title4 Article posted on October 29, 2012
By: Jennifer A. Harper, Esq.
Bean, Kinney & Korman, P.C.

Win AD recently participated in a panel, in conjunction with Title IX and Title VII expert Jennifer Harper of Jackson Lewis LLP, at the second annual Collegiate Athletic Leadership Symposium in Chapel Hill. That panel offered practical advice for the athletic directors and senior athletic administrators in attendance regarding Title IX and Tile VII. This article will examine those areas of equal opportunity law in greater detail and offer a list of best practices to prevent discrimination from occurring through effective training and education.

The overwhelming majority of Title IX lawsuits historically filed against universities do not involve sports. Instead, the claims focus on discrimination in education and employment. Universities and their athletic departments are just as susceptible to these lawsuits as they are to claims of gender inequality in sports. Just recently, a number of high-profile lawsuits filed against universities have variously alleged discrimination in the termination of female coaches, athletic directors, and athletic staff.

Cases such as the sexual assault conviction of former Penn State football coach Jerry Sandusky and the murder of Yeardley Love by former University of Virginia classmate and men’s lacrosse team player George Huguely have brought the issue of sexual harassment and assault to the forefront. A growing number of lawsuits now include claims of retaliation by schools against athletic staff for “blowing the whistle” on allegedly discriminatory practices and conduct. Students can make claims of sexual harassment and discrimination against their coaches as well.

Title IX provides that, “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,” including employment. Title VII of the Civil Rights Act of 1964 also prohibits discrimination in employment, but in the context of education it is less widely known than Title IX. Title IX governs the spectrum of educational programs and services, including employment, while Title VII governs solely the terms and conditions of employment. Yet, Title VII can have as much an impact on equity in education as Title IX. While Title IX is the core of equal opportunity for women (and men) in educational programs and activities, Title VII is the core of equal opportunity for all those who work in education.

Athletic professionals are often expected to effectively respond to complaints of discrimination and prevent unlawful discrimination within their departments and athletic programs. However, preventing discrimination depends in large part on understanding the technical aspects of the various laws which prohibit it. The more athletic professionals understand anti-discrimination laws that govern their workplaces, the better equipped they will be to reduce the risk of litigation and help prevent and resolve discrimination claims before they develop into a costly lawsuit.

Let us then step back from the 40th anniversary of Title IX to think about the practical implications of both Title IX and Title VII in the context of college athletics. In this article, we will consider three things (with a chart providing an appendix):

  1. How do Title IX and Title VII figure into discrimination lawsuits in the context of education?
    (Part I)
  2. What claims can arise under Title IX and Title VII, how are they similar and where do they differ?
    (Part II)
  3. What are some best practices for responding to complaints and reducing the risk of discrimination lawsuits?
    (Part III)
  4. Appendix A: Title IX and Title VII – A Chart for Comparative Analysis
    (Part IV)

Part I:

What to Know, Practically, About Title IX and Title VII

Title IX and Title VII are very comprehensive bodies of law, substantively and procedurally. In some respects, Title IX can be broader than Title VII in that it covers all aspects educational programs and activities, not just employment. Title IX also covers students and employees, whereas Title VII applies only to discrimination in employment.

On the other hand, Title VII is broader in the categories of classes protected from discrimination. Title VII prohibits an employer from discriminating against an employee not only on the basis of sex, but also race, color, national origin, and religion. Like Title IX, this includes prohibition of same-sex harassment. 1 By statutory amendment, it also prohibits discrimination on the basis of pregnancy and related medical conditions. 2

Title VII applies to private and public educational institutions with 15 or more employees. 3 This has little practical significance as most schools meet the minimum threshold. There is no employee threshold for Title IX coverage: the only condition is that recipients receive federal financial aid and operate educational programs or activities. A receipt of funding will trigger coverage for the entire school, even if only one of the school’s programs receives federal funding. This rule also applies to indirect funding, so long as it is not too attenuated. A good example of “funding” too remote for coverage is Nat’l Collegiate Athletic Assoc. v. Smith, where the U.S. Supreme Court held that dues payments from recipients of federal funds do not subject the National Collegiate Athletic Association (“NCAA”) to a suit under Title IX. 4

Under Title VII, the plaintiff must first file an administrative charge with the federal Equal Employment Opportunity Commission (“EEOC”) or local human rights agencies that have sharing agreements with the EEOC. 5 If a plaintiff fails to file a charge with the EEOC or related local government agencies, he or she will be precluded from instituting a lawsuit absent exceptional circumstances that may toll the claim.

If, upon investigation, the EEOC finds “no reasonable cause” to believe the Title VII charge is true, it will dismiss the charge and issue a Right-to-Sue Notice to the complainant. A complainant may request a Notice 180 days after the date of filing the charge, thereby allowing a lawsuit to be instituted. The EEOC also may agree to issue an early Notice, provided the agency has determined it cannot complete its investigation within the required 180 days of the filing of the charge. The employee has 90 days to file a Title VII lawsuit or the claim will be time-barred. These limitations are strictly applied by the courts. Absent extenuating circumstances, failure to timely file a lawsuit within the 90-day limit will preclude the Title VII lawsuit.

Under Title IX, an aggrieved individual may file a lawsuit in court immediately. The U.S. Department of Education Office of Civil Rights (“OCR”) is the primary agency responsible for enforcing Title IX. Unlike a claim under Title VII, an employee asserting Title IX discrimination may, but is not required to, file a complaint with the OCR. Individuals who file a complaint with OCR must do so within 180 days of the discrimination or within 60 days of the school’s final decision if the employee utilizes an internal grievance process.

OCR is not required to prosecute the complaint. If OCR determines the complaint is frivolous or OCR lacks jurisdiction, for example, it may decide not to proceed. OCR has the power to take administrative action against educational institutions found to violate Title IX and may refer the case to the U.S. Department of Justice (“DOJ”) for legal action. 6 The DOJ has statutory authority to sue in federal court on behalf of OCR and seek all available remedies, including injunctive relief, specific performance, and monetary damages. 7

OCR will refer cases to the EEOC if the facts more properly fall within the EEOC’s jurisdiction for enforcing employment discrimination claims. 8 In this case, the OCR’s investigation will be stayed pending the EEOC’s determination. However, if a complaint alleges a pattern of discrimination, the EEOC action may be deferred pending the resolution of the OCR process. 9

Because of the time and expense involved in taking the additional step of filing a Title VII discrimination claim with the EEOC, plaintiffs may consider a Title IX lawsuit the better route. Nevertheless, Title VII lawsuits are more prevalent in the courts. This is often because the various claims that can be made under Title VII and Title IX, while similar, are distinct in ways that can influence the structure of a discrimination lawsuit and, by extension, the chances of a positive outcome. Likewise, an employer’s understanding of these distinctions can help in evaluating the risk of litigation and reducing the possibility of a lawsuit being filed.
Part II

Legal Considerations: What Claims Can Be Asserted Under Title VII and Title IX?

 

Both Title IX and Title VII prohibit certain forms of discrimination. In many cases, the two laws overlap in the type of discrimination claim that can be brought. But important distinctions exist between the two with regard to legal standards for establishing and defending against a claim. (See Appendix A to this article for a primer in table format.) These variables make it important for educational institutions to understand the differences between the two laws when determining the risk of liability and assessing the impact of potential claims of discrimination in the educational realm.

The various causes of action available under Title VII and Title IX have developed through federal statutes, implementing regulations and guidelines, and court decisions. 10 From these sources, three forms of prohibited discrimination have emerged: (1) Disparate Treatment, (2) Disparate Impact, and (3) Retaliation. Below we will discuss each in turn.

1.       Disparate Treatment Claims

A disparate treatment claim under either statute is enforceable through a private right of action. 11

Disparate treatment refers to treating similarly-situated persons differently on the basis of a protected category or characteristic. Title VII prohibits discrimination in employment because of race, color, national origin, religion, and sex (including gender, pregnancy and childbirth). 12This extends to conduct at the workplace and off work premises in the course of work-related activities.

Title IX prohibits on the basis of sex alone the exclusion of participation in, denial of the benefits of, and discrimination in educational programs and activities. 13 Similar to Title VII, its prohibitions extend to all academic, educational, extra-curricular, athletic, and programs of a school even if the program or activity takes place off school property.

As with Title VII, proof of discriminatory intent is required to establish a Title IX disparate treatment claim. A plaintiff must show that “but for” his or her sex, the plaintiff would not have suffered the adverse action in question.

Evidence of discrimination may be direct or indirect (circumstantial). 14 Direct evidence proves the fact of discrimination without the need for inference or presumption. This often takes the form of statements or comments by the actual decision makers or those closely involved in the decision making process that clearly evinces a discriminatory animus. 15 Indirect or circumstantial evidence is “evidence which, if believed, establishes the existence of a fact not directly proved through inferences drawn from those facts that are directly proved.” 16

Direct evidence of discriminatory intent is difficult to uncover. Most claims are based on circumstantial evidence that, if proven, would give rise to a rebuttable inference of discrimination. In such cases, courts and investigative agencies apply a three-part burden shifting test. 17

The test for proving a Title IX sex discrimination claim derives from the U.S. Supreme Court decision in McDonnell Douglas Corp. v. Green, which sets forth the legal analysis for examining Title VII discrimination claims in cases of circumstantial evidence. 18

Under McDonnell Douglas, a plaintiff is required to prove a prima facie case of discrimination by establish that he or she is a member of a protected group, that the plaintiff suffered an adverse employment action, and that the adverse action is one that could give rise to a rational inference of discrimination. 19 This last prong tends to be specific to the type of discrimination alleged to have occurred. McDonnell Douglas involved a failure-to-hire claim. Other similar standards are applied in cases such as discharge, failure-to-promote, or failure-to-hire.

If the plaintiff succeeds in presenting a prima facie case, a presumption of intentional discrimination arises. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the action. 20 This is a burden of production and not a burden of ultimate proof. The burden of persuasion that unlawful discrimination occurred always remains with the plaintiff.  21

Once the employer has offered a legitimate explanation for the adverse employment action, the presumption of discrimination drops. 22 The burden shifts back to the plaintiff to produce sufficient evidence that the employer’s proffered non-discriminatory reason is pretext and that the true reason for the adverse action is unlawful discrimination on the basis of sex.

a. Mixed-Motive Cases – When There Are Legitimate Reasons for the Action Taken

A plaintiff can establish an unlawful employment practice under Title VII by “demonstrat[ing] that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 23 In this kind of “mixed motive” case, the plaintiff must demonstrate that it is more likely than not a protected characteristic such as sex “played a motivating part” in the action or decision. 24 Once the plaintiff makes this showing, the defendant can avoid liability if it demonstrates it would have made the same decision even if the illegitimate motive had played no role. 25

Title IX mixed-motive cases are sparse compared to Title VII. Only a few courts appear to have extended the mixed-motive analysis to Title IX discrimination claims. One example is Mercer v. Duke Univ., 181 F. Supp. 2d 525 (M.D.N.C. 2001), a case involving gender discrimination in athletics. There, the district court analyzed the claims under the Price Waterhouse mixed-motive proof scheme. 26 Similarly, in Yusuf v. Vassar College, abrogated on other grounds, the Second Circuit applied a mixed-motive standard to university disciplinary proceedings attacked as discriminatory against the offender. The appeals court held gender need only be a “motivating factor” in the disciplinary decision, stating: “[W]e may safely say that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” 27

b. Available Remedies for Intentional Discrimination

Both Title IX and Title VII permit monetary damages in cases of intentional discrimination. 28 However, compensatory and punitive damages under Title VII are capped by statute. There is a graduated structure which determines the amount of damages that can be awarded. For employers with 100 or fewer employees, no more than $50,000 in damages may be awarded. For employers with 101-200 employees, the cap is $100,000. For employers with 201-500 employees, the cap is $200,000. Finally, for employers with more than 500 employees, the cap is $300,000.

There is no statutory cap on the amount of compensatory damages that may be awarded under Title IX. But it is unsettled whether punitive damages are available in a Title IX case. Several circuit courts have held punitive damages are not recoverable for private actions brought under Title IX. 29 Others have awarded punitive damages in certain instances. 30 Still others have vacated an initial award of punitive damages in light of the U.S. Supreme Court decision in Barnes v. Gorman. 31 There, the Supreme Court held that punitive damages are not available for private actions brought under Title VI. 32 Because Title IX is partly patterned on Title VI, the Fourth Circuit Court of Appeals interpreted Barnes to prohibit punitive damages and, in Mercer v. Duke University, it vacated a punitive damages award. 33 The jury in that case awarded plaintiff Mercer $1 dollar in compensatory damages but $2 million in punitive damages. By vacating the punitive damages judgment, the case was effectively reduced to de minimus dollar value.

Another common legal remedy is an injunction ordering a recipient to perform a certain action. 34Both can be requested in a Title VII and Title IX action. With respect to Title IX, courts also have the power to order the termination of federal funding following a 30-day grace period. 35

C. Attorneys’ Fees

Prevailing parties may apply to the court for attorneys’ fees in Title VII and Title IX cases. 36This is designed to reduce the deterrent effect inherent in filing a lawsuit due to the overwhelming costs of litigation. While attorneys’ fees to prevailing parties may alleviate the costs for plaintiffs, they can have an exponential effect on the amount of damages potentially awarded against a defendant. At the same time, it also can afford monetary relief to prevailing defendants. The award and amount of attorneys’ fees is within the discretion of the court and, early on, there was some controversy over whether the standards applied are different with respect to defendants as compared to plaintiffs. 37 With Title VII, for example, federal courts have applied several tests with arguably heightened standards—including the strict test of “frivolousness”—to determine whether attorneys’ fees should be awarded to a prevailing defendant. 38 Even so, if any portion of a plaintiff’s claim prevails, the award of attorneys’ fees to a defendant could be denied or discounted accordingly.

2. Disparate Impact Claims 

Under Title VII, employees can sue an employer under a disparate impact theory. Disparate impact discrimination can arise when a neutral practice or policy nevertheless has a disproportional impact or effect upon a protected class. In Griggs v. Duke Power Co., the U.S. Supreme Court held that Title VII prohibits not only intentional, individual discrimination, but also employment policies or practices that have a discriminatory impact upon employees. 39

With Title IX, it is not settled whether plaintiffs have a private right of action for disparate impact discrimination. Some courts have applied a disparate impact theory in analyzing cases where institutions utilize policies or practices that result in the provision of fewer services or benefits or which have an adverse effect upon the protected class. For example, in Sharif v. New York State Educ. Dep’t, 40 the district court found the state’s sole reliance on SAT scores to determine eligibility for merit scholarships had a discriminatory impact on women and held the practice violated Title IX. Many courts have yet to address this issue and the question remains as to whether a disparate impact claim can be brought by an individual in other federal jurisdictions.

Federal agencies have supported the establishment of a private cause of action for Title IX disparate impact discrimination. In its Title IX Legal Manual, the DOJ argued for a private right of action on the theory that courts have held a private right of action exists under Title VII’s federal regulations. 41 However, in 2001, the U.S. Supreme Court held in Alexander v. Sandoval that no private right of action exists to enforce federal disparate impact regulations promulgated under Title VI. 42 Because Title IX is partly patterned on Title VI, the Supreme Court’s ruling could be interpreted to mean no private right of action exists to enforce a Title IX disparate impact claim based solely on regulations supporting it.

3. Retaliation Claims

Both Title VII and Title IX permit claims of retaliation where an individual has validly complained about discrimination, participated in an investigation of discrimination, or opposed a discriminatory act or policy. In Jackson v. Birmingham Board of Education, a seminal Title IX case, the Supreme Court explained that retaliation is, by definition, a form of discrimination because the complainant is subjected to differential treatment “on the basis of sex” in response to having made an allegation of sex discrimination. 43 While recognizing that Title IX does not provide a cause of action for retaliation, the Supreme Court nevertheless emphasized that it has repeatedly interpreted Title IX to include conduct not expressly mentioned in the statute, such as sexual harassment. 44 Thus, retaliation fit into the Title IX schematic despite not being mentioned in the statute itself.

The complainant need not be the actual victim of the alleged discrimination for a claim of retaliation to be asserted. In Jackson, the Supreme Court was not convinced by the argument that a victim of retaliation would not be protected because he or she did not suffer the direct effects of discrimination. The Court noted the statute is broadly worded and does not require the victim of the retaliation to be the victim of the discrimination. Of course, where the retaliation occurs because the complainant speaks out about sex discrimination, the statute’s “on the basis of sex” requirement is directly satisfied. 45

4. Sexual Harassment Claims

Title IX derives much of its anti-harassment law from Title VII. Both laws prohibit quid pro quo sexual harassment and hostile environment harassment.

A Title IX sexual harassment discrimination claim requires proof similar to that required for a Title VII claim. 46 A quid pro quo sexual harassment claim generally requires proof of three elements: (1) the rejection of sexual advances; (2) a tangible school-related consequence; and (3) a causal connection between the two. 47

A plaintiff asserting an unlawful hostile environment generally must prove: (1) that she or he belongs to a protected group; (2) that she or he was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of her or his education. 48

Monetary damages are available in a private action for sexual harassment in violation of Title IX as well as Title VII. 49 However, the legal standard for awarding damages is different. Under Title IX, damages may not be recovered unless the plaintiff proves one or more school officials with authority to institute corrective measures on the school’s behalf had “actual notice of, and was deliberately indifferent to, the harassing conduct.” 50 Thus, plaintiffs seeking money damages for sexual harassment must produce evidence that school officials with the “authority to address the alleged discrimination and to institute corrective measures” had “actual knowledge of [the] discrimination… and fail[ed] adequately to respond.” 51

The education-specific standards do not apply to claims for sexual harassment under Title VII, which are geared toward the employment context. In addition, under Title VII, an employer has an affirmative defense against vicarious liability if it shows it had an adequate anti-discrimination policy in place at the time of the alleged harassment, took reasonable measures to investigate an employee’s complaint of discrimination, and took appropriate remedial action if the complaint is determined to have merit. 52

In cases where the claim is workplace harassment in education, these standards theoretically converge. Because of this, some courts have precluded a Title IX claim where the remedies sought are also available under Title VII. In Howard v. Board of Education, for example, the court held a teacher’s Title IX claim was precluded by the remedies afforded under Title VII and dismissed the claim accordingly. 53

Not all courts agree with this approach. In Henschke v. New York Hospital-Cornell Medical Ctr., the court held an employee may maintain a private cause of action for gender-based employment discrimination under Title IX and that Title VII did not preclude a separate cause of action. 54 In Lakoski v. University of Tex. Med. Branch, the DOJ also argued in an amicus brief to the Supreme Court that an employee should be entitled to assert a discrimination claim under both Title VII and Title IX. 55 The U.S. Supreme Court denied certiorari and therefore let stand the lower court decision by the Fifth Circuit Court of Appeals holding that Title VII is the exclusive means of relief for employment discrimination claims in education.

In the absence of a definitive ruling by the Supreme Court, the issue of preclusion remains unsettled and jurisdictionally-based. Thus, in cases where workplace discrimination lawsuits are brought under both statutes, schools should consult an experienced attorney to determine the level of exposure in accordance with the jurisdictional court presiding over the case.

A. Sexual Violence and the DoEd’s Dear Colleague Letter – New Policy Standards

Sexual harassment should always be understood to include sexual violence. This view was expressly affirmed by the Department of Education in its April 4, 2011, “Dear Colleague Letter” reiterating that Title IX’s prohibitions against sexual harassment also cover sexual violence and that schools must “take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX.” 56

The Department broadly defined sexual violence to mean “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” 57 The Department added, “An individual also may be unable to give consent due to an intellectual or other disability.” Sexual violence includes, but is not limited to, rape, sexual assault, sexual battery, and sexual coercion. 58

The Department lays out specific Title IX requirements for responding to sexual harassment/violence. 59 These guidelines are comprehensive and should be reviewed in full by all athletic personnel. In general, the Department advises the following:

  • If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
  • A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
  • A school’s grievance procedure must provide for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
  • A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
  • A school must notify both parties of the outcome of the complaint. 60

The Department applies the “reasonableness” test for determining when a school must respond to a possible incident of sexual violence. That is, if a school “knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.” 61 (Emphasis added.)

Moreover, when investigating whether sexual violence has occurred, the Department instructs schools to apply the legal standard of “preponderance of the evidence,” rejecting the heightened “clear and convincing” standard previously utilized by some schools.  62 This standard is in keeping with the burden of proof required for establishing a prima facie case of discrimination under Title VII.

In the Department’s view, a school is expected to act once it has reasonable knowledge of possible sexual harassment/violence whether or not the victim has filed a complaint. 63 In addition, a law enforcement investigation does not relieve the school of its independent obligation to investigate the alleged conduct. 64Rather, the Department advises schools to conduct an investigation irrespective of parallel investigations undertaken by other agencies, including local law enforcement. 65

In addition to ensuring full compliance with Title IX, the Department recommends that schools take proactive measures to prevent sexual harassment and violence, including providing preventive education programs, extensive training, and comprehensive victim services. Educational programs should include a discussion of what constitutes sexual harassment and sexual violence, the school’s policies and disciplinary procedures, and the consequences of violating these policies. 66

Consistent with its normal procedures, the Department will seek to obtain voluntary compliance from recipients found to be in violation of Title IX requirements. But if a recipient does not come into compliance voluntarily, OCR is empowered to initiate proceedings and withdraw Federal funding; or it may refer the case to the DOJ for litigation. 67 The Dear Colleague Letter makes clear that a school’s investigation of a complaint of sexual violence is subject to Department oversight and possible intervention. It includes a stern warning: “when OCR finds a school has not taken prompt and effective steps to respond to sexual harassment or violence, it will seek appropriate remedies for both the complainant and the broader student population.” 68

Although federal agency guidelines do not carry the same weight as law or regulations, the Department’s Dear Colleague Letter nevertheless should be taken seriously because it can create new areas of potential liability. Much depends on how these guidelines will be interpreted and applied by both the Department and the courts. Meanwhile, educational institutions must try to reconcile well-established Title VII policy requirements established by the EEOC and court precedent with new policy recommendations emerging under Title IX. If uncertain, consult with an experienced attorney on the best means for achieving compliance under both laws.
Part III

Practical Tips For Reducing the Risk of Title IX/Title VII Litigation

There is no failsafe mechanism for avoiding lawsuits, but measures can be taken to help an educational institution reduce the risk of liability for discrimination claims. The most important rule is to try to prevent discrimination from occurring through effective training and education. Thus, all schools should provide annual or semi-annual training in both Title VII and Title IX. Lawyers familiar with how these laws are litigated are in the best position to provide the practical advice and training needed to comprehensively educate employees and students about the school’s policies and anti-discrimination laws.

In addition, schools can take proactive measures to help reduce the prospect of litigation. Below are practical tips to consider when dealing with discrimination complaints which, in turn, can help reduce the probability of a subsequent lawsuit.

  1. Conduct Comprehensive Training of All Personnel. Schools must regularly train all personnel in the athletic department. This includes athletic directors, assistant athletic directors, full- and part-time coaches, trainers, recruiters, and all levels of administrative staff. But it also should include any other personnel who may be in a position to witness or learn of potential discrimination.
  2. Educate All Student-Athletes Regarding Anti-Discrimination. Administrators should consider regular training and education of student-athletes regarding anti-discrimination laws and school policies, particularly with regard to sexual harassment and violence in addition to appropriate conduct during school activities on and off campus. As with employees, conduct student-athlete training every year, prior to season.
  3. Regularly Review and Update Anti-Discrimination Policies. Rules and guidance can change. Schools should consult an experienced lawyer to ensure its anti-discrimination policies and procedures fully comply with regulatory requirements, policies, and enforcement guidance, as these often evolve in response to real world events. Stay on top of changes in the scope and application of federal and state laws to ensure the school’s anti-discrimination policies correspond accordingly. Also, do not assume tried and tested employment policies that comply with Title VII will also comply with Title IX. Institute policies that address both.
  4. Apply “Preponderance of the Evidence” as the Legal Standard of Proof. Schools should apply the “preponderance of the evidence” standard of proof when investigating complaints of discrimination, including complaints of sexual harassment or violence. This is the legal standard the Department of Education now adheres to and it is also the legal standard that applies in a Title VII intentional discrimination lawsuit. Inconsistent standards in a school’s grievance procedures can lead to charges of bias and be used adversely against a school in a subsequent lawsuit.
  5. Ensure School Policies Are Truly Accessible. Don’t file away anti-discrimination policies in a back office cabinet. Consistently discuss the school’s anti-discrimination stance and ensure all staff and student-athletes can access the school’s anti-discrimination policies and procedures through the athletic department as well as other sources. Tell staff and students they can seek assistance from athletic administrators without fear of retaliation. Keep the school’s policies on hand for quick reference.
  6. Obtain Written Acknowledgement of Receipt of Anti-Discrimination Policies. Athletic administrators should disseminate anti-discrimination policies to their staff upon hire and obtain a signed acknowledgment of receipt at the time of distribution. If policies are revised or updated, re-distribute the revised policies with a new acknowledgment form that must be signed. Do the same for policies governing the conduct of student-athletes, including appropriate conduct at school activities both on and off campus.
  7. Implement an Easy System for Reporting Complaints. Make it simple for staff and student-athletes to report complaints. Victims can feel intimidated by high-level personnel or believe (reasonably or not) that school personnel are inherently favorable to the school. Be sure to offer a way for complainants to avoid having to report complaints to coaches or other supervisors who may be the accused perpetrators. Inform staff and student-athletes that retaliation for reporting complaints of discrimination is prohibited and that this will be strictly enforced by the Department at all times.
  8. Require Athletic Personnel to Promptly Report Potential Discriminatory Conduct. Require personnel who regularly interact with student-athletes and staff to report any school misconduct. This includes conduct that, under the totality of the circumstances, could reasonably be understood as discrimination, such as negative remarks or mistreatment of others based on race, color, religion, sex, sexual orientation, and similar attributes, as well as bullying, hazing, and potential “hate” crimes. Absolutely never delay reporting knowledge of violence against others or the commission of criminal acts, such as sexual assault or rape.
  9. Encourage Student-Athletes to Report Incidents of Mistreatment, Harassment, and Discrimination. Break the code of silence that can exist within a team. Explain to players that the health and safety of students are at stake when serious misconduct is not promptly stopped. Require players to refrain from engaging in misconduct themselves but also to report acts of violence or harm. Adopt a zero tolerance stance on recrimination by players against those who speak out.
  10. Take the Reporting Process Through to Completion. Athletic administrators should not merely report potential discrimination to an immediate supervisor or professional peer and assume the obligation to act is satisfied. Ideally, follow up with supervisors and confirm, in writing, that the report was received and action is being taken. If there is no response or an insufficient response from supervisors, report the matter up the chain of command in accordance with school policies. If unsure whether to disclose an incident, err on the side of reporting. The worst response is to take no action or assume it is someone else’s obligation to act.
  11. Promptly Investigate All Complaints. Schools, including athletic administrators, should promptly and objectively investigate all complaints and document the efforts taken. This should be done consistent with school policies and in cooperation with any officials specifically designated to conduct investigations. If others are conducting the investigation, follow up to determine if and when the matter has been resolved. Cooperate at all times with any corrective action to be implemented. Monitor the situation for a sufficient period after the matter is resolved to ensure the offending conduct, in fact, has stopped. Do not assume the matter is resolved because of silence by the complainant.
  12. Investigate Regardless of Parallel Law Enforcement Actions. Do not assume that outside intervention or law enforcement will supplant the school’s duty to investigate. Schools should investigate a complaint of discrimination or a reasonable belief that discrimination has occurred regardless of any action that may be taken by government agencies or law enforcement personnel.
  13. Understand the Boundaries of Confidentiality. All athletic personnel should be trained to know under what circumstances the school may or may not keep information confidential and how to respond to a complainant, accused, or witness who asks for confidentiality. A request for confidentiality can impact a school’s ability to investigate a complaint and also must be handled in accordance with laws governing student confidentiality in education records as well as due process rights of the accused. If unclear, always seek assistance from counsel or school administrators and encourage staff to do the same.

Finally, schools can use the reporting and self-auditing requirements under laws such as Title IX and the Clery Act to internally assess the risk of unlawful discrimination claims. If complaints are increasing in certain areas, schools should work with outside counsel or consultants to develop ways to reduce complaints through practical solutions. These can involve revising standard performance evaluations; restructuring the chain of command or reporting procedure; providing an opportunity for greater dialogue among staff, students, and management; redesigning training programs; implementing or enhancing existing training and education; or simply rewriting the school’s policies to make them easier to read and understand, and therefore easier to follow.

References:

  1. Oncale v. Sundower Offshore Services, 523 U.S. 75 (1998). While Title VII does not specifically list sexual orientation as a protected category some federal courts – led by the 9th Circuit – have interpreted Oncale’s prohibition of same-sex harassment to include harassment based on sexual orientation. Seee.g.Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), cert. denied, 538 U.S. 926 (2003)
  2. As amended by the Pregnancy Discrimination Act, Title VII prohibits sex discrimination on the basis of pregnancy, childbirth, and related medical conditions. By regulation, Title IX prohibits discrimination on the basis of pregnancy, parental status, and marital status.
  3. Title VII also covers labor organizations and employment agencies, but does not cover a bona fide private membership clubs that are exempt from taxation under section 501(c) of Title 26 of the Internal Revenue Code of 1986.
  4. 525 U.S. 459 (1999).
  5. The complainant has 180 calendar days to file a charge with the EEOC. The filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. See 29 C.F.R. 1601.13.
  6. Exec. Order No. 12250, 5 FR 72995, 3 C.F.R. Comp., p. 298 (1980).
  7. See DOJ Legal Manual, § (X)(a)(2) (1998) (citing 28 C.F.R. § 50.3), available at: http://www.justice.gov/crt/grants_statutes/legalman.php.
  8. 28 C.F.R §§42.601-42.613 (DOJ); 29 C.F.R. §§1691.1- 1691.13 (EEOC).
  9. 29 C.F.R. § 1691.5(f).
  10. In North Haven Bd. of Educ. v. Bell, 456 U.S. at 521, the U.S. Supreme Court took a broad approach to Title IX’s prohibition of discrimination, noting that the statute must be accorded “a sweep as broad as its language.”
  11. See Cannon, 441 U.S. 677.
  12. 42 U.S.C. § 2000e, et seq
  13. Title IX, 20 U.S.C. § 1681, et seq.
  14. In its Title IX Legal Manual, the U.S. Department of Justice lists various sources of direct and circumstantial evidence that could demonstrate discriminatory intent, including “statements by decision makers, historical background of the events in issue, the sequence of events leading to the decision in issue, a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct, and statistical evidence.”
  15. Linville v. Hawaii, 874 F. Supp. 1095 (D. Haw. 1994), citing Brown v. East Mississippi Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993).See alsoByrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).  
  16. Linville, 874 F. Supp. at 1108, citing Kishaba v. Hilton Hotels, Corp., 737 F.Supp. 549, 551 (D.Haw. 1990). See alsoByrnie, 243 F.3d at 102. The Linvillecourt, applying Title VII’s standards, further stated “circumstantial evidence is evidence which is “adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under Title VII, … i.e., evidence that indicates that ‘it is more likely than not’ that the employer’s actions were based on unlawful considerations.” Id. (citations omitted). 
  17. The three-part test was established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which was a Title VII employment discrimination case. Courts have since adopted this test to analyze Title IX disparate treatment claims. See Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc).
  18. 411 U.S. 792.
  19. Byrnie, 243 F.3d at 102.
  20. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)Byrnie, 243 F.3d at 102.
  21. Burdine, 450 U.S. at 253 (“[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”);

    Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. N.Y. 2009) (same).

  22. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993); Fisher v. Vassar College, 114 F.3d at 1336.
  23. 42 U.S.C. § 2000e-2(m).
  24. Price Waterhouse v. Hopkins, 490 U.S. 228, 258.
  25. Id.
  26. Mercer, a female student at Duke University, tried out as a kicker for the college football team. After a winning kick in a scrimmage, the head coach initially granted her a spot on the team. However, the coach allegedly did not permit Mercer to attend summer camp, refused to allow her to dress for games or sit on the sidelines during games, and ultimately dropped her from the team. Mercer sued the university and the coach for Title IX discrimination. The district court found that Title IX excluded contact sports and granted defendants their motion to dismiss. On appeal, the Fourth Circuit vacated the order and remanded for further proceedings, holding that once a university has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the university is subject to Title IX and prohibited from discriminating against that individual on the basis of sex. See Mercer, 190 F.3d 643.
  27. See Yusuf, 35 F.3d at 715.
  28. For Title IX, see Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992). Money damages can include back pay; lost benefits; compensatory damages; and attorneys’ fees and costs.
  29. Applying the U.S. Supreme Court’s decision inBarnes v. Gorman, 536 U.S. 181 (2002) (holding punitive damages are not available for private actions brought under Title VI), the Fourth Circuit Court of Appeals held in Mercer v. Duke Universitythat punitive damages may not be recovered in private actions brought under Title IX. See Mercer, supra, 50 Fed.Appx. 643 (4th Cir. 2002). Several courts have followed suit. See, e.g., Frechel-Rodriguez v. P.R. Dep’t of Educ., 478 F. Supp. 2d 191, 199 (D.P.R. 2007) (granting defendant’s motion to dismiss on punitive damages based on the Fourth Circuit’s ruling in Mercer v. Duke University);Mansourian v. Bd. of Regents, 2007 U.S. Dist. LEXIS 77534 (E.D. Cal. Oct. 18, 2007) (“As such, because the Supreme Court has found that punitive damages may not be awarded in private suits under Title VI, it follows that they may not be awarded in private suits under Title IX.”), reversed on other grounds,Mansourian v. Regents of the Univ. of Cal., 594 F.3d 1095 (9th Cir. Cal. 2010); Elizabeth S. v. Okla. City Pub. Schs, 2008 U.S. Dist. LEXIS 67099 (W.D. Okla. Sept. 3, 2008) (“because the Supreme Court has found that punitive damages may not be awarded in private suits under Title VI, the Court finds that they may not be awarded in private suits under Title IX.”).
  30. Seee.g. Nelson v. University of Maine, No. 95-0179-B (D.Me. 1997) (awarding $30,000 compensatory damages; $50,000 punitive damages; $94,000 attorneys’ fees).
  31. 536 U.S. 181 (2002).
  32. Title VI provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
  33. Seee.g.Mercer v. Duke Univ., 181 F.Supp.2d 525, 531 (M.D.N.C.2001), vacated in part & remanded, 50 Fed.Appx. 643 (4th Cir.2002) (“Because Title IX is interpreted consistently with Title VI, the Supreme Court’s decision in Barnes compelled us to vacateMercer’s punitive damage award.”). 
  34. See Cannon, 441 U.S. 667. See also, United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984).
  35.  Baylor Univ. Med. Ctr., 736 F.2d 1039. Courts, however, have recognized that the termination of funds by OCR may not be adequate to protect individual discrimination in cases requiring reinstatement or other protection against discriminatory practices. See Cannon, 441 U.S. 677.
  36. 42 U.S.C.A. § 1988 (b).
  37. Seee.g., McMorrow, William J., “Title VII and Attorney’s Fees: A Double Standard,” Labor Law Journal, Vol. 29, Issue 7, July 1978 (discussing whether courts apply a stricter standard in determining an award of attorneys’ fees for prevailing defendants compared to prevailing plaintiffs).
  38. Seee.g.EEOC v. Great Steaks, Inc., 667 F.3d 510 (4th Cir. 2012) (holding defendants can obtain attorneys’ fees under Title VII only if the suit was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so).
  39. Seee.g.Griggs v. Duke Power Co., 401 U.S. 424 (1971).
  40. 709 F. Supp. 345 (S.D.N.Y. 1989).
  41. See DOJ Legal Manual, § IV (A)(2) (1998). The Department of Justice cited the following cases in support of its argument: Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), aff’d, 197 F.3d 484 (11th Cir. 1999); Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999). The U.S. Supreme Court did not definitively answer the question, in Alexander v. Sandoval, until 2001.
  42. 532 U.S. 275 (2001).
  43. 544 U.S. 167 (2005).
  44. See “Supreme Court Gives Green Light for Retaliation Claims under Two Civil Rights Statutes,” Jackson Lewis LLP (May 8, 2008), published online at http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1393. 
  45. Id.
  46. Papelino, 633 F.3d at 89.
  47. IdSee alsoKaribian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir.1994).
  48. Id
  49. See Franklin v. Gwinnett, 503 U.S. 60 (1992) (holding monetary damages are available in private actions for sexual harassment).
  50. Id. (holding money damages are available only where the recipient had “adequate notice” that it could be liable for the conduct at issue).
  51. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. at 290.
  52. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998).
  53. 893 F. Supp. 808, 812 (N.D. Ill. 1995).
  54. 821 F. Supp. 166 (S.D.N.Y. 1993).
  55. In Lakoski v. University of Tex. Med. Branch, 519 U.S. 947 (1996), the DOJ made this argument in its amicus curiae brief addressing whether a private suit for damages for employment discrimination under Title IX is precluded by Title VII.
  56. See U.S. Department of Education Office of Civil Rights Fact Sheet available online at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201104.html.
  57. U.S. Department of Education Office of Civil Rights Dear Colleague Letter dated April 4, 2011 (“2011 Dear Colleague Letter”).
  58. Id.
  59. The 2001 Guidance is available on the Department’s website athttp://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
  60. See U.S. Department of Education Office of Civil Rights Fact Sheet available online at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201104.html.
  61. Id.
  62. Id.
  63. Id.
  64. Id.
  65. Id.
  66. Id.
  67. Id.
  68. Id.