In the wake of the newly adopted Biden-era Title IX regulations, one question that continues to prompt debate among educational institutions and courts alike is whether employees can sue their employers under Title IX of the Education Amendments of 1972 for sex discrimination. For decades, courts and the U.S. Department of Education made clear that Title IX protects students and employees from sex discrimination, not only in education programs and activities, but in employment. However, federal appellate courts across the country disagree on whether the remedies afforded to employees under Title VII of the Civil Rights Act of 1964 preclude employees’ sex discrimination lawsuits under Title IX. The U.S. Courts of Appeals for the Fifth and Seventh Circuits held that Title VII precludes claims for employment discrimination under Title IX, whereas the Third Circuit came to the opposite conclusion. Similarly, courts in the First, Second, Fourth and Tenth Circuits permitted an employee to bring an action for sex discrimination under Title IX without addressing the issue of preclusion.
Faced with this circuit split, the Eleventh Circuit addressed what it called the “fundamental question” of whether Title IX provides an implied right of action for sex discrimination in employment in the case Board of Regents for the University System of Georgia v. Peterson, et al. The issue came to the Eleventh Circuit on a consolidated appeal involving two employees terminated by their universities who both sued their former employers for sex discrimination. In both cases, the employers challenged whether the employees had any private right of action under Title IX to sue the schools for sex discrimination. The lower courts came to opposite conclusions about whether there was an implied right of action available to the former employees.
The Eleventh Circuit ruled that Title IX does not provide employees an implied right of action to sue for sex discrimination. The Eleventh Circuit relied on the U.S. Supreme Court’s landmark 2001 decision in Alexander v. Sandoval, which held that courts may not create an implied right of action without a clear indication of congressional intent to create a cause of action under a statute. The Eleventh Circuit acknowledged that the U.S. Supreme Court previously held that Title IX does provide an implied right of action for students that complain of sex discrimination by schools that receive federal funds and for employees who report retaliation for complaining about discrimination against students. However, the Eleventh Circuit also highlighted that the U.S. Supreme Court never expressly extended the implied right of action under Title IX to claims of sex discrimination for employees of federal funding recipients.
The Eleventh Circuit rejected the employees’ argument that there was an implied right of action available to employees claiming sex discrimination for two main reasons. First, the Court recognized that nothing in the text of Title IX suggested a “congressional intent to provide a private right of action to employees of education institutions.” The Court said that while there is “little doubt” that Title IX’s focus on educational institutions and programs represented an intent to provide students protection from sex discrimination, the connection was “less obvious for employees.” Second, the Court reasoned that Title VII, which explicitly addresses employment discrimination, provides a comprehensive remedial scheme that would be undermined by allowing overlapping sex discrimination claims under Title IX. The Court found it “unlikely” that Congress intended Title VII’s express private right of action and Title IX’s implied right of action to provide overlapping remedies.
Although the Eleventh Circuit’s decision in Peterson was a clear denial of employees’ implied right of action for sex discrimination claims, the decision does not settle the issue nationally. The Eleventh Circuit’s decision directly conflicts with decisions from other circuits, including most recently the Second Circuit’s 2022 decision in Vengalattore v. Cornell University, which held that Title IX does provide employees with a private right of action to bring gender discrimination claims. The Second Circuit pointed to Title IX’s broad language, which prohibits sex discrimination against any “person.” The Vengalattore court also cited U.S. Supreme Court precedent extending Title IX’s protections to the employment context. The U.S. Supreme Court has yet to weigh in on this circuit split.
McGuireWoods and its team of education attorneys continue to monitor updates related to Title IX. Please contact the authors of this article for more information or with questions about Title IX.