By Karina Jolly, MS & Michael S. Carroll, PhD
David Nakhid, a professional soccer player and professional coach, sued his former school, American University (AU), for racial discrimination after he was not hired for the head coach position at his alma mater.
The suit was brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.S. § 1981, which covers discrimination based on race, ethnicity, and national origin. AU denied any wrongdoing and stated that it declined to hire or even interview Nakhid based on the fact that he had no collegiate coaching experience, which was considered one of the essential qualifications for this particular position. AU ended up hiring Zach Samol, who had 18 years of collegiate coaching experience at the time.
In 2020, the United States District Court for the District of Columbia granted summary judgment for AU, ruling that federal law did not grant protection to a non-citizen who was not living in the US. At the time Nakhid applied for the position, he was a citizen of Trinidad and Tobago and residing in Lebanon. Additionally, the court ruled that Nakhid had not proffered sufficient evidence to support his claims regarding discrimination. He subsequently appealed, and the Unites States Court of Appeals for the District of Columbia reviewed the case in September of 2021.
Hiring Process
In 2018, American University opened a national job search for the new head coach for the men’s soccer team. More than 100 applicants applied for the position. The job description included the importance of collegiate coaching experience (at least 5-8 years’ worth), experience working with male college athletes, and knowledge and ability to work within Patriot League regulations as well as NCAA guidelines. During the hiring process, the committee interviewed eight candidates, conducted follow-up interviews with five people, and had two in-person on-campus interviews. David Nakhid was one of the applicants in this over 100 person pool, but he was not selected for an initial screening interview due to his lack of coaching experience at the college level.
Title VII
Under Title VII and § 1981, courts examine discrimination claims under a burden-shifting framework that begins with the defendant (AU) and shifts to the plaintiff (Nakhid). The plaintiff first files the discrimination claim, and the defendant-employer has a chance to respond and offer a defense for their actions and why they are not discriminatory in nature. Once an employer asserts a “legitimate, non-discriminatory reason” for its decision, the plaintiff then bears the burden to show that the employer’s reason was a mere “pretext” and not factual in basis. Thus, the employee/plaintiff would need to produce evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the real reason for the adverse action taken by the employer.
Nakhid, who is Black, claimed that American University discriminated against him during the hiring process based on race and argued that the University’s reasons for not hiring him were pretextual in nature and thus discriminatory. At the time of the hiring process, the University’s athletic department employed an all-white staff, which for Nakhid, seemed like a valid reason for the pretext of discrimination. Nakhid offered three reasons the University’s explanation of why he was not hired was pretextual:
- Nakhid claims that the job posting included language indicating that “collegiate or professional” coaching experience would suffice for the position, and he had the latter. However, the court noted that the position also emphasized collegiate-specific experience, such as the ability to work with male student-athletes and the ability to successfully navigate Patriot League and NCAA guidelines/regulations. Additionally, all personnel on the hiring committee testified to the central importance of collegiate coaching experience with the position, and the resumes of all interviewed applicants bore this out. As such, the court found this argument non-persuasive.
- Nakhid suggested that the University’s failure to follow its own affirmative action policies indicated a pretext. However, Nakhid was unable to point to any specific violation of the University’s policies on affirmative action. Without specification, Nakhid stated that the University did not file the “search closure form” that would classify the search as having been done so in compliance with applicable affirmative action policies. This might seem like an affirmative policy failure, but due to the way the application process was conducted, the applications were received via both the application portal and email. The Court did not find this to be a valid issue or constitute a violation of any AU affirmative action policy.
- Finally, Nakhid argued that AU’s treatment of another Black applicant for the position, Clint Peay, supports an inference that the hiring process was discriminatory in nature. Unlike Nakhid, however, this applicant had both collegiate and professional experience. Peay’s application, along with the application of another Black applicant, both of which were granted interviews, actually supports the applicant pool’s diversity and the importance of collegiate coaching experience as a significant factor in the hiring. The court found this final reason also unpersuasive.
Finding all three of Nakhid’s arguments regarding AU’s reasoning for his non-hire pretextual in nature unpersuasive, the Appellate Court affirmed the District Court’s finding of summary judgement in favor of American University. This case demonstrates the importance of a University Search Committee to follow its own policies and guidelines when conducting a search and to be able to point to clear, neutral qualifications as reasoning for a person’s hire or non-hire.
References
Nakhid v. American University, 21-7107 (D.C. Cir. 2022). Retrieved from: https://casetext.com/case/nakhid-v-am-univ-2
Karina G. Jolly, MS, is a PhD student in the School of Hospitality, Sport, and Tourism Management at Troy University. As a former NCAA athlete, her research interests center around intercollegiate athletics, athlete development, and international student-athletes.
Michael S. Carroll is a Full Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He also serves as Online Program Coordinator for Troy University and works closely with students in the TROY doctoral program.
