Boston Lawyer BlogBeyond Sports and Sex Part 1: Employment Discrimination Claims Under Title IX
In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.
The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq.
In North Haven Board of Education v. Bell (1982), the Supreme Court noted that under the plain language of the statute “a female employee who works in a federally funded education program is ‘subjected to discrimination under’ that program if she is paid a lower salary for like work, given less opportunity for promotion, or forced to work under more adverse conditions than are her male colleagues.” The Court went on to note that the legislative history of Title IX indicated it was meant to address discrimination in employment as well as discrimination in the receipt of educational benefits. In North Haven, two public school boards challenged federal regulations issued by the then-Department of Health, Education, and Welfare related to employment discrimination under Title IX; the Court upheld the regulations. The case did not involve a claim by an actual employee alleging she had been subjected to prohibited discrimination.
While not disputing that Title IX prohibits employment discrimination on the basis of sex in education programs, federal appeals courts have split over how Title IX and Title VII—the federal law prohibiting discrimination in employment—interact when it comes to employment in educational programs. The question courts have been called on to address is: Does Title VII, which has a detailed remedial scheme, displace Title IX claims if a particular employee is covered by both laws?
On one side of the split sit the First, Third, Fourth, Sixth, and Tenth Circuits, holding that Title VII does not displace Title IX, and an employee of an educational program can bring discrimination claims under both laws The Department of Justice, in its 2015 Title IX Legal Manual agrees with these circuits: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.”
In Doe v. Mercy Catholic Medical Center, the Third Circuit set out four factors that lead it to conclude that employees can bring Title IX claims based on employment discrimination. First, the Court noted that Supreme Court precedent indicates that private sector employees “are not limited” to Title VII to address discrimination claims. Second, it was a policy decision committed to Congress’ discretion whether allowing a remedy that could circumvent Title VII was desirable, and its use of the broad word “person” to describe to whom Title IX applies indicates Congress rejected that policy concern in drafting Title IX. Third, the provision of Title IX wherein the Supreme Court found an implied private right of action is not limited to “students” or “beneficiaries.” Finally, and perhaps most persuasively in my view, the Supreme Court has already held that employees of federally-funded education programs have a private right of action to bring retaliation claims under Title IX.
In that Supreme Court case, Jackson v. Birmingham Bd. of Education (2005), a high school basketball coach complained that his girls’ team was not receiving equal funding and access to facilities as the boys’ teams at the school. He was then removed as the coach. The question presented to the court was whether Title IX provides a right of action for retaliation at all. The Court held that it does: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” The Court made clear that retaliation is a form of discrimination, and found that the coach could bring his retaliation claim under Title IX. The Court did not specifically address the issue of whether employees and students have different rights with respect to bringing claims under Title IX, but in subsequent decisions reiterated its broad reading of the applicability of Title IX. See Gomez-Perez v. Potter, 553 U.S. 474, 483 (2008) (“[A] private party may assert a retaliation claim under Title IX . . . .”).
On the other side of the split are the Fifth and Seventh Circuits, holding that Title VII does displace Title IX. As a district court in Florida recently explained, under this view of the statutes Title VII and Title IX provide two different remedies for the same right to be free from sex-based discrimination in the workplace. Under Title VII individuals can sue to enforce their rights, while Title IX provides federal agencies with the authority to intervene to address sex-based employment discrimination in educational programs. See Drisin v. Florida International University Board of Trustees, No. 1:16-cv-24939, 2017 WL 3505299 (S.D. Fla. June 27, 2017). Courts adhering to this view argue that by setting up detailed administrative procedures under Title VII (where employees must first file their complaints with the EEOC before being allowed to take them to court), Congress intended Title VII to be the exclusive remedy for employment discrimination.
Although most circuits to have addressed the issue have held that Title VII does not displace Title IX for employment discrimination claims, district courts remain widely split on this issue. Even though, as the court in Doe v. Mercy Catholic Medical Center noted, both the leading Fifth and Seventh Circuit cases were decided a decade before the Supreme Court’s Jackson decision, district courts have continued to rely on them, both within and outside their circuits, to support determinations that Title VII displaces Title IX in the employment context. See, e.g., Drisin v. Florida International University Board of Trustees, supra; Towers v. State Univ. of New York at Stony Brook, No. CV-04-5243 GB TML, 2007 WL 1470152, at *4 (E.D.N.Y. May 21, 2007).
Although Title IX and Title VII are often subjected to the same legal interpretations, being able to bring claims under Title IX may have important benefits for employees. For example, under Title VII there is an administrative exhaustion requirement, whereby claims must first be brought to the EEOC within 180 days from the alleged discrimination. There is no administrative requirement under Title IX; plaintiffs can bring their claims directly to court, and are provided a much longer statute of limitations (in many states along the lines of three years) to make those claims.
It appears to remain an open question as to how individual district courts, the circuit courts that have not yet weighed in on this legal issue, and most importantly the Supreme Court will countenance employment discrimination claims brought under Title IX. The decisions of these courts could have a significant impact on the available remedies for employees of educational institutions who experience sex-based discrimination.
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