Supreme Court to Review Whether Employees Can Sue Under Title IX

The U.S. Supreme Court will consider next term whether Title IX of the Education Amendments Act of 1972 provides employees of federally funded educational institutions a private right of action for sex discrimination in employment. If the court rules that Title IX grants employees a right of action, Title VII of the Civil Rights Act of 1964 won’t be plaintiffs’ only avenue for relief from sex discrimination.

Impact if Employees Could Sue Under Title IX

Such a ruling would give “an additional cause of action and additional time to pursue it in circuits that have previously ruled that it is unavailable,” said Lisa Karen Atkins, an attorney with Ogletree Deakins in Birmingham, Ala. 

Title IX and Title VII compliance differ in many ways. If employees can sue under Title IX, there would be:

• A longer filing period for the employee under Title IX. Under Title VII, an employee in a “deferral state” has 300 days to file a U.S. Equal Employment Opportunity Commission (EEOC) charge alleging sex discrimination. In “nondeferral states,” they have 180 days. Under Title IX, the courts apply the forum state’s personal-injury statute of limitations, meaning the same filing limitations period as personal injury cases. Depending on the state, a Title IX plaintiff can have as long as three to seven years to file a claim in court. 
• No administrative exhaustion under Title IX. A Title VII plaintiff must first file a charge with the EEOC within 180 or 300 days and obtain a right-to-sue letter. A Title VII plaintiff has 90 days to file in court following receipt of a notification of rights. A Title IX plaintiff can file directly in federal court.
• No 15-employee limit for liability under Title IX. Title VII, by contrast, applies to employers with 15 or more employees.
• No statutory damages caps under Title IX. Title VII limits recoverable damages based on the number of employees the employer had during the current or preceding calendar year and caps compensatory and punitive damages by employer size. Title IX has no equivalent cap. While Title VII allows recovery of punitive damages, Title IX does not unless the defendant is a state or territorial government. Title VII allows recovery of emotional distress damages. Title IX does not.

The Supreme Court has not stated if Title VII’s procedural requirements apply to employment discrimination claims under Title IX. Lower courts that have faced this question are divided. One view treats Title IX as an independent basis for finding discrimination that is subject to Title VII’s substantive law, but not its procedural requirements. Under this view, complainants filing under Title IX are not subject to Title VII’s filing deadlines, exhaustion requirements, or state referral requirements, but are still governed by Title VII’s substantive standards. The other view is that administrative exhaustion of Title VII pre-empts Title IX in employment.

Toolkit: Managing Equal Employment Opportunity

“If the Supreme Court holds that Title IX provides an implied private right of action for employees, the ruling would likely extend to all employees of federally funded educational institutions,” said Jessica MacKeigan, an attorney with Thompson Hine in Cleveland.

“HR professionals and Title IX coordinators would likely need cross-training on Title IX and Title VII requirements, as the investigation and response to an employee’s sex discrimination complaint may implicate both Title IX and Title VII obligations,” she said.

Carrie Valdez, an attorney with BakerHostetler in Cleveland, said the court might issue a narrower holding, limiting the scope of possible claims to employees whose work is closely connected to the institution’s educational activities. “If the court so holds, only teachers, professors, coaches, and other personnel involved in the institution’s education programs or activities would be able to sue privately under Title IX,” she said.

“Regardless of whether individual employees have a private right of action, the federal government will still have the authority to enforce Title IX and ensure that covered institutions comply,” said Susan Friedfel, an attorney with Jackson Lewis in White Plains, N.Y., and New York City.

In addition, the Supreme Court has already held in a prior decision that an employee of a federally funded educational institution could bring a private cause of action for retaliation in connection with complaining about sex discrimination experienced by students, noted Linda Hollinshead, an attorney with Duane Morris in Philadelphia.

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Title IX’s Application

“Title IX’s reach is vast,” said Lilah Wylde, an attorney with Seyfarth in San Francisco. 

According to the National Center for Education Statistics, recipients of federal financial assistance from the U.S. Department of Education subject to Title IX include approximately 17,600 local school districts, more than 5,000 postsecondary institutions, and charter schools, for-profit schools, libraries, and museums, as well as vocational rehabilitation agencies and education agencies of all 50 states, the District of Columbia, and U.S. territories.

If the Supreme Court rules for employers, Title VII will remain the primary vehicle for employees’ sex discrimination claims, with its familiar procedural framework and damages limits intact, Wylde noted.

The court’s next term starts Oct. 5.