As a result of the increase in campus sexual violence reports and student disciplinary proceedings, male students who were found responsible for sexual violence began filing lawsuits claiming that they were victims of anti-male bias. Attorneys like Andrew Miltenberg “found a calling: addressing what he saw as a crisis in campus Title IX processes, as universities around the country, he felt, overcorrected after decades of failing to take student sexual violence seriously enough.”

However, last year Miltenberg agreed to represent a survivor of sexual assault in what his law partner called an act of “career suicide.” Miltenberg had started thinking that instead of being withdrawn, the 2011 Dear Colleague Letter “merely need[s] to be amended.” He also acknowledged that if the process is broken, it’s broken as much for complainants as for respondents. As he worked on a complainant’s case and the public focus turned to due process,  he realized that he was one of the people “for better or worse” who had helped shift that focus.

Getting the disciplinary process right for Title IX complaints may now have implications not just for students, but for employee complaints under Title IX and Title VII as well. Harvard law professor Jeannie Suk Gersen warns that “Along with the expected uptick in firings for sexual harassment, we could see an increase in wrongful termination claims by men arguing that their firing was discriminatory against males, in violation of Title VII, even if the decision was driven by the desire to eradicate discrimination against females.”

For example, in a 2009 case the U.S. Court of Appeals for the Second Circuit refused to dismiss a male employee’s Title VII sex discrimination lawsuit. A female co-worker had accused him of sexually harassing and stalking her. The accused male employee said he was pressured to resign after his supervisor told him “you probably did what [she] said you did because you’re male.” Because the employer didn’t properly investigate the accusation, the court found that a reasonable jury could infer discrimination based on sex stereotyping. [Sassaman v. Gamache (2nd Cir. 2009) 566 F.3d 307]

So, the question is whether employers can learn from higher education’s student discipline experience to deal with the expected rise in employee reports of workplace sexual harassment. This issue takes on increased importance when we look at the scope of Title IX’s reach. With much of the focus on Title IX centered around addressing campus sexual assault against students, we often overlook the fact that Title IX also protects employees of education institutions, programs, and activities against sex discrimination and harassment. Just to emphasize this last point, Title IX protects employees of an education program or activity — even if it’s not offered or sponsored by an educational institution.

Last year, a federal appeals court decision reminded us that Congress used broad language to define education programs and activities covered by Title IX in a case involving sexual harassment claims by a medical resident against the director of a residency program. The U.S. Court of Appeals for the Third Circuit found that:

  • Title IX and Title VII both protect employees against workplace discrimination
  • Students and employees have the right to file a lawsuit for damages under Title IX
  • Employees of federally funded education programs may sue for retaliation under Title IX

[Jane Doe v. Mercy Catholic Medical Center (3d Cir. 2017) No. 16-1247]

The court also found that under Title IX, “education program or activity” means “all of the operations” of an entity “any part of which” receives federal funding, including not only public and private postsecondary institutions, but also corporations, partnerships, sole proprietorships, and other organizations engaged in the business of providing education, healthcare, housing, social services, or parks and recreation.

To decide if a program or activity is educational, the court looked at whether

  • It’s a particular part- or full-time course of study or training
  • Participants may earn a degree or diploma, qualify for certification or certification examination, or pursue a specific occupation or trade
  • It provides instructors, examination, an evaluation process or grades, or accepts tuition
  • The entities hold themselves out as educational in nature

In its formative years, Title IX looked to Title VII of the Civil Rights Act for the legal definition of sexual harassment. However, just as social media created a platform for the Title IX movement, #MeToo has exposed the magnitude of workplace sexual harassment. This may require employers covered by Title VII to learn how to conduct a thorough and impartial investigation of sexual harassment allegations by looking to the Title IX experience and avoiding the problems that higher education has encountered in navigating these complex cases.

With the bright light on sexual harassment claims, and administrative transitions occurring within the U.S. Department of Education, private lawsuits by both complainants and respondents may become more common to enforce Title IX rights and responsibilities. The best prevention for avoiding lawsuits is to regularly review disciplinary policies and procedures for students and employees. When the process is fair and unbiased, and goes hand-in-hand with effective prevention programs, it encourages reporting, increases accountability, and gives survivors choices on how to proceed in a way that helps them heal.