in light of this development.

On February 6, 2024, America First Legal (AFL) sent a request for investigation to the U.S. Equal Employment Opportunity Commission (EEOC) urging it to investigate the NFL and its member clubs over their adherence to the Rooney Rule and other DEI programs designed to provide opportunities to interview for minority and female candidates for certain coaching and senior-level football operations and front-office positions. 

AFL, which has been targeting businesses and institutions across the United States over their DEI programs, alleges that the NFL’s Rooney Rule and other DEI programs are unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964.

The EEOC investigation request is the latest in a growing number of challenges on multiple fronts brought by activist groups (including AFL), investors, certain state attorneys general, and employees to employers’ DEI initiatives following the June 2023 Supreme Court of the United States decision in Students for Fair Admissions, Inc. v. Harvard College (SFFA decision), in which the court held that certain race-conscious admissions policies in higher education were unconstitutional.

The Rooney Rule

In 2003, the NFL adopted the Rooney Rule, named after Dan Rooney, the late owner of the Pittsburgh Steelers and the former chair league’s diversity committee. The rule originally required teams to interview at least one or more diverse candidates when hiring for a head coaching vacancy.

The NFL has modified and expanded the Rooney Rule on several occasions. According to a statement from the NFL in 2020, the rule was expanded to require teams to interview at least two external minority candidates for head coaching positions and at least one minority candidate for coordinator positions and senior football operations and general manager positions. Also, the rule now requires teams to interview members of minority groups and/or women for senior level front-office positions.

As one component of diversity and inclusion initiatives, many employers have adopted some version of the “Rooney Rule” (more commonly referred to as a diverse slate initiative) in an effort to ensure that members of underrepresented groups are considered for job openings.

DEI Comes Under Fire

However, employer DEI programs are facing new questions following the SFFA decision. While the decision was specifically focused on higher education admissions, the decision’s Court’s reasoning could influence the interpretation of similarly worded nondiscrimination provisions in employment laws, namely Title VII (employment) and Section 1 of the Civil Rights Act of 1866 (42 U.S.C. § 1981) (race discrimination in contracting).

Shortly after the SFFA decision, EEOC Commissioner Andrea Lucas authored an article expressing the view that the decision could implicate a range of common employer DEI initiatives, specifically calling out “selecting interviewees partially due to diverse candidate slate policies.” 

In this context, AFL alleged in its EEOC investigation request that the Rooney Rule “facially violates” Title VII (42 U.S.C. §§ 2000e-2(a) and (d)) because given the limited time teams have to make hiring decisions on coaches has led to “sham interviews” and resulted in “fewer opportunities for similarly situated, well-qualified candidates who are not minorities.”

AFL alleged “[i]t is abundantly clear that the NFL and its member teams do indeed limit, segregate, or classify their employees or applicants for employment in ways that deprive at least some individuals of interview and employment opportunities specifically because of race, color, or sex,” notably referencing a little-used section of Title VII (§ 2000(e)(2)(a)(2)) that prohibits “limit[ing], segregat[ing], or classify[ing]” employees and applicants for employment. There is limited authority interpreting the meaning of this section, though it facially appears to cover a broad range of conduct.

AFL also alleged that other NFL programs beyond the Rooney Rule, such as the leadership programs for women of color and its program for the development of game officials from college football to the NFL with an emphasis on “diverse” candidates, “facially violate” Title VII.  

Legal Considerations

Before the SFFA decision, the historic trend in case law had been that diversity outreach that seeks to expand opportunities or to increase the size of qualified candidate or employee pools as part of DEI efforts and initiatives presented comparatively less legal risk. But the Supreme Court’s reasoning on race-conscious admissions has raised questions about whether numbers-oriented or deadline-driven initiatives with clear screening out (e.g., one out of five interviewees or employees must be diverse) could be viewed skeptically by courts.

In particular, questions remain over the lawfulness of diverse slate policies to the extent that they require a certain number of diverse candidates be considered for every opening in a way that creates a “zero-sum” equation whereby diverse candidates are advanced to the exclusion of other qualified candidates who do not self-identify in one or more diverse categories.

Still, the full impact of the SFFA decision on employment and whether diverse slate initiatives similar to the Rooney Rule are unlawful is not yet known. Prior to the SFFA decision, there had been no direct court challenges to the Rooney Rule as a standalone practice, and few cases directly addressing diverse slate interview practices, in large part likely due to the challenges in proof of causation and damages (i.e., that the interview practice alone caused an adverse employment decision).

The Supreme Court has declined recent opportunities to further address admissions in the education context, but the Court is currently reviewing Title VII standards for proof of injury, which could expand the basis for legal challenges to DEI and other programs such as diverse slate initiatives.

Key Takeaways

In light of these developments, employers that seek to continue or even expand their DEI and environmental, social, and governance (ESG) commitments by maintaining or developing initiatives designed to ensure that candidates are selected from a diverse candidate pool may want to consider steps to mitigate risk of a successful discrimination claim in line with their risk tolerance, which can include:

• reviewing whether there is an actual absence of diverse applicants, based on applicant pool samples, and for specific roles;
• augmenting the channels used to publicize openings that have historically attracted fewer candidates;
• establishing guidelines for advancing prospective candidates to ensure all candidates advanced through the selection process meet predefined minimum qualifications;
• avoiding caps on the size of interview pools or hard requirements to interview a diverse candidate for every opening;
• keeping diversity demographic information about job candidates hidden from decision-makers through the interview process; and
• providing periodic refresher training to individuals responsible for interviewing candidates about permissible and impermissible criteria for determining which candidates advance through the interview process.

For more information on DEI policies, initiatives, and strategies including increased demands for inclusivity and belonging in the United States and globally, as well as challenges and litigation threats following the Supreme Court’s decision that race-conscious affirmative action admission policies violate the Equal Protection Clause and the Fourteenth Amendment, please see Ogletree Deakins’ “DEI Under Scrutiny” series, which examines the evolving DEI legal landscape since the Supreme Court’s decision and offers employers assistance in balancing these concerns while moving forward with legally defensible programming and initiatives.

To assist employers with navigating these new challenges, Ogletree Deakins’ DEI Task Force—a multidisciplinary team of lawyers from our Diversity and Inclusion, Environmental, Social, and Governance (ESG), Litigation, OFCCP Compliance, Government Contracting, and Reporting, and Pay Equity practice groups—has developed a toolkit to assist with evaluating DEI initiatives, assessing legal risk, and providing recommendations and best practices. For more information, please contact the Ogletree attorney with whom you work or email clientservices@ogletree.com.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity and Inclusion and Employment Law blogs.

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