Legendary coach Shannon Miller picks up major court victory, but more history can be made
Shannon Miller was the head coach at the University of Minnesota- Duluth for 16 seasons (via Curve Magazine)
Shannon Miller has been a trailblazer in women’s ice hockey for decades. Not only is Miller one of the most successful women’s college hockey coaches of all-time, she also coached Team Canada to a silver medal at the 1998 Winter Olympics in Nagano, Japan. But recently, Miller has been a noticeable advocate for women’s equality and gay rights in the world of college athletics.
In December 2014, approximately halfway through Miller’s 16th season as head coach of the University of Minnesota-Duluth (hereinafter “UMD”) women’s hockey team, UMD athletic director Josh Berlo made the shocking announcement that Coach Miller’s contract would not be renewed after the 2014-15 season. The decision to abruptly let go a coach of Miller's reputation and stature instantly made waves through the women’s athletics and college hockey communities. Berlo, who began his tenure at UMD in 2013, rationalized Miller’s firing as a combination of financial hardship, stating that UMD could no longer afford the highest paid coach in women’s college hockey, as well as Miller's declining performance during her final few seasons in Duluth.
But Miller did not buy Berlo’s excuse. She believed there were other reasons for her contract not being renewed besides money and job performance. Specifically, Miller felt that her gender and sexual orientation were the motivating factors for this decision.
This led to Miller’s highly publicized lawsuit filed in United States District Court against the UMD Board of Regents. In her complaint she alleged the University, mainly through Berlo, discriminated against her based on her gender, sexual orientation, age and national origin, and created a hostile work environment, violated equal pay laws and Title IX.
There was a slight bump in the road for Miller and her legal team in February 2018 when U.S. District Judge Patrick Schlitz granted UMD’s motion for summary judgment on all of her claims, except for the gender discrimination and Title IX retaliation causes of action. However, Schlitz noted in his decision that the dismissal of those claims were due to a lack of jurisdiction—not merit—and that Miller could pursue her other claims in state court, including the sexual orientation claim, which Schlitz noted as being her “strongest” claim.
So, Miller forged ahead on her two claims and went to trial in March 2018. After an eight day trial, Miller emerged victorious and was awarded $3.74 million by the jury. The victory, noted by Miller, was a big day for women in college athletics, and marked the end of a tumultuous three-year legal battle.
But, Miller’s time in court may not be finished. Not only does Miller plan on pursuing her other previously dismissed claims in state court, but she also has the opportunity to make a major and lasting impact on how federal courts view sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964. While this federal law prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion, it does not explicitly mention "sexual orientation." There have been a number of recent cases asking courts to decide whether “sexual orientation” is a “protected class” or a subset of the “sex” protected class under this law. Unfortunately, the answer to that question is a bit unclear, and mainly depends on where the case is filed.
As noted earlier, Judge Schlitz dismissed Miller's sexual orientation claim based on the federal court’s lack of jurisdiction. This was due to a 1989 decision by the Eighth Circuit Court of Appeals—whose jurisdiction includes the state of Minnesota—in the case of Williamson v. A.G. Edwards & Sons, Inc., which held that Title VII did not encompass discrimination on the basis of sexual orientation.
Each of the other United States Circuit Courts that had addressed this issue held the same for almost 40 years until April 2017 when the Seventh Circuit Court of Appeals, by an 8-3 decision, became the first federal court to recognize such a claim under Title VII in Hively v. Ivy Tech Community College. Then just weeks before Miller's victory, the Second Circuit agreed with the Seventh Circuit in Zarda v. Altitude Express holding that Title VII prohibits employers from discriminating against employees for their sexual orientation. However, not only is the Eighth Circuit in conflict with the recent Seventh and Second Circuit decisions, but the Eleventh Circuit has also ruled that Title VII does not cover sexual orientation discrimination in their March 2017 decision in Evans v. Georgia Reg’l Hosp. Thus, there is officially a circuit split on this issue.
Due to this building tension and conflict, it is only a matter of time before the Supreme Court of the United States (hereinafter "Supreme Court") is forced to review this growing legal issue—and perhaps it will be Miller’s case that finally pushes the issue onto the Eighth Circuit and eventually the Supreme Court.
At this time it is unclear whether Miller will appeal Judge Schlitz’s ruling to the Eighth Circuit, but the climate seems ideal to further pursue this claim. And if Miller's case is not the one the Supreme Court hears to finally resolve this circuit split, it is only a matter of time before the Supreme Court resolves this issue once and for all.
In the meantime, Miller and her co-plaintiffs will pursue their sexual orientation claims via the Minnesota Human Rights Act (“MHRA”) in Minnesota District Court (state trial court). It is likely that their MHRA claim will be successful since that law explicitly prohibits discrimination based on sexual orientation. Also, not only did Judge Schlitz note this was their strongest claim, but a Minnesota District Court ruled in favor of plaintiff asserting a similar violation of the MHRA in July 2016.
As noted in that decision, Habberstad v. Country Bankers, once the plaintiff submits sufficient evidence (direct or indirect) demonstrating discrimination, the defendant must “articulate a legitimate and nondiscriminatory reason for the adverse employment action.” The defendants in this case claimed that they fired Mr. Habberstad for “not doing sufficient work to justify his compensation,” which is exactly what UMD proffered as their legitimate and nondiscriminatory reason for firing Coach Miller. However, the court did not buy this “legitimate business reason” as nondiscriminatory and valid. Thus, it is probable—assuming Miller asserts ample evidence of discrimination—that the fact finder in Coach Miller’s case will find UMD’s excuse of “too much pay for too little results” to be insufficient and merely pretext for illegal discrimination.
While Coach Miller has won hundreds of hockey games in her career, her next victory (or victories), while off the ice, could be the biggest of her career. Stay tuned.
 Coach Miller was the first women’s hockey coach at the University of Minnesota-Duluth, where in 16 seasons she led the Bulldogs to five national championships and won 300 games quicker than any other Division I women’s hockey coach. MPR News
 This was the first Olympics where women’s ice hockey was offered. Also, Coach Miller became a United States citizen in 2012 and holds dual Canadian/American citizenship.
 Miller was reportedly paid $207,000.00 in her final season, which was approximately $28,000.00 less than UMD men’s ice hockey coach Scott Sandelin. MPR News The Bulldogs failed to reach the NCAA Tournament in Miller's final four seasons, and went went 3-26-7 against rivals Minnesota, Wisconsin and North Dakota over her final three seasons. Star Tribune
 Miller filed suit against UMD with two other plaintiffs: former Softball coach Jen Banford, who also worked as Director of Hockey Operations for the women’s hockey program and is Miller’s girlfriend, and former women’s basketball coach Annette Wiles.
 Star Tribune
 Banford and Wiles’ causes of action were all dismissed, leaving only Miller’s claims. Twin Cities
 Click here for Judge Schlitz's Order.
 The jury awarded Miller $744,832.00 in past lost wages and $3 million for past emotional distress. Inforum; Global News
 Under Title VII, Section 702(k), the terms “sex” or “on the basis of sex” include, “but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” Click here for full statute.
 876 F.3d 69,70 (8th Cir. 1989) (holding that “Title VII does not prohibit discrimination against homosexuals.”). Click here for full decision.
 See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997). Buchanan Ingersoll & Rooney, PC
 The United States Equal Employment Opportunity Commission previously recognized this claim in its July 2015 decision in Baldwin v. Foxx, No. 01220133080 (July 15, 2015) (holding “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”). Click here for full decision.
 853 F.3d 339, 351 (7th Cir. 2017) (en banc) (holding that it is “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”). Click here for full decision.
 883 F.3d 100 (2nd Cir. 2018) (en banc). Click here for full decision.
 850 F.3d 1248 (11th Cir. 2017). Click here for full decision.
 The Supreme Court previously turned down hearing an appeal of this issue in the Evans case.
 It should be noted that a similar case—Horton v. Midwest Geriatric Management, LLC—is currently being pursued in the Eighth Circuit by the lawyers that secured the landmark decisions in Hivley and Zarda (Lambda Legal). In Horton, the plaintiff had his job offer withdrawn when the employer learned that he was gay. He then filed suit in August 2017 in the U.S. District Court for the Eastern District of Missouri for sexual orientation discrimination under Title VII, but the case was dismissed in December 2017, prompting the appeal filed this past January. St. Louis Post-Dispatch As of this moment, U.S. District Judge Jean C. Hamilton is accepting amicus briefs, and there is a settlement conference scheduled with Magistrate Judge Kate Menendez for May 29, 2018. HR Drive
 This past Tuesday, Altitude Express filed a petition for a writ of certiorari to the Supreme Court . Click here to read the petition. If four of the justices vote to hear the case, it would likely be put on the calendar for sometime this fall.
 The state action was filed the same afternoon as Miller’s victory in federal court. The case has been assigned to Judge Joseph Klein of Minneapolis. Bemidji Pioneer
 Section 363A.02(1)(a)(1) states: “It is public policy of this state to secure for persons in this state, freedom from discrimination . . . in employment because of . . . sexual orientation . . .” Section 363A.08, subd. 2 (1-3) further states: “it is an unfair employment practice for an employer, because of . . . sexual orientation . . . to: (1) refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or (2) discharge an employee; or (3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” Click here for full statute.
 In Habberstad vs. Country Bankers, the family-owned bank and its directors were ordered to pay over $3 million to Stephen Habberstad, who was the former director and president of the bank, for unlawfully terminating his position with the bank due to his sexual orientation. Society for Human Resource Management
 Click here for full decision in Habberstad.
 Page 72 of decision citing Hansen v. Robert Half Int’l, Inc., 813 N.W.2d 906, 918 (Minn. 2012).
 Page 74 of Habberstad decision.
 Page 75 of Habberstad decision.