On November 7, 2024, in a consolidated opinion addressing appeals in Joseph v. Board of Regents¹ and Crowther v. Board of Regents,² the U.S. Court of Appeals for the Eleventh Circuit held that Title IX of the Education Amendments of 1972 does not provide an implied private right of action for sex discrimination in employment and that Title VII of the Civil Rights Act of 1964 is the exclusive remedy for employment discrimination claims in educational institutions.³ The Eleventh Circuit also explained the scope of protected activity under Title IX and what constitutes associational discrimination under Title VII.

Background

The consolidated appeals involved two distinct cases against the board of regents of a state university system. The first case came about when several students filed internal sexual harassment complaints in the spring of 2020 against a long-standing university professor. Following these allegations, the professor was investigated and suspended for violating the university’s sexual harassment policy. The professor appealed this decision. Before his appeal concluded, however, the interim dean reassigned the professor to remedial tasks and ultimately declined to renew his contract for the 2021-2022 academic year, prompting the professor’s lawsuit alleging sex discrimination and retaliation under Title IX.

The second case involved a women’s head basketball coach. Throughout her tenure, the coach raised concerns about resource disparities between men’s and women’s basketball programs. In November 2018, the coach alleged retaliation for her advocacy of gender equity in athletics.

In early 2019, following complaints from players and staff about the coach’s conduct, the university launched an investigation into the women’s basketball program. The investigation revealed widespread concerns about player mistreatment, and the coach was discharged in March 2019. The coach subsequently filed suit against the board of regents and the university’s athletic association, alleging claims under Title IX and Title VII. Her claims included sex discrimination based on her gender, her association with the women’s basketball team, and retaliation. 

Opinion

The court first tackled the issue of whether Title IX provides a private right of action to employees of educational facilities who believe they have been subjected to employment discrimination.  In concluding that no such private right of action exists under Title IX, the Eleventh Circuit reasoned that there is no indication that, in enacting Title IX, Congress intended to create a private right of action for employment discrimination. Further, Congress enacted Title IX under the Spending Clause. The Spending Clause requires clear notice to funding recipients about potential liabilities, including claims of employment discrimination. The court found it “dubious” that recipients would understand they accepted liability for employment discrimination under Title IX when such claims are expressly covered under Title VII.

Next, the court addressed whether the professor’s participation in the Title IX investigation of complaints against him could qualify as protected activity under Title IX’s retaliation provisions. The court distinguished this from the type of protected activity recognized in Jackson v. Birmingham, where a coach was protected for reporting discrimination against students. The Eleventh Circuit held that Title IX retaliation claims protect people who report Title IX violations against students only, not those who participate in investigations of their own alleged misconduct.

Finally, the court held that “associational discrimination” under Title VII requires discrimination based on the employee’s own protected characteristics, and not the characteristics of others. That is, the court found that because the coach’s case focused on her association with the female basketball team and did not offer evidence that her own gender was the but-for cause of any disparate treatment, her claim failed. In so holding, the court distinguished the facts in this case from several other cases, including Parr v. Woodmen of the World Life Insurance, Co.⁴ In Parr, a white male alleged a company refused to hire him because of his marriage to a Black woman. Parr’s associational discrimination claim did not fail because “where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”⁵ While “claims based on interracial association necessarily implicate the race of both the complainant and the associate,”⁶ the coach’s associational discrimination claim was in no way tied to her own gender—it was tied only to her association with the women’s basketball team.

Impact on Employers

Following the Eleventh Circuit’s consolidated decision in Joseph and Crowther, those who work for educational institutions subject to Title IX in this jurisdiction,⁷ including universities receiving federal funding, will not be able to pursue employment discrimination claims under Title IX.  Instead, Title VII (and any equivalent state laws) will be their sole source of relief.  This in turn means that employees will not be able to bypass Title VII’s exhaustion of administrative remedies and go straight to court.  This is good news for employers, which will not suddenly find themselves in court without an opportunity to preview the complainant’s case while the matter is pending before the Equal Employment Opportunity Commission or its state counterpart. The requirement that employees abide by Title VII’s exhaustion of administrative remedies also offers an opportunity for early resolution without the pressure of impending court deadlines and associated costs. 

Although the Eleventh Circuit’s holding regarding protected activity came in the context of a Title IX claim, there is no indication that the same would not hold true in a Title VII retaliation case. That is, following Crowther, it is unlikely that a plaintiff in a Title VII retaliation case will be able to successfully argue that their participation in an investigation into their own conduct constituted protected activity. 

Finally, the court’s decision will prove helpful to employers in arguing the scope of associational discrimination claims. Joseph reminds us that a plaintiff alleging associational discrimination must keep the spotlight on their own protected characteristic.  Mere association without a tie to the complainant’s own protected category is not enough. 

While the Eleventh Circuit’s consolidated ruling in Joseph and Crowther is favorable to employers, it is unknown how long employers will enjoy the full benefits of the decision. The circuit courts of appeal are split on whether Title IX provides a private right of action for employment discrimination, with the Fifth, Seventh, and Eleventh Circuits finding that it does not, and the First, Second, Third, Fourth, and Tenth finding that it does. Given the deepening of the split, the matter may soon be in the hands of the United States Supreme Court.