A federal court of appeals’ recent decision to extend Title VII’s protection to sexual-orientation employment discrimination undoubtedly changes the legal landscape in which employers, including institutions of higher education, operate within the Seventh Circuit (Illinois, Indiana and Wisconsin). Given the tendency of courts to look to interpretations of Title VII when making legal rulings under Title IX, this new decision also opens the question of whether courts will begin interpreting Title IX to also prohibit sexual-orientation discrimination.
For example, several federal courts have rejected claims by students alleging that they were subjected to harassment by other students in the form of epithets about their sexual orientation and that the educational institutions failed to adequately respond. Courts, by and large, rejected these claims outright, finding that Title IX does not protect against sexual-orientation discrimination.
Similarly, in 2004, a student and member of the women’s basketball team at North Central College in Naperville, Ill., asserted that she was subjected to harassment because she was heterosexual. Specifically, she alleged that her playing time was reduced, that she was treated differently and criticized more by the coaching staff, and that she ultimately had to leave the team as a result. Finding that Title IX did not protect against discrimination based on sexual orientation, the court dismissed the claims. Importantly, that court’s analysis looked specifically to the Seventh Circuit’s old Title VII cases to find that Title IX similarly did not protect against sexual-orientation discrimination.
The Seventh Circuit’s break with its own prior interpretation of Title VII -- and the interpretation of all other courts of appeals to have evaluated the issue -- likely sets up a question ultimately bound for resolution by the Supreme Court. Absent some expedited action, however, that decision is unlikely to come any sooner than early 2018. Thus, other lower federal courts across the country will have the opportunity to decide several related questions, including whether they are willing to follow the Seventh Circuit’s reasoning and extend it to the Title IX context.
Title VII’s Relationship With Title IX
Title VII of the Civil Rights Act of 1964 is a federal employment-discrimination statute. As relevant here, Title VII makes it illegal for an employer -- including educational institutions -- “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.”
Title IX of the Education Amendments Act of 1972 provides, “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.”
Thus, while the statutes use slightly different language, they both prohibit sex discrimination. And courts have found the similarities in these statutes significant, frequently commenting that Title VII interpretations should guide courts in their interpretation of Title IX. As the Eighth Circuit explained, for example, although Title VII protects against “discrimination … because of … sex” whereas Title IX protects against discrimination “on the basis of sex,” “these two phrases are treated interchangeably.” Thus, the court concluded that the “interpretation of Title VII properly informs our examination of Title IX.”
Accordingly, if the Seventh Circuit (or some other court inclined to follow the recent Title VII decision) is faced with the question of whether Title IX prohibits discrimination on the basis of sexual orientation, the implications would seem clear: the term “sex” discrimination in Title VII (according to the Seventh Circuit) includes “sexual orientation” discrimination; Title IX is interpreted like Title VII; therefore Title IX also prohibits sexual-orientation discrimination. But perhaps this inquiry isn’t quite so simple.
Not So Fast
Although courts generally look to Title VII when interpreting similar provisions in Title IX, would that principle apply even in the circumstance that some see as making a fundamental change to the statute, such as adding sexual-orientation discrimination to the ambit of protection? Although this approach is compelling in its simplicity, there are some differences that may complicate the analysis.
The first difference is how the statutes were originally enacted. Congress enacted Title VII pursuant to its power under the Constitution’s Commerce Clause, which gives Congress a large amount of authority to impose its directives. Title IX, in contrast, was enacted pursuant to Congress’s authority under the Spending Clause. While this may seem like a minor distinction, the Supreme Court has explained that because Title IX is Spending Clause legislation, Congress must give institutions sufficient notice of the conduct it decides to prohibit. In other words, Title IX operates “much in the nature of a contract: in return for federal funds, the states agree to comply with federally imposed conditions.”
Based on this distinction, institutions will likely argue they had no notice that discrimination “on the basis of sex” included sexual-orientation discrimination. This argument may also be aided, oddly enough, by a discussion in the recent Seventh Circuit case, where the majority opinion explains that, while Congress (when it enacted the statute) may not have understood the full reach of preventing discrimination based on “sex,” that fact does not prevent Title VII’s protections from expanding. While many people will disagree with that decision in any context, it is particularly difficult to transpose it to Spending Clause legislation (like Title IX) where Congress is required to speak with a “clear voice” to provide institutions with notice as to what conduct the statute proscribes.
The second difference is how the statutes were structured. Title VII is a statute designed to provide remedies to employees suffering discrimination. The statute specifically identifies judicial and administrative recourse for alleged violations. Conversely, Title IX is primarily a regulatory statute, designed to ensure that institutions receiving federal funds are compliant with Congress’s prohibitions on sex discrimination. In fact, Title IX does not expressly allow individuals to sue institutions (a “private right of action”). Rather, the Supreme Court later found that right to be implied under the language of Title IX.
These structural differences may give courts pause when determining whether to follow the Seventh Circuit’s Title VII decision and conclude that Title IX protects against sexual-orientation discrimination. To be sure, federal courts to date have largely rejected attempts to extend Title IX liability to cases of alleged sexual-orientation discrimination, though there are isolated examples of courts ruling that Title IX’s protections do encompass such allegations. For example, in Videckis v. Pepperdine University, a federal district court in California found other courts’ distinction between “gender stereotyping” claims and “sexual orientation” claims to be “illusory and artificial,” and ultimately concluded that Title IX does protect against sexual-orientation discrimination. Institutions will now need to observe analogous cases closely to see if the Seventh Circuit’s Title VII decision makes similar rulings more prevalent.
The Tip of the Iceberg
Determining whether Title IX protects against sexual-orientation discrimination will be an important and consequential decision. But answering that question also opens the door to several additional difficult and complex legal questions.
For example, it seems likely that the lion’s share of objections to any extension of Title IX to include sexual-orientation claims would be grounded in religious beliefs. Title VII contains a limited religious exemption for certain employers, taking certain actions, with respect to certain classes of employees; Title IX, in contrast, contains a broad clause that exempts institutions from Title IX if they are controlled by a religious organization and “if the application of this subsection would not be consistent with the religious tenets of such organization.” Given the broad exemption language found in Title IX, courts will likely be forced to grapple with exemptions sought under this subsection, as well as protections provided by other statutes and the Constitution.
In addition, as discussed above, Title IX is largely a regulatory statute, and its provisions are commonly carried out by the U.S. Department of Education. In an official guidance document issued in 2001 (and still in force today), the department expressly stated that Title IX does not protect against sexual-orientation discrimination. In certain circumstances when agencies issue guidance on an ambiguous statutory term, courts are required to follow any reasonable conclusion reached by the agency. If courts, therefore, are inclined to follow the Seventh Circuit’s Title VII decision, they will first have to determine how to evaluate the department’s contrary conclusion.
Finally, colleges and universities may be concerned about the potential ability for people to bring claims for violations of both Title VII and Title IX. Unfortunately, the regional federal courts of appeals are currently split on this question as well. Some courts allow claimants to proceed under both statutes; others prohibit this approach, finding that Title VII displaces Title IX when there are overlapping claims. Thus, institutions should be aware of the rule in their circuit and track relevant decisions.
The Seventh Circuit’s decision to break from its own prior cases, as well as the decisions of all other federal courts of appeals, opens up a Pandora’s box of tricky legal issues, especially for institutions of higher education. Acting in the dual role of employer and educator, the vast majority of higher education institutions find themselves subject to both Title VII and Title IX, including any potential expansion of those statutes to incorporate protections for sexual orientation. These issues seem destined for a date at the Supreme Court, which, eventually, may bring some much-needed clarity. Until then, however, institutions should diligently monitor legal developments in the federal courts to ensure they are compliant with the applicable law in their jurisdiction.
Michael T. Raupp is a lawyer in the Kansas City, Mo., office of Husch Blackwell LLP. He is a member of the firm’s higher education group and frequently practices in federal and state appellate courts.
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