America First Legal, which has been leading the assault on DEI in the private sector since the U.S. Supreme Court’s Harvard decision, has asked the Equal Employment Opportunity Commission to investigate the NFL’s use of the Rooney Rule.
Background: The NFL adopted the rule in 2003 following a recommendation by the League’s Workplace Diversity Committee (since renamed the Diversity Equity and Inclusion Committee), chaired by the late Pittsburgh Steelers owner Dan Rooney.
As described by the NFL, the rule requires teams to:
- Conduct an in-person interview with at least two external diverse – minority and/or female – candidates for any GM or head coaching interview.
- Interview at least two minorities and/or women for all coordinator positions.
- Interview at least one diverse candidate for the QB coach position or any senior level executive position at the club.
Some large companies take a similar approach, often informally describing it as their own “Rooney Rule.”
The big picture: After the victory by the Students for Fair Admissions in the Harvard case, which involved academic admissions under Title VI of the Civil Rights Act, America First Legal and other opponents of DEI have shifted the focus to private sector employment decisions under Title VII.
What to watch: Even before Harvard, companies recognized it was illegal to give hiring preferences to individuals based on race, gender, or other protected classes. But companies continue to pursue their diversity goals through other mechanisms, such as ensuring a diverse slate of candidates, expanding recruitment efforts, and identifying barriers to diverse hiring.
Bolstering employer efforts to increase diversity, DEI organizations published a letter to Fortune 500 CEOs promising to support them “every step of the way.” The letter recognizes the difficulty employers face as they benefit from investment in diversity programs while recalculating their risks in light of DEI opponent pursuit of litigation.
Potential alternatives: The Harvard decision gave a nod to other alternatives universities could potentially use, such as allowing applicants to describe the impact of race on their personal backgrounds.
- Opponents of DEI are likely to attack such alternatives as “proxies” for making diversity determinative in an admissions or hiring decision, or at least have the effect of depriving non-diverse individuals of opportunities.
Why you should care: While the EEOC is likely to reject the challenge to the NFL’s Rooney Rule, America First Legal may decide to take its case to the federal courts. Interestingly, the rule has been criticized as being largely cosmetic – achieving little progress in diversity – which could undercut the challenge. But this will not be the only case alleging alternative approaches are mere “proxies” for result-oriented mechanisms. America First and others are trying to make sure that Harvard is not the final word on the legal obstacles to DEI strategies.