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Title IX & Student Conduct Code Blog

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How Do Title IX and Title VII Overlap?

Both Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 provide measures for protecting employees on campuses from discrimination and harassment on the basis of sex. Both are also federal laws. But with frequent changes in regulations and judicial rulings interpreting the statutes, it can be challenging to understand where these laws differ and where they overlap.

Faculty and staff of educational institutions who are seeking to enforce their rights should be sure to work with an attorney who understands all of the applicable laws and how to put them to best use to achieve their clients’ objectives. In some areas, particularly with regard to substantive issues, courts have accepted the overlap of standards between the two laws. But in other areas, the application of one set of standards seems to be open to debate and interpretation. Skilled legal arguments could prove to be the deciding factor in many cases while the issues remain unsettled.

Title IX Protections for Employees

Most of the time, people think of Title IX in connection with student activity, particularly sexual assault. However, the provisions of Title IX also offer protection against sex discrimination and harassment for employees of colleges, universities, and other educational institutions. 

In fact, Title IX protects employees who work for educational activities and programs even when those programs are not sponsored by an educational institution. This means the protections apply to those hired as interns or working in hospitals or academic medical centers. Employees as well as students have the right to file a lawsuit to recover damages for Title IX violations. Title IX applies to any educational programs and activities that receive federal funding in any form, including federal student loans.

Title VII Protections  

Title VII prohibits discrimination on the basis of certain protected factors in many employment settings. The prohibitions apply to government organizations, educational institutions, and any private employer with 15 or more employees.

Sex is one of several protected factors enumerated in the statute and by extension in regulations and judicial rulings. Under current interpretations, “sex” also includes pregnancy, sexual orientation, and gender identity

Discrimination is defined to include a wide range of actions. According to the Justice Department, Title VII outlaws not only acts of intentional discrimination but also any practice that effectively has a discriminatory effect. Discrimination includes making decisions based on stereotypes or assumptions, harassment, and denial of employment opportunities based on marriage or relationship status.

Title VII is broader than Title IX in the way that it covers discrimination over a range of factors beyond sex and covers employment beyond what is connected to educational opportunities.

Where the Protections Apply for Employees

Discrimination is prohibited in a wide range of employment activities under both Title VII and Title IX. These include decisions regarding:

  • Hiring and recruitment
  • Termination
  • Compensation and employee classification
  • Layoffs
  • Transfers
  • Promotions
  • Training and apprenticeships
  • Benefits and retirement plans
  • Use of company facilities

Essentially any condition or privilege of employment must be offered equally without preference based on sex or other protected factors.

Overlapping Substantive Standards

Up to this point, courts have generally applied the same substantive standards and policies used with Title VII cases to employment actions filed under Title IX. The federal government has expressed a belief that it is also appropriate to use the Title VII substantive standards in administrative settings.

That means that when investigating a case of alleged employment discrimination, agencies should look to Title VII case law and applicable guidelines from the Equal Employment Opportunity Commission (EEOC) even if the case is brought under Title IX.

For instance, when the U.S. Supreme Court ruled that the definition of “sex” in Title VII also includes sexual orientation and gender identity, that opened the door to allegations of Title IX discrimination on the basis of gender identity and sexual orientation.

Sexual Harassment

The Title VII interpretations regarding when sexual harassment violates the sexual discrimination provisions may be particularly relevant in employment discrimination cases. According to the EEOC, harassment includes not only unwelcome sexual advances and harassment of a “sexual nature” but also “offensive remarks about a person’s sex.” By way of example, the Commission announces that making “offensive comments about women in general” would constitute illegal harassment.

Is one such comment enough to break the law? At this point, the EEOC says “simple teasing,” “offhand comments,” and “isolated incidents” do not make the harassment severe enough to violate Title VII. It crosses the legal line when it becomes “so frequent or severe that it creates a hostile or offensive work environment” or when the harassment leads to an unfavorable employment outcome.

Under the Supreme Court’s standard, Title VII sexual harassment claims focus primarily on whether conduct is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”

Other Types of Discrimination

Of course, Title VII protections against discrimination on the basis of sex cover far more than sexual harassment. The EEOC explains that Title VII prohibits employers from treating anyone “differently” or “less favorably” because of:

  • Pregnancy or medical conditions related to pregnancy or childbirth
  • Sexual orientation
  • Gender identity
  • Stereotypes associated with gender

Presumably, if Title VII standards are applied to Title IX cases, employees in scholastic settings should be able to file Title IX claims in a wide variety of situations and the courts would apply Title VII precedent to determine whether wrongdoing occurred. Both prospective and current employees are subject to Title VII employment rules, but it is not clear whether Title IX rules apply to applicants for federally funded educational programs.

Look to Title VII for Definitions and Examples of Discrimination

When discussing the overlap between Title VII and Title IX, the U.S. Department of Justice has quoted a 1996 federal court decision as the general standard. In that case, the judge held that when an employee brings a Title IX claim for discrimination “the method of evaluating Title IX gender discrimination claims is the same as those in a Title VII case.”

Overall, the substantive standards for sexual discrimination currently overlap to the point where they can be considered identical. However, the same cannot be said for procedural standards.

Procedural Standards

Courts seem to be divided when addressing the question of whether the procedural requirements of Title VII apply to claims of employment discrimination filed under Title IX. Some courts have held that Title IX cases are independent and not subject to the administrative remedy obligations, filing deadlines, and state referral requirements that apply to Title VII claims, even though the cases are still decided under Title VII substantive standards. 

Some courts disagree with this assessment and hold that Title VII preempts Title IX in these types of cases, which means that Title VII procedural requirements must be followed. In the absence of a Supreme Court ruling, the applicability of Title VII procedural requirements in Title IX cases may be dependent on the jurisdiction where the case is brought.

There is also confusion about whether allegations of Title VII violations are subject to the Title IX Final Rule grievance process. The Final Rule requires secondary schools to take responsive action when any employee is put on notice of sexual harassment.

Individuals filing a private lawsuit in court may be entitled to proceed under either Title VII or Title IX. When administrative agencies are investigating allegations of discrimination, however, they are bound under the procedural requirements set forth by the Department of Justice.

Calls to Use Title IX Procedures to Help Establish Policies for Title VII Compliance

Just as those handling Title IX cases look to Title VII rulings for substantive definitions, activists are calling for companies to use the Title IX procedures of educational institutions to help formulate better policies for preventing and investigating Title VII sexual harassment and discrimination situations. They suggest that employers covered by Title VII can look to colleges and universities to learn how to better establish policies for identifying and preventing harassment. Additionally, they say employers could learn from schools’ experiences investigating misconduct claims and taking action against those who violate policies or laws.

Work With an Attorney Who Understands Title VII and Title IX

The bottom line is that when an employee wants to file a claim for sex-based discrimination under either Title VII or Title IX, they should work with legal counsel who is well versed in both these statutes. Understanding the interplay between the two can be critical to finding the best procedural options and obtaining the optimal outcome.

At Duffy Law LLC, we work with all facets of Title IX law to obtain justice for our clients, and that includes using other federal and state laws in conjunction with Title IX when appropriate. We firmly believe everyone, whether complainant or respondent, is entitled to equal justice on campus and in the courtroom. To schedule a confidential consultation about an issue of concern, contact us today.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.