Fifth Circuit Decision Flags Area of Uncertainty in Future Title IX Retaliation Cases

On Monday the Fifth Circuit Court of Appeals rejected the appeal of Anthony Minnis, the former women's tennis coach at Louisiana State, who had sued the university challenging his dismissal and other employment practices as racially discriminatory as well as retaliation for Title IX advocacy on behalf of his team.

Regarding the Title IX claim, Minnis's legal argument was that the appellate court should address his  retaliation claim in order to resolve a question of legal uncertainty regarding the application of Title VII standards to Title IX cases. Typically, when courts apply Title IX in the employment context, they are influenced by cases applying Title VII, the federal employment discrimination statute, which also prohibits discrimination on the basis of sex. Recently, in 2013, the Supreme Court ruled that Title VII retaliation plaintiffs must prove that retaliation was the "but for" cause of their termination or other adverse action.  In other words, they must show that the employer was solely motivated by retaliation, rather than by a "mixed motive" that includes retaliation among other reasons. Because employers' motives are frequently complicated and plausibly involve multiple factors, the Supreme Court's decision considerably narrowed the scope of Title VII's application to retaliation claim.

Minnis's lawsuit used Title IX, rather than Title VII, to advance his retaliation claim.  If his case had not been dismissed on summary judgment grounds, the lower court might have had to consider the question of whether Title IX continues to allow retaliation plaintiffs to prevail in mixed-motive cases, or whether the Supreme Court's rejection of mixed motive cases under Title VII extends to Title IX as well.  Minnis argued that the appellate court should have taken his appeal so that they could address that issue and provide clarity to lower court in its jurisdiction.  However, the lower court's dismissal of Minnis's retaliation claim did not turn on whether the university had a single or mixed motive.  Rather, the lower court ruled that Minnis failed to establish a prima facie case by demonstrating that he engaged in protected conduct. (Because both the men's and women's tennis coaches had advocated for an indoor facility, this could not even plausibly be a Title IX retaliation claim, according to the lower court.)  Since his case would not fall under Title IX to begin with, the court does not reach the legal question over whether mixed-motive arguments are still available to Title IX retaliation plaintiffs.

But the decision reminds us that this is an area of legal uncertainty that will eventually have to be addressed in future cases.    

Decision: Minnis v. Bd. of Supervisors of Louisiana State Univ., 2015 WL 3941846 (5th Cir. June 29, 2015).

SUNY Stony Brook Settles Sex Discrimination Case

The Chronicle of Higher Education reports that SUNY Stony Brook has settled, for undisclosed terms, a Title VII lawsuit filed by a female former physics post-doc. The plaintiff, Sherry Towers, had alleged that the university decided not to extend her fellowship contract after and in retaliation for her complaints about sex discrimination by her supervisor, John Hobbs. According to the AAUW Legal Advocacy Fund (which supported Towers's case), Hobbs told Towers she was not allowed to take maternity leave if she wanted to receive future recommendations from him. He then insisted that she return to work within days of giving birth. And while Towers' workload was reduced to 30-35 hours a week, she received a 40% pay reduction, even though other post docs who worked similar hours received full salary.

As Towers herself suggested to the Chronicle, her case supports the argument that women aren't underrepresented in science fields like physics because of lack of interest and ability. The gender gap derives not only from workplace norms, like nonaccommodation of pregnancy, that systematically advantage men, but also hostility to women who seek to challenge those norms with more inclusive policies. Apparently, Towers was a talented and accomplished physicist who discovered evidence of a new particle (OK, I admit I have no idea what that means, but it sounds impressive to me!). Now she is getting her license to teach high school physics. If she had had the support of her institution, what else would she have been able to accomplish?

Implications for Title IX In Transgender Plaintiff's Victory in Landmark Title VII Case?

Last week a federal district judge in D.C. held that the Library of Congress unlawfully discriminated against Diane Schroer when it rescinded the job offer made to her prior to learning of her plans to transition from male to female. The ACLU attorneys who represented Schroer advanced and prevailed on two theories to explain why she should win under Title VII, the federal statute that prohibits employment discrimination on the basis of sex (among other categories, but not gender or gender identity). First, invoking Price Waterhouse v. Hopkins, in which the Supreme Court held that discrimination on the basis of gender nonconformity constitutes sex discrimination (at least in some cases), they argued that the Library's decision was unlawfully motivated by Schroer's failure to conform with stereotypical male appearance and behavior. Second, they argued that discrimination against Schroer because of her (trans)gender identity directly constitutes discrimination on the basis of sex.

The judge's decision to agree with the ACLU's first argument is good news because it joins and many courts that have read Price Waterhouse broadly to prohibit employers from requiring employees to conform with sex stereotypes, in contrast to some courts that have read it narrowly to prohibit employers from doing so only when the employee's compliance would also result in a negative consequence on the employee. (Adopting this reasoning, a court could hold that Schroer could not recover on a sex stereotyping theory because no negative employment consequence would have befallen her if she had decided to continue to present as David). The more decisions that adopt a broad view of Price Waterhouse, the easier it will be for plaintiffs to argue that those who invoke the narrow reading are outliers.

The court's decision to agree with the ACLU's sex theory is great news because it is the first time a court has held that discrimination against transgender employees is sex discrimination per se. The court used a helpful analogy to explain why this is so. Take an employer who doesn't discriminate against either Christians or Jews, but is biased against religious converts and fires an employee from converting from one to the other. Surely this is discrimination "on the basis of religion." Similarly, the court reasoned, an employer who hires men and women on equal terms, but won't hire a person who is or has transitioned from one sex to the other is discrimination on the basis of sex.

What implications might this decision have for Title IX plaintiffs? Title VII cases are often invoked by courts deciding Title IX issues, so Title IX plaintiffs might invoke the Schroer case to support arguments in support of gender nonconforming and transgender students and student-athletes (especially if Schroer is upheld on appeal, if there is one, or if it is cited favorably by other courts). For example, a plaintiff like Jennifer Harris, who had alleged that she was kicked off the Penn State basketball team for essentially being too butch, could have included this case among others to support her argument that she was penalized for failing to conform to her coach's stereotypes about appropriate dress and behavior for women. Even more significantly, the novel second part of the decision could provide support to transgender students who might want to use Title IX to challenging discrimination in the designation of dorms, facilities (see, e.g.), sports teams, etc., that fail to accommodate them.

Student Argues Against Title VII's Application in Title IX Sexual Harassment Cases

In an interesting Comment in the Maryland Law Review, student Michael Buchwald argues that, owing to statutory differences and contextual differences between education and employment, it is inappropriate to import Title VII's "severe and pervasive" standard for employer liability to harassment cases in the education setting. Buchwald makes the case that Title IX requires educational institutions to "take a more proactive approach in identifying and prohibiting sexually harassing conduct" than Title VII requires of employers. Moreover, such proactivity is warranted "because of the trust and natural imbalance of power that exists in the teacher-student [and coach-athlete] relationship." He points out that relaxing the burden in this way "will not overly expose educational institutions to liability" because educational institutions would still only be liable for their own failure to act appropriately in response to notice of ongoing harassment.

Citation: Michael Buchwald, Sexual Harassment in Education and College Athletics: A Case for Why Title IX Sexual Harassment Jurisprudence Should Develop Independently of Title VII, 67 Maryland Law Review 627 (2008).

Pittsburgh Teachers Win $1.2 Million in Pay Discrimination Case

Last week a federal jury awarded $1.2 million to 12 female teachers who had sued their employer, the Elizabeth Forward School District, for discriminating against them on the basis of sex and age. The jury agreed that the plaintiffs were hired at the lowest pay grade even though they had experience from other school districts, resulting in a salary discrepancy between the plaintiffs and other comparably experienced teachers who were younger and/or male.

This was not a Title IX case; instead they chose to pursuing relief under the other federal statutes that address discrimination in the particular context of employment, including the Equal Pay Act, Title VII, and the Age Discrimination in Employment Act. They also sued under Pennsylvania's general antidiscrimination law. Last year, the District lost its effort to dismiss plaintiffs' case on summary judgment. It had argued that younger and/or male teachers were offered hiring starting salaries because they "filled a particular need," but the court noted that the District couldn't back up this generalized explanation with any specific examples of hiring decisions in which "need" was used to justify a higher salary. That district court decision paved the way for jury trial, which resulted in the $1.2 million verdict.

There's no word yet on whether the district will appeal. But it has not had much success doing so in the past. A jury awarded a $204,000 verdict in a similar case in 2005, and the district's appeal was unsuccessful. The district ended up paying about $666,000 to the plaintiffs once attorneys fees and costs were added in.

Case is: Defurio v. Elizabeth Forward School Dist., No. 05-1227 (W.D. Pa.).
Summary judgment decision is at 2007 WL 2752176 (Sept. 19, 2007).

Court Won't Dismiss Pay Discrimination Case Against Youngstown State

The federal district court for the Northern District of Ohio held last week that Sandra Denman, formerly the general counsel for Youngstown State, could proceed with her claims of wage discrimination and retaliation against her former employer.

In September 2003, Denman analyzed the salaries of executive positions in the university and concluded that they revealed a pattern of discrimination against women. (Youngstown State had recently been advised by an outside consultant to raise the salaries in certain, higher-level pay grades to correct disparities between the salaries of long-serving employees and those of newer hires. However, it apparently incorporated this advice selectively and only to the advantage of male executives.) So Denman sent two memoranda to the university president regarding her conclusions. One warned that YSU might be exposed to liability based on its discriminatory compensation practices. In the other, Denman claimed in her individual capacity that she was being discriminated against because of her gender. Later that month, the President decided that Denman's contract would not be renewed.

Denman filed suit under the Equal Pay Act, Title VII, and Title IX, claiming that she was underpaid on account of her sex and that she was terminated in retaliation for speaking up about it. In denying Youngstown State's motion for summary judgment, the court agreed that Denman had stated a case for pay discrimination, as her salary was lower than the men in her pay grade and the men in the President's cabinet--a discrepancy for which Youngstown State could offer no legitimate business explanation. As for the retaliation claim, the court agreed there was a triable issue of fact whether Denman's memo got her fired. The timing of the President's decision, while not conclusive of a causal relationship between the memo and Denman's termination, is certainly suggestive of that. Moreover, there was also evidence that the President only started to gather evidence of Denman's ostensibly poor performance after Denman sent her memo, which casts doubt on the legitimacy of the President's stated reasons for firing Denman. As a result, the court decided that Denman can bring her case to trial.

Citation: Denman v. Youngstown State Univ., 2008 WL 483066 (N.D. Ohio 2008).

Belmont Abbey College Faculty Challenge Exclusion of Contraception from the Health Care Policy

Update 2/25. We have heard that, contrary to the media report cited herein, the faculty and their counsel are not planning to challenge the college's contraception policy under Title IX. Rather, they have filed a complaint with the EEOC under Title VII, and they are challenging the school's policy under state law that requires insurers that offer prescription drug coverage to include coverage for contraceptives -- a law that, like Title IX, makes an exception for religious institutions.

Faculty at Belmont Abbey College, a Benedictine college in North Carolina, are considering whether to file a lawsuit to challenge the College's decision to exclude coverage for contraception from the health care plan offered to its faculty. They argue that the exclusion of contraception is sex discrimination in violation of Title IX.

Should the faculty file suit, their lawyers at the National Women's Law Center will have to contend with the religious exemption from Title IX, 20 U.S.C. § 1681(a)(3), which provides that the statute “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” Belmont Abbey College, of course, insists that contraception is inconsistent with its religious tenants. But interestingly, according to NWLC, the College's articles of incorporation do not stress an overtly religious purpose. And what's more, the College has in the past successfully litigated its eligibility for state scholarship funding reserved for secular institutions. There are no judicial decisions interpreting Title IX's religious exemption, so it's unknown how much weight a court would give to evidence that seemingly contravenes the College's stated position on its religious tenets.

The contraception question itself is also interesting. The College could defend that the health care policy withholds contraception from both male and female faculty and thus is not discriminatory. (Of course, this argument would fail if the policy covered, say, vasectomies, but not birth control pills.) The Eighth Circuit recently endorsed this position in a case construing Title VII, the statute that prohibits discrimination on the basis of sex (among other characteristics) by private employers. Union Pacific, 479 F.3d 936 (8th Cir. 2007). The faculty would have to contend that lack of access to contraception disproportionately impacts women, or argue that access to contraception is required under Title IX's express prohibition of discrimination on the basis of pregnancy, or make the case that the health care policy's exclusion of contraception results in women receiving fewer health benefits on the whole.

Former Nun Revives Discrimination Suit by Invoking Title IX

Earlier this year, Lynette Petruska lost her Title VII employment discrimination lawsuit against Gannon University, her former employer, when the Supreme Court declined to consider her appeal of a 3rd Circuit's ruling that a doctrine called the "ministerial exception" protected the University's right to make hiring decisions based on gender.

She is now trying again by raising claims under Title IX instead.

Petruska, a former nun, was demoted from her position as chaplain and forced to resign from the University "because of her gender and because she helped expose accusations of a cover-up over a priest who allegedly had an affair."

The First Amendment's Free Exercise clause protects individuals' and churches' freedom to practice religion. Courts have held that this clause protects churches in their capacity as employers. Courts will not examine a religious institution's motives when it comes to "selection of clergy–in other words, its choice as to who will perform particular spiritual function" (quoting the Third Circuit decision). Because constitutional rights trump statutory ones, this creates a "ministerial exception" to Title VII. In other words, as the Third Circuit concluded, even if Gannon University's decision to fire Petruska would have otherwise violated Title VII, because Gannon is the church and Petruska was a clergy (a chaplain), Petruska's statutory rights are not protected.

Unfortunately, I don't think that Petruska's new approach of suing Gannon under Title IX will make any difference to the outcome of her case. Courts generally construe Title IX's protection for employees as coextensive with the protection they receive under Title VII. Also, there is nothing in the Third Circuit's decision that suggests that its rationale was specific to Title VII and inapplicable to other statutory rights that might come into conflict with the Free Exercise Clause. ("The ministerial exception, as we conceive of it, operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual function." (emphasis added))

No Cross-Gender Tutoring Policy Challenged in Hawaii

In Hawaii, a male tutor survived the school board's summary judgment motion that would have ended his lawsuit challenging the school board's informal policy that prevents male tutors from working with female students. The complaint also alleged that the school board retaliated against him after he complained about the policy. In rejecting the school board's summary judgment motion, the federal district court judge determined that the facts of the case, if proven, would violate Title IX and Title VII, the statute prohibiting employers from discriminating on the basis of sex. The sta The decision is: Sherez v. Hawaii Department of Education, 2007 WL 602097 (D. Hawaii, Feb. 16, 2007).

Gender-Neutral Bathrooms and Title IX

Today I read (here) that the University of Georgia has joined the growing list of colleges and universities and other public places to designate one or more "gender-neutral" restrooms. The impetus for UGA's decision was a desire to accommodate transgender and transexual students, for whom gender-specific bathrooms can be uncomfortable, hostile spaces. Gender-specific bathrooms also present an unsatisfactory, limited set of options for those who don't identify with either label on the door.

Does Title IX have anything to do with the increasing accommodation of these students? I think the answer is yes, though not directly.

First, while Title IX has been the impetus for "potty parity" in education buildings (for example, ensuring that there are sufficient women's restrooms in college buildings) I could find no evidence that plaintiffs have argued that a lack of access to gender-neutral bathrooms in federally-funded schools violates Title IX. This is probably because the courts are unsure when and whether to treat discrimination against transgender plaintiffs as sex discriminaton under federal civil rights laws. For example, several courts have rejected transgender employees' sex discrimination claims under Title VII, with the notable exception of the 6th Circuit's decision in Smith v. City of Salem. (See generally this helpful summary published by the American Constitution Society). A transgender plaintiff seeking to challenge the lack of effective access to restrooms as a violation of antidiscrimination law would have better luck under state and local laws, which in some jurisdictions prohibit discrimination on the basis of gender identity as well as sex.

Title IX does, however, require colleges and universities to take reasonable steps to protect students from sexual harassment at the hands of teachers and peers. Administrators might reasonably anticipate that a biological female student identifying or presenting as male, or biological male student identifying or presenting as female, is at a high risk of harassment in either gender-specific bathroom, depending on the circumstances. At least one court has held that Title IX protected a transgender (MTF) plaintiff against direct sexual harassment by a professor, see Miles v. NYU, 979 F. Supp. 248 (SDNY 1997). Thus, risk averse colleges and universities might decide to designate a gender-neutral bathroom as a way to preempt or curb existing harassment in order to avoid liability. (For more on Title IX and transgender plaintiffs, see Leena D. Phadke's comment in the Kansas Law Review.)

Another possible connection between Title IX and gender-neutral bathrooms takes into acount the advantage of gender-neutral bathrooms to a different potential constituency. Parents, especially fathers, might wish to avoid gender-specific bathrooms when taking care of their opposite-sex children. Title IX and other antidiscrimination laws have helped generate awareness about the harm to women done by institutional presumptions that only women are responsible for child care.

In sum, I note that neither the state of Georgia, the city of Athens, nor the University appear to prohibit discrimination on the basis of gender identity. This seems to suggest that to the exent UGA's bathroom decision was influenced by any applicable antidiscrimination law, Title IX indirect relationship to gender-neutral bathrooms is the only possibility.