Eleventh Circuit Narrows Scope of Employee Title IX Claims

Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that Title IX of the Education Amendments of 1972 does not provide an implied right of action for sex discrimination in employment. This decision deepens an existing split among circuit courts.

This issue came before the Eleventh Circuit on a consolidated appeal of two claims. The first was a lawsuit brought by an art professor at Augusta University who was found responsible for sexual harassment under the school’s Title IX policy. As a result of the finding, the professor was suspended from teaching for one semester. The professor fulfilled his sanction and returned to the school but claimed that he was treated differently by his supervisor upon his return and that the university later refused to renew his contract. The professor sued the Board of Regents of the University System of Georgia and several officials for sex discrimination and retaliation under Title IX. The district court dismissed the claims against the school officials but denied the motion to dismiss the Title IX claims against the board. The board sought an interlocutory appeal.

The second lawsuit involved a women’s basketball coach at the Georgia Institute of Technology, who lodged numerous complaints about the superior resources provided to the school’s men’s basketball team. However, as the coach continued to complain, other unrelated issues with her performance arose. For example, the coach was reported to have created a “toxic” environment for her team. Georgia Tech investigated the allegations and found that nearly every player “expressed concerns regarding player emotional and/or mental well-being.” Because of that, Georgia Tech fired the coach, who then sued the board of regents, the Georgia Tech Athletic Association, and several individuals for violations of Title IX, Title VII, and Georgia’s whistleblower statute. The court dismissed the coach’s Title IX claims as precluded by Title VII. The coach appealed.

Upon review, the Eleventh Circuit gutted both lawsuits, holding that there is no private right of action under Title IX for sex discrimination in employment. In so holding, the court reasoned that “[i]t is unlikely that Congress intended Title VII’s express private right of action and Title IX’s implied right of action to provide overlapping remedies.” This is particularly true because Title VII contains a “complex” and “express remedial scheme” that requires an employee to first file a claim of discrimination with an administrative agency. Title IX, on the other hand, has no such requirement, meaning that a Title IX plaintiff would be unburdened of Title VII’s administrative procedures and would also have a longer time period within which to bring such a claim. The court also pointed out that Title IX’s protections were designed with students in mind, not employees.

With respect to retaliation claims under Title IX, the court held that there is no private right of action available to employees who are accused of discrimination or who participate in investigations of their own alleged misconduct. That being said, the court acknowledged that the result could be different if an employee brought a Title IX retaliation claim based on the employee’s opposition to discrimination.

The Eleventh Circuit’s decision is in direct conflict with the Second Circuit’s 2022 decision in Vengalattore v. Cornell University, which held that Title IX does afford a private right of action to bring employment discrimination claims based on gender. This issue is one of many in the Title IX legal landscape that is currently in flux. Schools should continue to consult their legal counsel regarding any claims of sex-based discrimination and harassment.