A Team Player

One of the earliest reactions to Title VII of the Civil Rights Law of 1964 dealt with whether customer preference constituted a bona fide occupational qualification (BFOQ), an exception built into the law to provide an escape hatch for what would otherwise constitute unlawful discrimination.

Was upper body strength a necessary requirement of the job of firefighter such that women were not physically qualified to perform the necessary functions of the job? Must prisons allow female guards when part of the job required they oversee showers, thus denying male prisoners privacy? Could movie producers only cast women in roles of women?

What about an airline whose passengers demanded only stewardesses who said “fly me”?

The issue arose again in the Title IX context when an accusation of sexual assault floated around the locker room about a male student, a co-captain of his team at Haverford College.

This is an action brought by a college athlete who contends that he has been unfairly excluded from team membership because of unfounded allegations that he committed a sexual assault and exhibits misogynist attitudes. He contends that Haverford College’s Sexual Misconduct Policy, created to meet the requirements of Title IX, constitutes an enforceable contract, and that his removal from the team violated procedural rights conferred by the Policy. Now in his final semester of eligibility, he has moved for a temporary restraining order reinstating him to the team. The record before me leaves no question that there has been a painful tear in the social fabric of Haverford College. But as to the specific legal question before me, I conclude that plaintiff has not met the demanding standard for preliminary relief, and his motion must therefore be denied.

The plaintiff initially withdrew from the team voluntarily after the coach learned of the accusation and fulfilled his duty as a mandatory reporter. But the purported victim chose not to pursue a complaint, thus ending any official Title IX investigation or action. The plaintiff was neither proven to have committed any sexual assault, nor given an opportunity to defend. But the rumors still lingered.

Shortly thereafter, Plaintiff met with his coach, informed him of the Title IX Office’s conclusion, and asked to rejoin the team. The coach, however, advised John that he was no longer welcome on the team, as the other captains did not want him to rejoin. At a follow-up meeting on March 15, the coach allegedly advised John that the other captains’ position was driven by their belief in the veracity of the sexual assault allegation. One week later, on March 22, Plaintiff had another meeting with his coach, the Title IX Coordinator, the Athletic Director, and the co-captains. At this meeting, his co-captains emphasized that their opposition to Plaintiff returning to the team was driven by (1) the sexual assault allegation and (2) unspecified misogynist behavior by Plaintiff. The coach, relying on these statements by the co-captains, stated at the meeting that Plaintiff would not be allowed to rejoin the team.

There was, of course, the sense that the plaintiff was vagely misogynistic, even if he was no different a person than he was before the rumors, when he was not only very much a part of the team, but made a co-captain. But once the accusations of sexual assault were added, and despite there being no finding, even a baseless and biased finding, the rest of the team decided that he was a pariah.

After the administration backed the coach and team, a plan was proposed to allow plaintiff to talk to his co-captains to persuade them to allow him back within the fold.

Plaintiff subsequently met with his coach on October 24, 2022. During the meeting, the coach acknowledged that the allegation of sexual assault was not a proper basis to keep Plaintiff off the team, but that his teammates also raised other concerns with Plaintiff returning to the team that were unrelated to the assault allegation. The coach would not elaborate and insisted that Plaintiff discuss these concerns directly with his teammates. Plaintiff was unable to meet with two co-captains of the team until several weeks later on December 2, after the winter season had commenced. During the meeting, one co-captain—Captain A—was steadfast in his belief that Plaintiff should not return to the team. When questioned on why, Captain A noted that he had general concerns with Plaintiff’s treatment of women but did not identify any specific past event or occurrence demonstrating this behavior.

Presumably, plaintiff possessed the skills necessary to hold a place on the team. It was understood by the coach and administration that there was no Title IX sexual assault upon which to hang their hat. The only impediment to plaintiff rejoining his team was that his teammates didn’t like him anymore because of his generalized misogynism. Was the preference of his teammates sufficient to deny him membership on the team?

The coach averred that his decision not to allow plaintiff back wasn’t about the sexual assault rumor, or the vague claims of misogyny, but because of the disruption it would cause with the team.

A significant number of Doe’s former teammates told me that they were deeply uncomfortable with Doe rejoining the team. Many said they would quit if Doe were re-instated. I decided that Doe’s participation on the team would negatively impact the team atmosphere and severely hinder or eliminate the team’s ability to perform to their fullest potential.

My decision was not meant to be punitive to Doe, but instead was a necessary operational decision to pursue optimal team performance.

While this could be characterized as “heckler’s veto” of sorts, the better analogy seems to be customer preference, that other members of the team preferred not to play with plaintiff, the reasons for which were no longer relevant to the coach, but that allowing plaintiff back would have resulted in sub-optimal team performance. There is, of course, a fair concern about why plaintiff wanted to rejoin a team that didn’t want him, and would have likely been hostile toward him, but that’s plaintiff’s choice.

From the perspective of Title IX, once plaintiff was tainted by an unproven and undefensible allegation, the consequent sense of the team was that they would rather not have a potential misogynist. their former teammate, their former co-captain, in their midst. And their preference was good enough for the coach, college and court.

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