On Sept. 28, a jury awarded $3.36 million to Beth Burns, the former head coach for the women’s basketball team at San Diego State University, in her wrongful termination suit. The jury found that the university had retaliated against Burns after she demanded that it comply with Title IX, the federal law that prohibits sex discrimination in schools.
The Burns verdict comes nine years after the California State University system lost three similar cases filed by former Fresno State Athletic Department employees Diane Milutinovich, Lindy Vivas and Stacy Johnson Klein. Clearly, the CSU has a problem.
In part, this problem is rooted in the wider world of college athletics. More than four decades after the passage of Title IX, the college sports industry still resists the gender equity revolution. NCAA annual reports show that women’s sports lag behind men’s in participation rates, scholarship dollars and other measures of institutional support.
A Women’s Sports Foundation survey found that 33 percent of female coaches feared retaliation if they complained about gender bias, and 40 percent had experienced gender discrimination. The Office of Civil Rights, the federal entity that enforces Title IX, receives hundreds of complaints annually.
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In 2014, a complaint was filed with the Department of Justice about the OCR’s failure to investigate 120 California schools where Title IX violations were alleged.
The more insidious problem is rooted in the CSU’s personnel-management system. While the discriminatory behavior and retaliation Burns faced was perpetrated by athletic department colleagues, a cadre of human resources “experts” and CSU in-house counsel approved her dismissal.
Most of us who work in large organizations are well aware of the persistent ways human resources justify their very existence by stating that they are the only institutional authorities capable of interpreting. Yet a wealth of sociological studies of law show that the procedures the field of human resources has crafted to address discrimination are fundamentally flawed.
The internal complaint procedures are not about rooting out wrongdoing. Instead, their primary function is to steer employees away from the legal system. Sociological studies of law show that complaint and investigatory procedures offer narrower interpretations of discrimination than those afforded by the law.
In egregious instances, employers use complaint procedures to normalize illegal behavior or to dissuade workers from claiming legal entitlements. This is most often accomplished by recasting legal disputes as personality conflicts or misunderstandings.
Human resource managers across industries, especially those in hulking bureaucracies like the CSU, work to comply with equal opportunity law in ways that cause the least amount of disruption to the organization’s operations. This is why we so often find human resources managers obsessed with procedural compliance without a parallel effort to reduce discrimination.
And, as most employees suspect, the elaborate complaint systems and investigatory procedures common to large organizations seem to be mostly about creating an evidentiary record that may be used to defend the organization if the complainant seeks a remedy in the courts.
The power of complaint and investigatory procedures, then, derives in part from the symbolism it wields not its ability to address discrimination. The formality of the procedures, their likeness to that of legal forums, gives an imprimatur of legitimacy.
As a shop steward for our faculty union at Fresno State, I have represented a number of faculty members who have lodged discrimination complaints. And I have studied and written about the three Fresno State lawsuits. These experiences have revealed additional problems for complainants.
Investigations drag out so long, often for a year or more, that witnesses’ memories fade, stories change, and, frankly, complainants give up hope for a resolution. When human resources managers interview involved parties, the only legitimate record that is produced is theirs, and these interviews are not recorded, making it difficult to contest their findings.
Given that discrimination complaints often hang on the credibility assessments of human resources personnel, this commonplace procedure advantages the university.
In the case of Title IX complaints, the institutional Title IX Coordinator, often a human resources manager, is the investigator of the complaint and the defender of university procedures. As Lindy Vivas memorably explained at the California Senate hearing convened after the Fresno State verdicts, “It’s like the fox guarding the hen house.”
The CSU system cannot single-handedly combat the sexism embedded in our national athletic culture, but it sure as heck can fix its personnel management system. They have a responsibility to all of us to do so.
Kathryn Forbes, Ph.D., is a professor in the Women's Studies Program at Fresno State. Connect with her at firstname.lastname@example.org.