Institutions of higher education are often perceived as being ahead of the curve when it comes to issues of equality and progressive treatment of members of protected groups. In reality, this is not always the case — especially when it comes to women working as college coaches or as employees within the athletic departments of universities. In fact, there have been several high-profile instances of employment discrimination lawsuits within athletic departments of several “Power 5” athletic universities have made news in recent years. These high profile lawsuits have resulted in much needed increased public scrutiny of important issues of systemic discrimination within our country’s university athletic departments.
Perhaps most notably is the gender and sex orientation discrimination brought by a former field hockey coach and senior athletic official against the University of Iowa athletic department. In that case, Tracey Griesbaum and her partner Jane Meyer were employed by the University of Iowa’s athletic department. Griesbaum, a former field hockey coach at the University of Iowa, and Meyer, a senior department director, were romantic partners during their tenure at Iowa. Throughout their employment, both women alleged they were subjected to gender and sexual orientation discrimination by department director Gary Barta. Meyer and Griesbaum’s relationship was often scrutinized and used against them in their job performance reviews and assessments, despite being approved by administrative officials through appropriate process. Further, Meyer was passed over for promotions and paid drastically less than male coworkers who had fewer job responsibilities and less experience.
The discrimination escalated when Griesbaum was fired in 2014. The University attributed her termination to allegations that she abused her athletes, but an extensive investigation revealed that these allegations were baseless. As a senior department director who recognized the unlawful behavior, Meyer complained about Griesbaum’s termination, explaining that it was discriminatory and unlawful, and brought up additional instances of gender discrimination occurring within the department. The following day, following her complaints, Meyer was subjected to that same discrimination when she was placed on administrative leave and transferred out of the athletic department. Following Meyer’s unlawful transfer and termination, the two former employees filed lawsuit in a Iowa state court. Through the suit, Meyer and Griesbaum argued that they had been victims of discrimination based on both gender and sexual orientation.
In May 2017, a jury unanimously found in favor of Meyer and Griesbaum on all counts. The University of Iowa was required to pay the women $6.5 million in damages, which included back pay, front pay, attorneys’ fees, and emotional distress. The unanimous decision, along with the high monetary award, made this a landmark case for employment discrimination on the basis of gender and sexual orientation, particularly in the context of higher education. As part of its response to the lawsuit, the University also hired an independent firm to conduct an investigation into the practices of each department to determine if there is space for improvement regarding discriminatory policies.
Griesbaum and Meyer’s case was not an isolated incident. Another high-profile example is the 2018 lawsuit brought by a former West Virginia University athletic department employee against the University’s assistant athletic director, alleging that he promoted similar unlawful behavior. The plaintiff, Dia Fortney, alleged that she was regularly subjected to harassment and discriminatory treatment on the basis of her gender. Her supervisor, assistant athletic director Mike Szul, frequently made comments about her appearance, probed into her personal life, and complained about the number of females working in the department. When Fortney complained to Human Resources about the behavior, she was told to figure out a way to deal with it personally and that she was not acting like a “team player”. Fortney was ultimately terminated and replaced by a man with less experience who was given a salary that was $30,000 more than what Fortney was making while employed by WVU.
Like Meyer and Griesbaum’s case, Fortney was subjected to discrimination on the basis of her gender and then faced further discrimination and retaliation for complaining about the unlawful treatment. This compounds the illegality of the University’s conduct. In New Jersey, if an employee suffers the same treatment that Meyer, Griesbaum, and Fortney were subjected to, their employer would be in violation of several state laws as well as strong public policies of the State. Chief among these is the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination prohibits employers from taking discriminatory actions against an employee on the basis of their protected characteristics, such as gender or sexuality. Likewise, the New Jersey Law Against Discrimination prohibits employers from taking any action in retaliation for an employee’s attempt to exercise their rights under the New Jersey Law Against Discrimination The adverse actions taken against the University of Iowa employees violates this law because their treatment and ultimate termination was based upon the protected characteristics of gender and sexual orientation.
In addition to violating the anti-retaliation provision of the NJLAD, Meyer’s transfer following her complaint about the unlawful discrimination that Griesbaum faced would also violate another New Jersey law, the Conscientious Employee Protection Act. This law is New Jersey’s private employer whistleblower protection law and it protects employees from facing retaliation for reporting unlawful behavior or practices in their workplace. In this context, blowing the whistle about violations of the New Jersey Law Against Discrimination constitutes protected activity under the New Jersey whistleblower statute.
While discrimination and retaliation continue to plague athletic departments within universities, it is encouraging to see some victims enforce their rights and be successful in obtaining jury verdicts and equitable relief. The #MeToo movement and increased public scrutiny against discrimination, harassment and retaliation at the workplace continues to bring more awareness to systemic problems far too women continue face in the workplace.