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No Private Right of Action for Sex Discrimination in Employment Under Title IX

On November 7, 2024, the United States Court of Appeals for the Eleventh Circuit heard the case of Joseph v. Board of Regents of the University System of Georgia. In that case, the court heard two consolidated appeals regarding employee complaints of discrimination and retaliation against the University System of Georgia.

The first appeal was based on the following set of facts: Augusta University (“the University”) conducted an investigation against Professor Thomas Crowther (“Crowther”) based on several student complaints which claimed Crowther had sexually harassed the students. After the investigation, the University found that Crowther had violated its sexual harassment policy, and the University suspended his employment for one semester. The University subsequently refused to renew Crowther’s contract for the next year. Crowther sued the University System under Title IX, claiming sex discrimination and retaliation. He requested both damages and injunctive relief.

The second appeal centered around the actions of MaChelle Joseph (“Joseph”), who served as the head women’s basketball coach at Georgia Tech for over a decade. During her time at the University, Joseph raised several concerns regarding the disparity in resources allocated to the men’s basketball team compared to the women’s basketball team. Joseph was later accused of numerous acts of misconduct such as appearing intoxicated at a home football game, bullying team staff and players, and paying impermissible benefits to recruits. The investigation into these  allegations found that Joseph did not engage in acceptable behavior as set forth under the University’s Ethics Policy. The University subsequently fired Joseph, and she sued the Board of Regents, the Georgia Tech Athletic Association, and several private individuals alleging sex discrimination and retaliation under Title IX and Title VII. She also raised claims of retaliation under the Georgia Whistleblower Act.

Both Crowther and Joseph were unsuccessful in their lawsuits, and they individually appealed their decisions to the U.S. Court of Appeals for the Eleventh Circuit. The court considered these two cases together to answer the question of whether Title IX provides an implied right of action for sex discrimination in employment. The court held that it does not based on the following rationale.

In general, private rights of action to enforce federal law must be created by Congress.[1]  When Congress does not provide an express right of action, the court then examines the statute to determine whether it displays an intent to create both a private right and private remedy for individuals. Here, Congress enacted Title IX under the Spending Clause, which provided an express remedial scheme for withdrawing funding to federal institutions. The U.S. Supreme Court has stated that an inclusion of a funding-based remedial scheme cautions against construing the statute to create other remedies. Nevertheless, the U.S. Supreme Court has held that Title IX provides an implied right of action for students who complain of sex discrimination by schools that receive federal funds.[2] In addition, the Supreme Court has held that Title IX provides a private right of action for retaliation for an employee’s complaint about discrimination against students.[3]  However, the Supreme Court has not extended the implied right of action under Title IX to claims of sex discrimination at educational institutions. To determine whether Congress intended to create an implied right of action for employment discrimination, the Court examined the statutory text and context of Title IX.

First, the Court concluded that nothing in the actual text of Title IX indicated a congressional intent to provide a private right of action to employees of education institutions. Second, the Court considered that Title IX was enacted as part of a series of other antidiscrimination statutes. Title VII was first extended to prohibit employment discrimination in education institutions, and Title IX extended Title VII’s protections against discrimination in federally funded programs to cover sex discrimination in educational institutions. The Court explained that the two statutes work in tandem, as Title VII and Title IX were both enacted to create a comprehensive antidiscrimination remedial scheme. The court stated, “[w]hereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on protecting individuals from discriminatory practices carried out by recipients of federal funds.” (Emphasis in original)  The two statutes accomplish these goals through different remedies. Title VII creates an administrative process that requires claimants to first file a charge of employment discrimination with the Equal Employment Opportunity Commission and obtain a right to sue letter prior to filing a complaint in federal court. Title IX, on the other hand, allows administrative agencies to condition federal funding on compliance with its anti-discriminate mandate. Due to the complexity of Title VII’s express remedial scheme, the Court determined it would be inconsistent to conclude that the implied right of action under Title IX would allow employees of educational institutions immediate access to judicial remedies without first pursuing administrative procedures. Therefore, the Court concluded that it is unlikely Congress intended Title VII’s express private right of action and Title IX’s implied right of action to provide overlapping remedies. In sum, the court held that Title IX does not create an implied right of action for sex discrimination in employment.

Retaliation Under Title IX

In addition, the Eleventh Circuit held that Title IX does not provide a right of action for an individual on the basis of retaliation where the individual did not oppose an underlying violation. Crowther tried to analogize his situation to another federal case, Jackson v. Birmingham Board of Education, 544 U.S. 167, 171 (2005), where the court held that Title IX provided a private right of action for retaliation for an employee’s complaint about discrimination against students. The plaintiff in Jackson alleged retaliation after experiencing adverse employee actions for opposing discrimination against female students. The Court distinguished Crowther’s circumstances from Jackson, stating Jackson did not contemplate protections for an accused discriminator who participated in a Title IX investigation of his own conduct. Crowther’s claim, as the Court described, was unlike Jackson’s claim, because Crowther sought to protect only his participation in the Title IX investigation of complaints against him, not his reporting of other violations.

The holdings in this case are important because this case provides some protection for Educational Institutions from a barrage of suits that would be created by an implied right of action for sex discrimination in employment. This case further supported the notion that an individual who does not oppose an underlying Title IX violation does not have a private right of action for retaliation.

Should you have any questions concerning the topic of this Alert and how it relates to your ongoing Title IX investigations, please do not hesitate to contact the authors or your usual legal counsel at AALRR for guidance.

Thank you to Samantha Fidel (SCELPG Law Clerk) for her work on this blog. 

[1] Alexander v. Sand-oval, 532 U.S. 275, 286 (2001).

[2] See Cannon v. University of Chicago, 441 U.S. 677 (1979).

[3] See Jackson v. Birmingham Board of Education, 544 U.S. 167, 171 (2005).

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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