Employers who are operating educational programs or activities – whether inside or outside educational institutions – take note: a recent court decision adds to a split in the federal appellate courts by allowing employees more than one avenue of relief for employment discrimination claims.
As employers should already know, Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex, and national origin. It also requires employees to take certain steps before they can file suit in court, known as exhausting administrative remedies. Though it is not overly burdensome to exhaust administrative remedies, it is a necessary procedural requirement and the failure to do so often provides employers with a defense to such claims. By contrast, Title IX of the Education Amendments Act of 1972 , which bars discrimination under any education program or activity receiving federal financial assistance, does not have the administrative hurdles of Title VII; Title IX plaintiffs can bring suit directly in court. Title IX also has a less stringent statute of limitations, giving plaintiffs more time to file their claims.
The federal appellate circuit courts have long been split on the issue of whether employees of educational institutions must file employment discrimination claims under Title VII or whether they may instead file such claims under Title IX. The Fifth and Seventh Circuits have categorically held that such employees may only proceed under Title VII, while the Fourth and Sixth Circuits have held employees of educational institutions may pursue a private right of action for employment discrimination under Title IX. The Third Circuit has now entered the fray, concurring with the Fourth and Sixth Circuits and holding in Doe v. Mercy Catholic Medical Center, “a private [right of action] exists for employees of federally-funded educational programs under Title IX, notwithstanding Title VII’s concurrent applicability.” The Third Circuit extended the private right of action to retaliation claims and quid pro quo harassment claims.
Note that in Doe, the Third Circuit joined the Second Circuit to broadly define an “education program or activity” as any program or activity with “features such that one could reasonably consider its mission to be, at least in part, educational.” In the case of Doe, such a definition encompassed a private teaching hospital with a residency program. Therefore, this decision impacts schools and establishments traditionally considered educational institutions, but may also apply to businesses with apprenticeships and training programs as well.
With nearly half of the federal Circuits directly addressing this question without consensus, it is likely that the Supreme Court will address this issue at some point in the future, perhaps even on petition by Doe. Given the current composition of the Supreme Court, Mercy Catholic Medical Center may like its chances at having the decision reversed. For now though, employers whose mission is at least in part educational should be aware of the split in authority and continue to monitor the issue.
Employers outside of the education sector should also be aware of this case. This decision, in combination with the Seventh Circuit’s recent decision in Hively v. Ivy Tech. Community College of Indiana, which held that Title VII prohibits discrimination based on sexual orientation despite the fact that sexual orientation is not specifically listed in the statute, may signal that federal courts are becoming an increasingly employee-friendly venue. Relying on Hively, Matthew Christensen, an advertising employee and appellant in a Second Circuit case, already sought en banc review to reconsider the Second Circuit’s decision in Simonton v. Runyon, which held Title VII does not offer such protection. Stay tuned.
