COULD CAREER NETWORKING WORK AGAINST YOU?

Timothy M. Burke, Manley & Burke

Given the brotherhood/sisterhood relationship so admirably encouraged by Greek organizations, it is not surprising that many Greek groups encourage networking within their membership by those members seeking or having employment opportunities. Some groups have gone so far as to install a job networking page on their web site. As well-intentioned and helpful to members as that may be, it is a practice with the potential to create problems if the organization should ever face a challenge to its single sex status.

Congress has made it clear that fraternities and sororities do not violate federal anti-discrimination laws because of their single sex membership practices.¹ Such protections do not typically exist in local and state statutes. Should a Greek organization be challenged under a state or local regulation for its single sex membership practices, only the Freedom of Association protections of the First Amendment may be available to defend those practices.

The First Amendment Freedom of Association right is intermingled with the concept of privacy. Court decisions suggest the protection against attacks on membership policies may be found under two separate theories of Freedom of Association.

The first is the relationship discussed in Griswold v. Connecticut,²  where the right of intimate association and privacy was found to prohibit a state from criminalizing the sale of birth control devices to married couples. Courts may find the right to intimate association if the answers to the following questions are in the affirmative.

• ls the relationship one that is marked by a significant degree of intimacy such as a marriage or family?
• Is the organization relatively small?
• Are membership decisions highly selective in deciding to establish and maintain a membership relationship?
• Are non-members excluded from critical aspects of the relationship?

The second theory protects those organizations engaged in expressive speech, political advocacy, the exercise of religion and the like.

In spite of these protections, the Jaycees³ (which had admitted only men to full membership) and others with similar membership policies, were unsuccessful in defending themselves against local antidiscrimination laws. One politically powerful argument against clubs whose membership policies discriminated on the basis of sex was that such clubs excluded women from the business networking opportunities available within the club. In essence, women were deprived by such restrictions from full participation in the economic and business life of the community.

On the other hand, clubs which specifically prohibited business conduct or  contacts  have  been  able  to  escape  liability for discriminatory membership policies. The Pacific Union Club,⁴ housed in a  mansion  on  Knob  Hill  overlooking San Francisco, apparently restricted its membership of more than 700 to men only. The club’s highly restrictive  and  selective membership policies apparently kept women out while those policies  were  otherwise  similar  to  the  rigorous new member selection practices of fraternities and sororities. Pacific Union did specifically prohibit business from being conducted on its premises and required members to  certify that club expenditures were  not  incurred  in  furtherance  of their trade, business or profession.

The court found it to be a purely social club and contrasted it with the Jaycees  and rotary  clubs⁵,  which  were found to have included business development in their scopes of conduct.

Similarly, a series of men’s clubs in New Orleans⁶ with highly selective membership policies, significant size limitations, and which excluded the public from critical aspects of their relationships, also prohibited the transaction or discussion of business or even the displaying of business papers or the exchanging of business cards on their premises. Like the Pacific Union Club, the New Orleans clubs received protection under the First Amendment as intimate associations.

Whether the Pacific Union  and  New  Orleans  cases would have been decided differently were it not  for  each club’s rules against conducting business on the premises is uncertain. What is clear is that  the  clubs’  arguments  would have been far less appealing.

How dangerous a practice posting job networking information on a fraternity or sorority’s web site is not certain. Clearly, however, what such a web site posting does is turn a social organization whose purposes do not include the  economic advancement of their members into, at least in part, a business promotion organization. That puts the fraternity or sorority involved in the stream of commerce and provides a significant argument for those who would undermine the single sex status of the overwhelming majority  of  fraternities and sororities. This danger should be weighed against the perceived benefits. At  the  very  least,  fraternities  and  sororities should not cavalierly push forward with  job  networking or  emphasize  business  connections  over   social   connections. A better course, if any is necessary,  might  be  a  page  on  the web site which is simply networking. It could list  social, cultural and recreational activities, not just jobs and business opportunities.  The  First  Amendment  Freedom  of  Association protections which might be available  to defend  a single sex group as described above have been found to  exist  in  intimate social contacts and in the  context  of  political  expression. Extending those protections to  business  and  commercial activities is likely to  be  much  more  difficult  to  justify. Thus there remains need for caution in the area  of  career  web sites, job postings, and job bulletin boards, on even the most well-intentioned web site.

¹ See 20 U.S.C. §1681 (Title IX of the Education Act Amend­ ments of 1972), and 42 U.S.C. 2000, et seq.

² Griswold v. Connecticut, 38l U.S. 479 (1965).

³ Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).

⁴ Pacific Union Club v. Superior Court, 232 Cal. App.3d 60 (1991).

⁵ Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987).

⁶ Louisiana Debating and Literary Society v. The City of New Orleans, 42 F.3d 1483 (1995).