On November 7, 2024, the United States Court of Appeals for the Eleventh Circuit found, in the case of Joseph v. Board of Regents of the University System of Georgia, that Title IX does not provide an implied right of action for sex discrimination in employment. In addition to the obvious implications for litigants in the Eleventh Circuit, this decision deepens an existing circuit split on this issue, potentially dialing up the pressure on the United States Supreme Court to weigh in with a more definitive ruling.
What you need to know:
- The Circuit Court was asked to consider whether the plaintiffs, both former university employees, could pursue discrimination and retaliation claims under Title IX, or whether such claims must be brought under Title VII and applicable state law.
- The Court found that although Title IX protects both employees and students, and although there is an implied private right of action for students under Title IX, there is no general private right of action for employees under Title IX.
- Other than in some limited circumstances, the appropriate remedy for employees who experience sex discrimination or harassment, or related retaliation, is Title VII and applicable state law, not Title IX.
Factual Background: Two University Employees Bring Discrimination and Retaliation Claims
The Eleventh Circuit decision addressed lawsuits brought by two former university employees, Thomas Crowther, formerly a professor at Augusta University, and MaChelle Joseph, formerly a women’s basketball coach at the Georgia Institute of Technology.
Crowther had been accused of sexual harassment by several students and, during the pendency of an internal investigation, received a negative performance evaluation from his department chair, who also attempted to negotiate his resignation. The internal harassment investigation found Crowther in violation of university policy. Crowther appealed unsuccessfully and he was suspended for one semester. He was also reassigned to “remedial” duties and his contract was not renewed for the next academic year. His Title IX claims of sex discrimination and retaliation (predicated on him opposing the charges of discrimination against him) were dismissed by the trial court, which found that Title VII precludes claims for sex discrimination in employment brought under Title IX.
Joseph, who had been Georgia Tech’s longtime head women’s basketball coach, had allegedly complained for many years that the men’s basketball program consistently received more money and resources than the women’s program in terms of facilities, marketing, salaries, and other crucial program components. After she was accused of numerous acts of alleged misconduct – appearing intoxicated at a Georgia Tech football game, paying impermissible benefits to recruits, and bullying colleagues and students – she brought a complaint of discrimination and retaliation under Title IX, Title VII, and Georgia’s whistleblower law. The university won summary judgment and Joseph appealed. Her case was consolidated for purposes of appeal with Crowther’s.
Eleventh Circuit Opinion: No Private Right of Action for Employees Under Title IX
The Eleventh Circuit concluded that “Title IX does not provide Crowther or Joseph a private right of action for sex discrimination in employment.” The Court observed that an express or implied private right of action to enforce federal law must be created by Congress; as such, the Court must determine whether Congress attempted to craft not just a right, but a specific remedy.
As a law passed by Congress under the Spending Clause, Title IX’s express remedial scheme provides for the withdrawal of federal funding in the event of a violation. As the Court observed, however, the United States Supreme Court has also determined that Title IX provides an implied private right of action for students who complain of sex discrimination. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979). The Supreme Court has also found an implied private right of action for employees engaging in protected activity in connection with complaints about discrimination against students, see Jackson v. Birmingham Board of Education, 544 U.S. 167, 171 (2005), and has also found that Title IX prohibits discrimination against employees in addition to students. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982).
The Eleventh Circuit observed that the Supreme Court “has never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions” (emphasis added). The Court then determined that as to that open question, there was no such right. The Court rested its decision on two primary factors.
First, the Court concluded that nothing in the actual text of Title IX, which refers to discrimination against participants in “any education program or activity,” explicitly “indicates congressional intent to provide a private right of action to employees of educational institutions.”
Second, the Court noted that Title IX, which extended Title VI’s protections against discrimination in federally funded programs to include sex in addition to race, color, and national origin, was passed within three months of the Equal Employment Opportunity act of 1972, which extended Title VII’s prohibition of employment discrimination to employees of educational institutions. The Court concluded that this proximity showed that Congress intended to “create a comprehensive antidiscrimination remedial scheme” for students and employees, and to “accomplish these goals through different remedies.”
The Court also took care to address Crowther’s retaliation claim, holding that “Title IX does not provide Crowther a right of action for retaliation where he did not oppose an underlying violation.” The Court distinguished Crowther’s claim from Jackson, in which the plaintiff employee (like Joseph, a basketball coach) had brought a retaliation claim after experiencing adverse employee actions for engaging in the protected activity of opposing discrimination against female students in the allocation of athletics resources. In Joseph, the Court found that Crowther’s allegation of retaliation for opposing charges of discrimination against himself “bears none of the features of the Jackson implied right of action: it does not protect students, and it does not encourage reporters to come forward.”
Impact of the Court’s Ruling
The Court affirmed the dismissal of Crowther’s claims and the grant of summary judgment against Joseph (who, in addition to the preclusion of her Title IX claims by her Title VII claims, had been found unable to rebut her former employer’s proffered legitimate non-discriminatory reason for her discharge, or show a causal connection between her separation and her protected activity).
This ruling will impact other employee litigants within the Eleventh Circuit, who now must exclusively plead sex discrimination claims under Title VII and any applicable state law. This means that litigants will be required to exhaust administrative remedies prior to bringing suit, and will be tied to the filing timelines of enforcement agencies, typically 180 days. This adds a layer of burden for plaintiffs, and cuts off their ability to benefit from the potentially broader limitations period associated with Title IX claims (which, as the statute contains no explicit limitations period, is typically found to be co-extensive with a state’s personal injury statute of limitations and may be several years long). Plaintiffs will also be limited by statutory caps on damages in Title VII cases.
The case does not address all open questions even within the Eleventh Circuit, including the perennial issue of how to treat students who are also employees, or employees who are also students. And, it deepens the ongoing circuit split on this issue, with the Eleventh Circuit now joining the Courts of Appeal for the Fifth and Seventh Circuits in finding no private employment right of action under Title IX, and the First, Third, Fourth, Sixth, and Eighth Circuits holding that Title IX claims are not precluded by Title VII. This potentially dials up the pressure on the United States Supreme Court to weigh in with a more definitive ruling on the issue.
There are also potentially implications for employees who seek to bring claims of discrimination, harassment, or retaliation based on race, color, or national origin under Title VI. The Court’s ruling was limited to Title IX, and there are some factors distinguishing Title VI from Title IX in line with the Court’s reasoning. For example, the argument based in the temporal proximity of the enactment of Title IX with the enactment of revisions to the Civil Rights Act is less applicable in the Title VI context. However, the same general principles undergirding the Court’s reasoning would suggest that such claims would also be required to be brought under Title VII and state law, with the same limitations.
The Higher Education Industry Group at Saul Ewing will continue to monitor this complex and evolving area of the law. Please do not hesitate to contact either of the authors or your regular Saul Ewing point of contact with any questions about the substance of this alert.
