Protecting Your Rights Against Retaliation Due to a Title IX Complaint

• Case Results
• Testimonials
• List of Schools

Title IX is a complicated law with provisions that protect students and employees of federally-funded schools from sex discrimination, sexual harassment, and sexual assault. If these kinds of misconduct occur at a K-12 school, college, or university that receives any federal funds, the victim of the misconduct has the right to file a complaint regarding the conduct. Although lodging a complaint is a protected right, many people who do so find themselves facing adverse reactions from the institution or other parties involved in the complaint.

Fortunately, Title IX also prohibits a school or party to a complaint from retaliating against anyone involved in an investigation, complaint, or proceeding. Parties on both sides of a complaint, as well as involved teachers and coaches, are protected from retaliation. Unlawful retaliation occurs when the following are true:

• A party engaged in protected activity
• Another party took adverse action against them
• The cause of the adverse action was the protected activity

While most schools strive to prevent retaliation, sometimes the school administration is the retaliating party. If you believe that you have suffered unlawful retaliation for your participation in a Title IX complaint or proceeding at your institution, you should seek legal advice from a knowledgeable Title IX attorney as soon as possible.

Retaliation by Other Students

When two students are on opposite sides of a Title IX sexual misconduct allegation, it should be no surprise that they may have ill feelings toward one another. However, schools are required to take proper measures to protect each student from any form of retaliation by the other. First, the prohibition against retaliation should be clearly stated in each school’s sexual misconduct handbook. This policy should make it clear that Title IX prohibits any retaliation against anyone involved in a Title IX complaint.

Retaliation can take many forms between two students and determining whether retaliation occurred is a very fact-specific matter. If you’ve been accused of retaliation or believe someone else has retaliated against you, our legal team can evaluate what happened and advise whether you may have a Title IX retaliation claim.

Retaliation claims may be especially common when the school has issued a no-contact order between the students. If the students were acquaintances or friends and an allegation arises, the accused student may try to talk to the complainant to explain or clarify what happened or even to apologize. Even if the student may have been trying to reconcile, violation of a no-contact order is often considered to be a form of retaliation under Title IX and the school’s policies. In this situation, something as simple as saying hello to someone could result in a retaliation claim.

Students accused of retaliation may face an additional disciplinary charge and possible sanctions under their school’s handbook. For this reason, it is important for students to always obey no-contact orders and for schools to take proper measures to prevent retaliation whenever possible. If a school allows retaliation to occur, the victim could then have a separate Title IX claim against the school.

Retaliation by Institutions

Students are not the only parties who may be accused of unlawful retaliation under Title IX. Institutions may not engage in any form of retaliation against students, teachers, coaches, or other employees who are involved in a claim. For example, if a student complains about the unequal treatment of male and female athletes, the school cannot then exclude that student from the athletic team in retaliation for the complaint. If a student complains of sexual assault, the school may not retaliate by enacting harsh interim measures against the complainant, such as a much less desirable schedule or housing, or excluding them from activities.

Retaliation by a school is particularly common against employees who complain of Title IX violations. If a teacher reports sexual harassment or assault, whether it involves the teacher or a student on campus, the school may not then take adverse action against the teacher for making the report. Adverse action can take many forms, including:

• Refusing a promotion
• Refusing to grant tenure
• Refusing a pay increase
• Suspension
• Demotion
• Transfer to a less desirable position or department
• Termination

Retaliation can even involve harassment or mistreatment by supervisors, such as within an athletic department. Title IX prohibits any type of adverse action against school employees in response to the employee exercising their rights under the law. Employees can bring retaliation claims against institutions just like students can.

Handling Complex Retaliation Claims

Retaliation claims may be difficult and complex, as schools or students will rarely freely admit that they acted in retaliation. Instead, a pretextual reason may be offered for the adverse treatment. If a student is kicked off a sports team, the coach may claim it was due to poor performance or lack of sportsmanship when, in reality, it was a response to a Title IX complaint. If a professor is refused tenure, the school may claim it was based on lack of merit when it was actually retaliation for complaining of sexual harassment in the department.

Victims of retaliation often have much to lose, including their jobs and their educational opportunities. If you are concerned that you may experience, or have already experienced, retaliation because of involvement in a Title IX complaint, you need the right Title IX attorney on your side every step of the way.

Wrongful Firing and Retaliation Claims

In Title IX matters, much of the focus is on students’ rights and opportunities on campus. However, Title IX also protects faculty, staff, and professors from prohibited actions, and that includes unlawful retaliation. Wrongful firing and other retaliatory actions could provide grounds for a claim under Title IX.

Wrongful Retaliation in the Employment Context

Retaliation that violates Title IX laws and regulations often looks different in employment situations. An institution may take overt actions such as firing an employee who filed a Title IX complaint. In many cases, however, unlawful retaliation is more subtle. Any adverse action made to retaliate against an employee who complained, filed a claim or supported a Title IX investigation can give the injured employee the right to seek redress under Title IX. These actions could include:

• Termination of employment
• Removal from board or committee positions
• Reassignment to less desirable duties or locations
• Denial of a promotion or tenure
• Denying opportunities provided to employees similarly situated
• Unreasonable poor performance reviews

Potentially, any action that inconveniences an employee could be considered retaliatory. The challenge is to prove that the action was taken in retaliation for Title IX action. School administrators are not likely to willingly admit they acted in retaliation. They are likely to provide other reasons for firing or disciplining an employee or taking other adverse actions.

In some cases, when an employee can show that the condition used as grounds for the disciplinary action existed for some time but was only acted on after the Title IX case, that can be persuasive evidence of retaliation. For instance, if the school claims a faculty member was terminated for issuing too many failing grades to students but the passage rate had not changed in ten years, then it can be easy to believe that something else led to the termination.

It is crucial to locate evidence to connect the adverse action to the Title IX claim. Direct evidence of retaliation is wonderful to have but very difficult to obtain. Finding a document or witness who heard a supervisor say they were firing an employee because they were unhappy with their complaints about Title IX violations would provide great support to a claim. Because it is so rare, however, courts are prepared to accept circumstantial evidence of retaliation.

Remedies for Wrongful Termination Under Title IX

If you file a lawsuit against the educational institution for wrongful termination or another form of retaliation, you may be eligible to seek compensation and other forms of relief. You might be entitled to recover lost wages, including interruptions in salary while searching for a new position and losses due to taking a pay cut at a new job.

You could also potentially receive punitive damages. Retaliatory actions against an employee are deliberate acts of wrongdoing that violate public policy. Punitive damages are awarded to warn and deter others in the same situation from acting in a similar fashion. Your attorney may be able to persuade the judge that the retaliatory actions taken against you were so egregious that punitive damages are warranted.

Finally, you may be eligible for specific equitable forms of relief. This could include being reinstated to your job or a similar (or better) position. If the retaliatory measures were less drastic than termination, you might receive a promotion or other opportunities that had been denied by the institution earlier. The remedies, like the process of proving retaliation, generally hinge on the facts of the case itself. 

Our Experienced Title IX Retaliation Attorneys Are Here to Help

At Nesenoff & Miltenberg, LLP, we are committed to protecting your rights under Title IX, including the right to be free from unlawful retaliation. We can represent clients in their underlying Title IX complaints, as well as any additional retaliation claims that may arise. Our highly knowledgeable lawyers have extensive experience handling Title IX and college misconduct cases and we understand the procedures and requirements involved in ensuring successful resolution.

If you think you’ve been a victim of retaliation or that your rights under Title IX were violated in another way, please do not wait to call our office at 212-736-4500 or contact us online today.