Camille Bryant of McGlinchey Stafford. Courtesy photo

The Rooney Rule and the Flores Allegations

In 2002, the National Football League designed the Rooney Rule to increase the recruitment of ethnic minorities in head coaching positions, and in 2018, the rule expanded to create additional opportunities for diverse candidates. The rule is an example of affirmative action, even though there is no hiring quota or hiring preference given to minorities, only an interviewing quota. From the beginning, the rule received stark criticism. Many opponents claimed that the rule is a form of reverse race discrimination in violation of Title VII of the Civil Rights Act of 1964. Despite the initial criticism, the rule's impact has extended beyond the football field as numerous industries have since adopted their own version of the Rooney Rule in hopes of creating more equitable and diverse professions. In fact, variations of the rule are now in place in some of the best-known companies including Amazon, Facebook and Xerox.

Now, roughly 20 years later, a renewed challenge to the Rooney Rule has risen in the form of a class action lawsuit brought by former Miami Dolphins head coach Brian Flores against the NFL and all 32 of its teams. In the lawsuit, Flores alleges racial discrimination in hiring. Specifically, he claims that the New York Giants and the Denver Broncos conducted "sham interviews" as an act of diversity window dressing. Flores also alleges that "while racial barriers have been eroded in many areas," the NFL "lives in a time of the past" and "remains rife with racism, particularly when it comes to the hiring and retention of Black head coaches, coordinators and general managers. … In fact, the racial discrimination has only been made worse by the NFL's disingenuous commitment to social equity." Flores' lawsuit has since drawn the attention of both employees and employers outside of the professional sporting context, as hierarchical business structures have long faced the predicament of racial imbalance in their higher ranks. While minority employees are typically represented in lower-tier or entry-level jobs, they are often absent in upper-tier or management positions.

Voluntary Affirmative Action Plans and Potential for Blowback

While the NFL teams have denied the allegations, the lawsuit raises important questions about how employers will manage diversity initiatives and hiring practices moving forward. These are particularly sensitive issues in a time when organizations are struggling with a dichotomy. On the one hand, organizations are striving to promote diversity and equity in the workplace. At the same time, companies must manage the risk of reverse race discrimination claims. Recently, there has been a string of high-profile cases against YouTube, Google and Starbucks, where white employees claimed unfavorable treatment. In 2021, a jury issued a $10 million verdict in Duvall v. Novant Health, Civil Action No. 3:19-cv-00624 (W.D.N.C. Oct. 26, 2021), when they found the plaintiff's race (white) and sex (male) were motivating factors when the employer terminated his employment.