The Rooney Rule Is Illegal (And So Is Expanding It)

by Roger Clegg

The National Football League is considering the expansion of the “Rooney Rule” to the hiring of general managers. The rule, now limited to head coaches, requires at least one minority to be interviewed by a team filling a vacancy.

But this is clearly illegal. Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private employment, and that’s what this is. The statute covers hiring, of course, and also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that denies equal treatment on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?

And there will be harm. Suppose that a team normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee. Suppose the team decides to interview a fifth candidate instead. Well, the minority coach who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.

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