In Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 563 (3d Cir. 2017), the Third Circuit Court of Appeal rejected the Fifth and Seventh Circuits interpretation of Title IX – that employees suing an educational institution for gender based discrimination must sue under Title VII only – and joined the First and Fourth Circuits which recognize an employee’s right to pursue a gender based employment discrimination claim under Title IX.
The Fifth and Seventh Circuits held that Title VII of the Civil Rights Act of 1964, as amended, was the “exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions” citing Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995); accord Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 861–62 (7th Cir. 1996), abrogated in part on other grounds by Fitzgerald, 555 U.S. 246, 129 S.Ct. 788, 172 L.Ed.2d 582.
In Doe, the Third Circuit followed the holdings of Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994) (Cannon extends to “employment discrimination on the basis of gender by educational institutions receiving federal funds.”) and Summa v. Hofstra Univ., 708 F.3d 115, 131 n.1 (2d Cir. 2013).
The Third Circuit reasoned “Lakoski and Waid did not address the Supreme Court’s decisions in Johnson and Brown and the provisions of North Haven rejecting “policy” – based rationales like those Justice Powell set out in his dissent and that Mercy and its amicus raise here. Finally, Lakoski and Waid were decided a decade before the Supreme Court handed down Jackson, which explicitly recognized an employee’s private claim under Cannon. We thus question the continued viability of Lakoski and Waid and see fit here to deviate from them”.
Practice Pointer: This is another case for practitioner’s to keep in their hip pockets when arguing to bring a claim for gender based employment discrimination under Title IX. In addition, unless the claim is one of retaliation based on an underlying complaint of student discrimination or harassment, the best practice is to still file a charge of discrimination with the EEOC to preserve your client’s rights under Title VII should you be in the Fifth or Seventh Circuits or in a Circuit which remains undecided on the issue.*
* This article is not meant for individual legal advice. If you feel you have a Title IX claim, you should contact a lawyer in your area to advise you.