Protection for Title IX Whistleblowers

July 7, 2010

In the years since the U.S. Supreme Court recognized a private right to action for retaliatory discrimination under Title IX in 2005, numerous athletics officials have brought cases against their institutions, arguing that they were either let go or mistreated because they raised concerns about gender equity on behalf of students or coaches.

In an article in the latest issue of the Duke Journal of Gender Law and Policy, Erin Buzuvis, associate professor at Western New England College School of Law and co-founder of The Title IX Blog, argues that this relatively new legal tool creates “a strong incentive for athletic departments seeking to avoid liability to monitor for and address institutional practices that drive and deter women from coaching.”

In Jackson v. Birmingham Board of Education — in which a high school girls’ basketball coach argued that he had lost his job because he complained about the inequitable allocation of resources between girls’ and boys’ teams — the Supreme Court determined that “retaliation against whistleblowers is included in” Title IX of the Education Amendments of 1972’s “broad, statutory prohibition on sex discrimination.” Buzuvis argues that this decision has opened the door for litigation by athletics officials who felt that they were mistreated for speaking out, primarily because they no longer have to prove that discrimination occurred against them but just that they perceived it to exist.

“For example, it is difficult for female coaches to challenge sex-based pay discrimination because they must demonstrate the university’s failure to treat them similarly to a male coach of comparable responsibility,” Buzuvis writes. “Due to Title IX’s cause of action for retaliation, it is more likely that a coach who is fired for complaining about perceived pay discrimination will pursue some relief against the university than if she was limited to remedies for pay discrimination itself or if her retaliation claim required her to succeed on the pay discrimination claim itself.”

In the half-dozen or so retaliation cases filed since 2005, and reviewed in Buzuvis’s article, all of the plaintiffs experienced retaliation of some kind after challenging possible Title IX violations at their institution. An associate athletic director at California State University at Fresno, women’s volleyball and golf coaches at Florida Gulf Coast University, and an athletics director and women’s basketball coach at Feather River College all questioned the disparity between spending on men’s and women’s athletics and later said they suffered professional consequences as a result.

Cases have also been brought forward citing employment discrimination claims as the “predicate” for retaliation against the plaintiff. Among others, a University of Nevada at Reno women’s soccer coach, an Iowa State University softball coach, and a swimming and diving coach at San Diego State University all asserted that they suffered retaliation after challenging the lower salaries and shorter contracts they received relative to their male colleagues.

Buzuvis notes how these cases differ from those made prior to the Jackson decision.

“It was the absence of a direct discrimination claim that made his case groundbreaking for establishing that Title IX protects a third party who is not a direct target of sex discrimination,” Buzuvis writes. “The fact that so many of the post-Jackson cases involve employment discrimination complaints as a predicate for retaliation exposes and underscores the discrimination female coaches perceive in the terms and conditions of their employment.”

Given that so many of these recent retaliation cases have been decided in the plaintiff’s favor, Buzuvis argues that universities are now more willing than ever before to allow for athletics officials to challenge either their compensation or employment conditions internally. She believes that the financial damages awarded plaintiffs in these cases — as large as $19.1 million in the 2007 case of a women’s basketball coach at Fresno State — have scared some administrators into compliance where prior “public shaming” for Title IX violations was not enough.

“It’s got to be the money, because plenty of schools haven’t yet felt shame for not complying with Title IX,” Buzuvis said in an interview with Inside Higher Ed. “The cost is going to be the measure against retaliation in the future. Say ‘Here’s this coach who says we’re not paying women equally. Well, we can’t fire her for that because that’s going to get us in a lot of trouble.’ ”

Simply paying the criticizing coach more, she argued, may be cheaper in the long run.

In addition to claims about pay, Buzuvis believes that retaliation cases can help bolster other hard-to-prove legal claims, such as accusations of sexual orientation discrimination or unequal access to resources for teams.

“Discrimination cases are tough to win and sexual orientation claims don’t exist, but when you couple them with a retaliation claim, you can imagine yourself winning,” Buzuvis said. “I think it’s a good thing. I don’t know if this’ll be the linchpin going forward to end all Title IX complaints once and for all. But we’ve never had more of a weapon to throw at discrimination.”

Even some of those on the other side of the Title IX debate, who argue that the law has had dire consequences for male sports and who push for its reform, believe that the retaliation defenses established by the Jackson case have merit. In this case, here is a rare point of agreement among those on both sides of the issue.

Eric Pearson, chairman of the College Sports Council, a group that advocates for Title IX reform, said he believes “whistleblower protection is a good thing,” but acknowledges that it has not yet been broadly used by those who feel they have been retaliated against for making public criticism of Title IX, primarily male coaches of men’s sports.

“Coaches are very fearful of speaking out for fear of their administration,” Pearson said. “Whoever it protects, it’s a good thing. Whistleblower protection regarding Title IX complaints has no impact on men’s sports, but it could have an impact in the long run if a male coach feels that they were retaliated against based on their push for Title IX reform — for instance, for a coach who writes an op-ed or something. That’s how we feel. It’s a positive. This is not an area of conflict for us regarding Title IX. If someone feels they’ve been discriminated against, they should feel they have a right to speak out.”

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