Perspectives: Ex-U of M coach won on court and in the law

Volleyball: “invented by men; perfected by women.”

— Anonymous

The University of Minnesota women’s volleyball team (there is no intercollegiate men’s team at the U) has made news on the eve of the start of its season at the end of this month under first-year Coach Keegan Cook. The team announced that it will make its first appearance on national television Sunday, Oct. 29, on Fox TV when it plays at perennial powerhouse Wisconsin — a game likely to attract a lot of viewers because it will immediately follow the Minnesota Vikings-Green Bay Packers game from Lambeau Field in Green Bay.

But as the squad gets prepared for a new season, a new coach, and newfound attention, it will be mourning the death in June of one of the architects of its program, Stephanie Schleuder. The passing of the highly decorated Minnesota athlete and acclaimed women’s volleyball coach rightfully attracted a fair amount of attention in the women’s sports community.

But the accounts of her death at age 73 overlooked one of her most significant achievements: her advocacy on behalf of women.

Schleuder’s death on June 26 provides an opportune occasion to recall what she did, why she did it, and how it expanded the rights of employees, especially women, to speak out about workplace discrimination and other inequities.

Steph’s saga

Known as Steph, Schleuder’s was born in Minneapolis and was a multiple sports athlete at Richfield High School in the pre-Title IX days before girls’ athletics were played in an organized format at a high school level or given much attention anywhere else.

She attended University of Minnesota Duluth (UMD), where her excellence in volleyball led her to be named the outstanding woman in the school’s physical education program. Following her graduation, she started her long and successful path of coaching the sport at Bemidji State, then a three-year stint at UMD as head basketball coach and assistant volleyball coach before leaving for the University of Alabama.  She put in double-duty as volleyball and basketball coach for eight years at the Crimson Tide.

The tide brought her back to Minnesota, where she spent 13 years at the University of Minnesota, coaching volleyball at the main campus in the Twin Cities, followed by a stint at Macalester in St. Paul before her retirement.

Her 34-year coaching career at those five institutions of higher learning yielded 702 victories and numerous accolades, including induction into the inaugural UMD Hall of Fame in 1991, selection to the Minnesota Volleyball Hall of Fame, inclusion in the American Hall of Fame of the American Volleyball Coaches Association, an organization she headed from 2002 to 2004, and many other awards, citations and honors. She also laid the foundation for what evolved into a national elite college program at the U.

Legal landmark

Her 13th – and final – year as the coach at the U proved to be unlucky for her, after she compiled a 263-173 win-loss record for the Gophers, highlighted by a pair of not-seen appearances along with a series of mid-conference finishes in the Big Ten.

Her discharge at the end of the 1994 season led to her achieving a legal landmark at the state level that later reverberated on the national scale.

It began with a pay equity dispute with then-women’s athletic director Chris Voelz, concerning her $50,000 salary, which the coach felt was well below that paid to coaches of non-revenue-raising men’s teams. That claim of discrimination, coupled with some unspecified personal antagonism between the coach and Voelz, yielded what amounted to a power struggle within the women’s program, which at that time was separate from the men’s unit. They were merged some years later into a single entity under men’s leadership.

Voelz fired Schleuder. Technically a nonrenewal of her contract, her dismissal prompted Schleuder to bring a claim of sex discrimination against Voelz and the university, which ultimately led to a sizable monetary settlement for her.

As part of a settlement agreement, the university and Voelz insisted that Schleuder promise refrain from making any negative comments about the university athletic program, accusations of discrimination or other deprecatory remarks, capsulized into what is known as a nondisparagement agreement or “NDA.”

Although reluctant, Schleuder accepted that arrangement in order to obtain a large cash settlement, a “show me the money” type of temptation that many claimants find difficult to resist.

But her termination, in the face of her charge of gender bias, led to a firestorm that reached the state Legislature, which enacted an amendment to the Minnesota government Data Practices Act, Minn. Stat. §13.01, et. seq., one of Minnesota’s two premier “Sunshine” laws, along with the Open Meeting Act.  The Data Practices measure, governing access to and privacy of government information to the public sector was amended with a provision barring any settlement agreements with public employees to include clauses with a “purpose or effect of limiting access to or disclosure of information or opinions” about employers, and further deeming any such NDA, to be “void and unenforceable” in the courts of law, which are proscribed from enforcing them.  Minn. Stat. § 13.43, subd. 10(3).

The result was to eliminate most of the “gag” provisions on court rulings enforcing them for public sector employees in Minnesota.

Expanded effect

While the statutory amendment essentially eliminated NDAs for public sector employees, private employers were not affected because they are not subject to the Data Privacy Act.

But that was not the end of Schleuder’s effort, which expanded, albeit decades later, to all employees, public and private sectors alike.

The “Schleuder provision” became the forerunner for the measure passed by Congress and signed by President Joe Biden late last year — the “Speak Out Act,” a federal law that precludes “gag” provisions in settlement agreements, but only for sexual assault and harassment claims.

The federal “Speak Out”  law was followed about two months later by a decision of the National Labor Relations Board prohibiting nondisparagement clauses barring private-sector employees from discussing the terms of their settlements or any conditions in the workplace that led to it, essentially wiping out NDAs and the restraints accompanying them in McLaren  Macomb, 372 NLRB No. 58 (Feb. 21, 2023), which was elaborated upon by the General Counsel, in Memorandum 23-05 (March 22, 2023).

The pair of federal measures are broader in some respects and more narrow in others than the limited state “Schleuder provision.” The federal ones apply to all employees, both public and private.  But the “Speak Out” law only covers settlements of sexual assault or harassment claims, and not the vast number of other workplace matters.  While that measure has been attributed by many observers to the #metoo movement in 2017, it was Schleuder who got the ball rolling.

Her efforts that effectively eliminated “gag” provisions in workplace settlements in Minnesota, as well as later across the country, was a major stride forward because those provisions are considered unequitable and unfair, especially to women, by allowing employers to conceal and cover up workplace wrongdoing.

Schleuder had no immediate family survivors, her parents and sister having predeceased her. But she left a last legacy not only on the court, but in the law, too.

PERSPECTIVES POINTERS

Some “U” Volleyball Figures

• Minnesota natives on 2023 team:  4
• Big Ten titles:3
• Final Four appearances:6
• First team All American: 17

Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.

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