Supreme Court to deterimine if Title IX authorizes employment discrimination lawsuits

The Supreme Court is going to decide whether sex discrimination victims may sue schools and universities under Title IX, which prohibits sex discrimination in federally-funded educational institutions. This case will resolve a split in the lower federal circuits, many of which (including the Second Circuit) hold that Title IX does authorize such cases, even if you can also bring these claims under Title VII.

The case is Crowther v. Board of Regents of the University System of Georgia. The case arises in the Eleventh Circuit, which said that Title IX does not authorize such lawsuits. Title IX is a close relation to Title VII, the general employment discrimination statute that allows plaintiffs to sue for sex discrimination against their employers. But Title IX is also a sex discrimination law, though it does not expressly reference employment cases; rather, it allows you to sue educational institutions for sex discrimination, which may encompass discrimination in high school sports or college programs.

Although Title IX does not explicitly state that it prohibits employment discrimination in the educational setting, according to the certiorari petition filed in Crowther, eight Circuit Courts have interpreted Title IX to permit private claims for sex discrimination in employment. The Second Circuit is one of those circuits, ruling in Vengalattore v. Cornell Univ., 36 F.4th 87 (2d Cir. 2022), that "Title IX allows a private right of action for a university's intentional gender-based discrimination against a faculty member." Citing prior Supreme Court authority, including Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Court in Vengalattore held that it is "now well settled that . . . a private right of action is implied" for employees under Title IX. In 2022, the Sixth Circuit held in Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022), that Title IX's implied right of action is not limited to students, and can also be invoked by employees, in that case, school-contracted referees. 

As I wrote in summarizing the Vengalattore ruling four years ago:

[Title IX] 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. 

Three Circuits disagree with the Second Circuit and the other courts that permit employment discrimination cases under Title IX: the Eleventh Circuit, the Fifth Circuit, and the Seventh Circuit. But post-Jackson, the Eleventh Circuit is the only Circuit Court to hold as such; the other cases pre-date Jackson. So the Crowther case will focus on what the Supreme Court did in Jackson and what Jackson really means. The Supreme Court has a way of re-interpreting prior cases years later. The only Justice on the Jackson case who sits on the Supreme Court today is Clarence Thomas, and he dissented in Jackson. So we can't predict what will happen in Crowther.

Why sue under Title IX and not Title VII? For one thing, if you sue under Title VII, you have to file a charge of discrimination with the EEOC and then wait six months before you can file the lawsuit. Under Title IX, you can go straight to court without bothering with the EEOC, which may or may not investigate or try to mediate or do much of anything. Also, Title VII has a shorter deadline than Title IX.