A federal district court recently threw out Title IX claims against National Geographic Society after determining that it did did not retaliate against against the plaintiff, who had been the director of the NGS-affiliated entity that operated the National Geography Bee in North Dakota. This decision caught my eye at first because of the unusual (for Title IX) defendant. Usually Title IX cases proceed against universities, school districts, and other educational entities whose connection to federal funding is obvious. Interestingly, Title IX's applicability to NGS was not in dispute or even explained in this case. It must either be the case that NGS (or the NGS Education Foundation) itself receives federal funds, or that its practice of operating the Geography Bee through an alliance with a local educational institution (in this case, Minot State University) was in the court's mind a sufficient connection to federal funds.
The court's decision itself also warrants some analysis. The plaintiff, Eric Clausen, argued that he had complained that the National Geography Bee was biased against girls in North Dakota, pointing out that boys win 90% of the time. He further alleged that he was forced to resign as a result of his complaints. Yet the court found that he did not state a claim for retaliation because Clausen's complaints about the geography bee's bias was not itself discrimination under Title IX ("The Court finds as a matter of law that an alleged failure by females to win the national geography bee as often as males neither establishes nor supports a Title IX violation. Title IX neither guarantees nor suggests that females must win as often as males."). Thus, his complaints were not "protected activity" as required to establish a retaliation claim.
The court was right that Title IX's focus is on equal opportunity, rather than equal outcomes, and that the law does not "guarantee that females must win as often as males." However, there are two reasons why I think it concluded too quickly that Clausen did not engage in protected activity. First, retaliation law only requires that the plaintiff have a reasonable belief that the conduct or practice they are challenging constitutes unlawful discrimination. Thus, even though the court may be correct that the Geography Bee did not violate Title IX, the right question is whether Clausen reasonably believed that a 80-percentage-point gender gap in Geography Bee winners might be the result of unlawful discrimination.
This brings me to my second criticism of the court's conclusion that Clausen did not engage in protected activity. I think Clausen could have reasonably believed that the Geography Bee was unlawfully biased. Title IX's prohibition is not limited to intentional discrimination; the law also forbids practices that have an unintended discriminatory effect on a particular sex. For example, New York state used to award scholarships to high school students based on their SAT scores, a practice that unintentionally awarded more scholarship dollars to male students. A federal court ruled that this was discriminatory under Title IX, because there were other criteria the state could use that would provide as good or better measure of academic merit and would have a less discriminatory impact on female students. Sharif v. N.Y. State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Viewed as a possible case of disparate impact discrimination, it seems much more likely that Clausen's complaints about the National Geography Bee's tendency to favor male students were rooted in his reasonable belief that it reflected unlawful discrimination. Sometimes test questions -- either because of their content or their format -- unintentionally favor a particular group, and an extreme disparity reflected in the test results is usually the first sign to the testing entity of a potential bias. An employee who points this out and asks the testing entity to correct or at least examine the test for potential bias ought to be protected from reprisal.
Unfortunately for Clausen, even if he successfully appealed the court's conclusion that he engaged in protected activity, he would also have to surmount the court's conclusion that he did not sufficiently allege that he was forced to resign because of his advocacy for gender equity. Apparently there was evidence that he resigned for other reasons relating to business decisions made by the entity that he directed. I leave it to Clausen's lawyer to figure that one out.
Decision: Clausen v. National Geographic Society, Inc., 2009 WL 3271355 (D.N.D. Oct. 10, 2009).