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Gender Discrimination Hot Issue in New Jersey

Would you find it a bit odd if a woman had never been selected to referee a top-level men’s high school basketball competition? That is the exact argument the Third Circuit refused to dismiss in a claim of gender discrimination brought in New Jersey.  The Plaintiff, Tamika Covington, alleges that despite being qualified, she has been repeatedly overlooked for high profile men’s high school basketball games as part of a willful pattern of gender discrimination.  The Third Circuit cited to the fact that in light of the recent decision by the US Military to allow women to engage in combat, they could certainly handle the physical expectations of a men’s high school basketball game.  A copy of the Complaint can be found here, and the Third Circuit’s Opinion can be found here.

For several years, Ms. Covington has been litigating for the right to officiate boys’ games as well as girls’ games.  She has sued the International Association of Approved Basketball Officials (“IAABO”), over its policy of assigning female officials to officiate at girls’ regular season high school basketball games, as well as the New Jersey State Interscholastic Athletic Association (“NJSIAA”).

Recently, the U.S. Court of Appeals for the Third Circuit ruled in Covington’s favor that she could continue to litigate against these defendants, overruling an earlier decision of a lower court that had dismissed Covington’s case.  The favorable ruling, however, was limited to Covington’s claims under Title VII, the federal law prohibiting discrimination in employment, and did not extend to her Title IX claim. At issue for purposes of the Title VII claims was whether Covington had an employment relationship with these defendants, and the court of appeals agreed that she did. Hamilton School District has influence over the officials’ work assignments, it chooses the time, date, and location of the games, and pays the official, making it an employer for purposes of the regular season. For similar reasons, the NJSIAA is considered an employer for purposes of the post season. And the IAABO is potentially liable under Title VII because even though it does not directly employee officials, it operates like an employment agency, facilitating officials’ work assignments. Now that the appellate court has concluded that these defendants are governed by Title VII, Covington will be able to argue that policy restricting her assignments to boys’ games violates the law — an argument on which she seems likely to prevail.

The Opinion contained some rather strong allegations and this has drawn commentary from those on both sides of the issue. For example, a footnote in the opinion noted, “It is unlikely that any female will believe that there wasn’t a trace of discrimination if only males were uniformly selected to referee the most desirable games,” In the body of the opinion, Judge Dolores Sloviter, quoted the Third Circuit’s 1987 opinion in Martin v. United Way of Erie County, saying, “Congress enacted Title VII ‘for the ameliorative purpose of eradicating prohibited forms of discrimination from the workplace.'” She went on to state that the defendants argued that they can’t be held to the provisions of that statute because “they are not encompassed within the definitions of the relevant statutes; in other words, they are free to discriminate.”

Lawyers for both sides seem to agree that the intentions of the three-judge panel were clearly known given the style of substance of the Opinion.

Interestingly, 10 female faculty members from the University of Medicine and Dentistry of New Jersey just arrived at a 4.65 million dollar settlement in a sex discrimination lawsuit. Through the use of public records and litigation discovery, the plaintiff female faculty members were able to show a $20,000 dollar starting salary difference between equally situated male and female faculty members.

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