Circuit holds that university employees may sue for discrimination under Title IX

The Second Circuit holds for the first time that Title IX of the Civil Rights Act of 1964 authorizes employment discrimination claims against private universities. This interpretation allows the Court to find that a former Cornell University professor may proceed with his sex discrimination claim arising from a failed sexual abuse investigation that damaged his professional reputation.

The case is Vengalattore v. Cornell University, issued on June 2. Plaintiff was a physics professor who was up for tenure when he hired a graduate student ("Jane Doe") as a lab assistant. The complaint alleges that, as plaintiff sought tenure, Doe tried to scuttle that effort by falsely claiming that she and plaintiff had a consensual sexual relationship and that he had raped her. The University denied plaintiff tenure and concluded following its investigation that he did not rape Doe but that they had had a consensual sexual relationship. This lawsuit does not challenge the tenure denial but, instead, the discriminatory investigation whose findings damaged his reputation.

As summarized by Judge Cabranes in his concurring opinion, "[plaintiff's] allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell's investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances." The Court of Appeals (Kearse, Cabranes and Pooler) also notes that plaintiff alleges that he was told that "the faculty had considered Roe's accusations to have been false and malicious, but also said that the faculty would take no action, saying, `Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don't want that.'"

First, the Title IX angle. That statute prohibits gender discrimination in private educational settings. This statute is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases.

Having cleared that hurdle, the Court finds that plaintiff may pursue his sex discrimination claim in discovery. The Court holds that plaintiff plausibly asserts that the University violated its own procedural rules in finding against plaintiff in the sexual relationship investigation, and the investigation itself was devoid of due process; for example, plaintiff had one days' notice to respond to Doe's allegations, without a written statement of charges of an identification of the complainant, and it was only after the investigators interviewed plaintiff for several hours that they told him about the rape allegation. Plaintiff was also denied counsel at this time. Nor did investigators speak to plaintiff's witnesses. The report issued by the investigators determined that the lack of evidence of a sexual relationship "actually supported Roe's allegations" that such a relationship existed, as "common sense experience is that secretive relationships carried out by faculty members and students can be carried out without others . . . become aware." In addition, plaintiff alleges that Cornell reached the conclusion that it did to "favor the accusing female over the accused male in order to demonstrate its commitment to protecting female students from male sexual assailants."