Discrimination Against Faculty and Staff—Should You Pursue a Claim Under Title IX or Title VII?
| | Title IX, Title IX : Employment
While educational institutions should serve as bastions of wisdom and incubators of enlightenment, anyone who has worked as a faculty or staff member knows that they often fall far short of the ideal. In fact, sometimes, school settings are the worst at perpetuating long-standing problems such as discrimination on the basis of sex.
Federal law provides two statutory schemes employees of educational institutions can use to address a discrimination problem based on factors related to sex, such as pregnancy. So, if you have been denied a benefit, been disciplined unfairly, suffered from harassment, or been subjected to other forms of workplace discrimination at a school, what is your best option for achieving justice and gaining relief? Should you pursue a claim under Title IX or Title VII? While an attorney can provide the most complete answer and give you advice based on your particular situation, here are some factors to keep in mind.
The Laws at Issue
Title IX refers to Title IX of the Education Amendments of 1972 and the regulations, administrative guidance, and judicial interpretations associated with this anti-discrimination law. These rules prohibit any educational institution that receives federal funding from discriminating against students, faculty, or staff on the basis of sex. The scope of the protections has been enlarged a great deal over the years since the law was originally enacted. Although this law is limited to institutions that receive federal funding, as a practical matter, this includes most schools, particularly at the post-secondary level, because the acceptance of federal student loan money makes a school dependent on federal funding. A few private elementary and secondary schools and only a handful of colleges are exempt from Title IX requirements.
The other applicable statutory antidiscrimination scheme stems from Title VII of the Civil Rights Act of 1964. The statute, regulations, and interpretations associated with this law apply to employers with at least 15 regular employees in any type of setting, including academic settings. Title VII prohibits discrimination based on numerous factors, including sex. As with Title IX, the scope of protection offered by Title VII has also expanded considerably since its enactment.
The U.S. Department of Education administers and enforces Title IX, while the U.S. Department of Labor enforces Title VII.
Protections for Employees Under Title IX
Although much of the focus in the news about Title IX centers on the application of provisions to students, the law protects faculty and staff as well. Schools are not allowed to treat employees differently due to their sex or related factors. When an institution violates Title IX with respect to an employee, that employee can file a complaint with the Title IX Coordinator on campus. An aggrieved employee can also file a complaint directly with the U.S. Department of Education or file a lawsuit to obtain relief.
Examples of discrimination that can be addressed by a faculty or staff member under Title IX include:
- Denying funding for research conducted by a female faculty member because she is or could become pregnant
- Failing to provide the same amount of family leave to fathers as provided to mothers in the same circumstances
- Suggesting that a promotion or other employment benefit could be granted in exchange for sexual favors (quid pro quo harassment)
- Making suggestive jokes or gestures based on a staff member’s sex or related factors
- Allowing staff members or contractors to make jokes or post pictures that are sexually offensive
The last two examples involve sexual harassment that can violate a staff or faculty member’s Title IX rights by creating a hostile work environment.
Protections for Employees Under Title VII
Title VII has a much broader reach for employees. It covers government entities and private organizations with 15 or more employees, regardless of whether they receive federal funding. The law is also broader in that it covers more factors than those associated with sex and gender roles. Like Title IX, the protections extend to harassment and discrimination. If a practice has a discriminatory effect, it can be considered a violation of Title VII, even if there was no discriminatory intent.
Unlike with Title IX, however, there is no opportunity to file an official complaint with the institution responsible for the discriminatory action. Campuses and other employers are not required to have Title VII Coordinators to address problems immediately the way that schools are required to designate Title IX Coordinators and provide campus procedures for investigating and addressing complaints. However, employees are still expected to file a complaint with their employer if they want to protect their right to seek legal remedies. They must put their employer on notice of the discrimination. Then employees must file a complaint with the Equal Employment Opportunity Commission at the local or national level by the required deadline if they want to pursue the complaint. If the agency chooses not to act on the complaint, the employee can request permission to file a private lawsuit for relief.
Choosing the Right Option for a Discrimination Claim
When you have the option of bringing a claim under both statutes, how do you choose the one that makes the most sense in your situation? In some cases, your choice may come down to the jurisdiction where you work. Appellate courts that control outcomes in some states have ruled that employees of educational institutions must file claims under Title VII and comply with the administrative requirements of that statutory scheme. Courts in other circuits allow faculty and staff to file claims under both statutes.
If your claim is based on gender identity or sexual orientation, some judicial circuits may not allow you to pursue a claim under Title IX, so Title VII is the only option. On the other hand, when timing is an issue, Title IX might be the better choice. While there is a deadline to apply for relief under Title VII, there is no deadline to file a Title IX claim with the Department of Education. If you want to file a lawsuit under Title VII, you must obtain a letter from the Equal Employment Opportunity Commission and file your suit within 90 days of receiving permission. You have much more time to file a lawsuit based on Title IX—it generally would need to be filed within the deadline by the statute of limitations for a personal injury claim.
Nesenoff & Miltenberg Can Help You Pursue Remedies for Discrimination Under Title IX
Standing up to discrimination and harassment in an educational setting can help you protect your rights and improve conditions for other employees and students in your environment. By calling attention to the problem, you can gain relief and establish new precedents for the future.
The team at Nesenoff & Miltenberg can help you assess your options and find the best path forward after you’ve suffered from Title IX discrimination as a faculty or staff member. Schedule a confidential consultation with our dedicated Title IX attorneys today to learn more about how we can assist.