Stephen Miller’s America First Legal files an EEOC complaint against the NFL, adding to the wave of challenges against a hiring practice widely used in corporate America.
With nine minority head coaches lined up to lead NFL teams in 2024, the Rooney Rule is having one of its best years ever.
The question now is whether the hiring practice — and its progeny in corporate America — will stay in the game much longer amid a wave of legal challenges to workplace diversity, equity and inclusion (DEI) initiatives. On Tuesday, a conservative legal nonprofit filed a federal civil rights complaint against the NFL, alleging that the rule is illegal.
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“If the National Football League truly wants to end discrimination in the employment process, then the NFL should stop discriminating in the employment process, follow the meritocratic system it displays on the field, and eliminate the Rooney Rule,” said Ian Prior, a senior adviser with America First Legal, the nonprofit founded by former Donald Trump adviser Stephen Miller.
The NFL did not immediately respond to a request for comment.
Hundreds of companies have adopted some form of the Rooney Rule since 2003, when the league began compelling teams to interview minority
candidates for any head coaching position. Many Fortune 500 companies go further, with some requiring as many as three-quarters of job contenders come from underrepresented groups, or offering incentives to select them.
Now, some legal scholars and conservative activists say the hiring practice — referred to in the private sector as “diverse candidate slates” — could be legally vulnerable, especially since the Supreme Court upended race-conscious college admissions in June, sparking a wave of legal challenges against corporate diversity, equity and inclusion (DEI) initiatives.
Kenji Yoshino, a New York University law professor and director of the Meltzer Center for Diversity, Inclusion, and Belonging, consults with Fortune 500 companies on the legal risks facing DEI programs. The center rates programs “green,” “yellow” and “red” depending on their level of risk, with the last being the most risky.
“The Rooney Rule is squarely in the yellow zone,” Yoshino said in an interview.
That’s because the practice typically allows hiring managers to consider race and gender when populating candidate pools, which could be perceived as a form of discrimination, Yoshino said. On the other hand, candidates are not ultimately chosen based on those characteristics, so there’s a “firewall” between sourcing and the final decisions, he said. The practice, he added, has been deemed legal by several lower court cases in the 1990s. Yet over the past year, signs have emerged that it may again be tested in court.
The Equal Employment Opportunity Commission complaint filed Tuesday contends the Rooney Rule violates Title VII of the 1964 Civil Rights Act and that the agency should investigate.
“It 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,” the letter says.
Similar allegations have been leveled against programs in corporate America.
In January, America First Legal accused pharmaceutical giant Sanofi Pasteur of discrimination because its “diverse slate policy” requires at least one person of color and one woman be considered for an open position. In a pair of Jan. 2 letters addressed to the EEOC and the Office of Federal Contract Compliance Programs, the nonprofit accused the company of violating federal law and said it should be investigated. EEOC complaints can be precursors to lawsuits.
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