Two-thirds of players in the National Football League are Black, a number that has not materially changed for decades. However, the coaching ranks have never reflected the demographics of the player population. In an effort to address this disparity, in 2003, the NFL instituted what is known as the Rooney Rule, so named for its progenitor, Dan Rooney, who at the time was owner of the Pittsburgh Steelers. The Rooney Rule has evolved through the years but generally has required clubs to interview a minority candidate for head coach positions. The Rule has resulted in mixed success and has been a frequent topic of discussion and criticism from multiple sides. The most recent version of the Rule is now the subject of a complaint to the U.S. Equal Employment Opportunity Commission from America First Legal, an organization directed by former staffers from the Trump Administration.

The Rooney Rule’s evolution

In 2002, the year before the Rooney Rule came into being, the NFL had two Black head coaches. In 2006, there were a record seven Black head coaches. That season saw a Super Bowl in which both teams were led by Black coaches – Tony Dungy of the Indianapolis Colts and Lovie Smith of the Chicago Bears. And in 2009, Mike Tomlin, the first Black coach for Mr. Rooney’s Steelers, led the team to a Super Bowl victory.

The Rule was considered successful enough to be extended in 2009 to team general managers, another position which had historically lacked diversity.

Yet, criticism was never far behind. There were situations in which seemingly qualified minority coaches were passed over, or where it seemed that clubs were interviewing a minority candidate solely for the purpose of complying with the Rooney Rule. In 2003, the NFL fined the Detroit Lions $200,000 for failing to interview a minority candidate after the club made clear that it preferred a specific candidate who was white.

In 2020, the league beefed up the Rule. The changes required two external minority candidates to be interviewed for head coach vacancies, and one minority candidate to be interviewed for each of the coordinator, general manager, and club president positions. Additionally, the amended Rule provided extra draft picks for teams who developed minority coaches and general managers.  

The Flores lawsuit and further changes

In the 2022 offseason, Brian Flores, the Black head coach of the Miami Dolphins, was terminated despite a 9-8 record. He was then passed over for several head coaching vacancies. In February of that year, Mr. Flores initiated a putative class action lawsuit against the league and several clubs, alleging racially discriminatory employment practices. A federal court has since largely granted the NFL and the clubs’ efforts to have the case moved to arbitration, and Mr. Flores’ case has been a bit stymied.

Less than a month later, the NFL announced a supplement to the Rooney Rule: a requirement that all clubs employ a female, or a member of an ethnic or racial minority, as an offensive assistant coach. 

Is this legal?

The new requirement is of questionable legality. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin, or sex. (“Sex” includes sexual orientation, gender identity, and pregnancy and pregnancy-related conditions.)

All states except Alabama and many cities have passed their own legislation similarly banning such discrimination. The U.S. Supreme Court has recognized very limited exceptions to these strict prohibitions, permitting employers to adopt “affirmative action plans” where (1) preferences are intended to “eliminate manifest racial imbalance in traditionally segregated job categories”; (2) the rights of non-minority employees are “not unnecessarily trammeled”; and (3) the preferences are temporary in duration. Absent very unique circumstances, protected characteristics cannot be the basis for making employment decisions. 

Any possible permissible use of protected characteristics in hiring was dealt a further below by the Supreme Court’s 2023 decision in cases involving Harvard University and the University of North Carolina. There, the Supreme Court struck down the use of race as a factor in college admissions.

Will the Rooney Rule survive?

On its face, the recent changes to the Rooney Rule lead to the conclusion that race and sex will be factors in the selection process, and that violates Title VII. If a qualified white male were to interview and lose out on a position as an offensive assistant coach to a female or minority candidate, he could have a plausible claim under federal and state anti-discrimination laws.

For all of the above reasons, the AFL recently requested the EEOC to investigate the Rooney Rule.  The AFL’s stance is similar to other challenges it has made to diversity initiatives by American employers – including Major League Baseball. The NFL has publicly responded by defending the Rule and its results.  It may have to do so to the EEOC and perhaps, eventually, a court.