The U.S. Supreme Court Permits Claims Under Title IX for Retaliation Against Employee Based On Complaints of Sex Discrimination

April 4, 2005

In a 5-4 decision, the U.S. Supreme Court recently held in Jackson v. Birmingham Board of Education that Title IX’s private right of action encompasses claims of retaliation against an individual that complained about sex discrimination. Roderick Jackson (“Jackson”), a teacher and girls basketball coach in the Birmingham, Alabama Public Schools, complained to his supervisors about the unequal treatment of the girls basketball team. Jackson’s complaints went unanswered and the school failed to remedy the apparent disparity in funding, equipment or facilities in comparison with that of other boys programs. Instead Jackson began to receive negative work evaluations and ultimately was removed as the girl’s coach. After the Birmingham Board of Education (the “Board”) terminated Jackson’s coaching duties, he filed suit in the U.S. District Court for the Northern District of Alabama. He alleged, among other things, that the Board violated Title IX by retaliating against him for protesting the discrimination against the girl’s basketball team.
Title IX prohibits sex discrimination by recipients of federal education funding. The statute provides that “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.” 20 U.S.C. 1681(a). In this case, the Court found that where a School retaliates against a person because they complain of sex discrimination, the School has intentionally discriminated on the basis of sex in violation of Title IX.
The Board argued that Title IX’s private right of action based on sex discrimination does not encompass a right of action for retaliation. The Board argued, unsuccessfully, that Jackson was not “discriminated” against on the basis of sex because he was not a member of the girls basketball team, and therefore was not discriminated against due to his sex. The Supreme Court found this argument unpersuasive, and noted that Title IX is broadly worded and does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. Jackson was a victim of discriminatory retaliation, regardless of whether he was a female basketball player.
Writing for the majority, Justice O’Connor offered rationale to justify the majority ruling in favor of Jackson. O’Connor reasoned that Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also to provide individual citizens effective protection against those practices. This objective would be difficult, if not impossible, to achieve if persons who complained about sex discrimination did not have effective protection against retaliation. If retaliation were not prohibited, Title IX’s enforcement scheme would unravel. Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Without protection from retaliation, individuals who witness discrimination would likely not report it, and the underlying discrimination would go unremedied. Moreover, teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.
Justice Thomas wrote the dissenting opinion, and argued that claim for retaliation is not a claim of discrimination on the basis of sex, and therefore is not within the textual parameters of Title IX. Thomas argued that where a statute evidences no intent to create a right for the plaintiff, the Court should not imply a cause of action. In order for the Court to act, Congress should speak unambiguously in imposing conditions on funding recipients through its spending power. In such circumstances, Congress’ intent to legislate should be clear. There is no dispute that Title IX fails to clearly include language that grants a cause of action for retaliation claims. Thomas reviewed other discrimination statutes, and found that Title IX does not expressly prohibit retaliation, while other discrimination statutes do explicitly. Thomas disputed the majority’s reasoning used to reach its result, and argued that the question before the Court was only whether Title IX prohibits retaliation, not whether prohibiting it is good policy. Moreover, while not a part of Thomas’ dissent, it can be argued that Jackson had a claim under the First and Fourteenth Amendments for exercising his free speech rights on a matter of public concern, and therefore, the Court had no reason to expand the text of Title IX.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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