by Abigail Crabtree, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
The remedies available to an individual who faces sexual harassment by a supervisor in a medical residency program depend on which court hears the claim. The circuit courts are split as to whether Title VII of the Civil Rights Act of 1964 (Title VII), Title IX of the Education Amendments of 1972 (Title IX), or both, may provide a remedy. This split has significant implications for the affected parties, as it determines the scope and extent of their legal recourse. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and national origin, while Title IX prohibits sex discrimination in educational settings.[1] On its face, the situation above appears to implicate the language of both Title VII and Title IX. Due to the lack of uniformity among the circuit courts, the Supreme Court must determine whether victims may seek remedies under both Title VII and Title IX.
This article will discuss the circuit split concerning whether an employee’s private right of action under Title IX for sex discrimination is preempted by a Title VII claim in an educational setting. The First, Third, Fourth, Sixth, and Eighth Circuits hold that Title VII claims do not preempt Title IX claims, while the Fifth and Seventh Circuits hold the opposite.[2] Section II will provide background on Title VII’s and Title IX’s legislative history and scope, the circuit split, and the relevant case law from the Supreme Court. Section III will interpret the Supreme Court’s relevant decisions and discuss the shortcomings of the Fifth and Seventh Circuits’ conclusions.
II. Background
Courts routinely rely on the legislative history of Title VII and Title IX when discerning their scope. Because both Title VII and Title IX prohibit sex discrimination, their legislative history offers courts valuable insight into their differences and the implications those differences hold for each claim. The circuit courts interpret the legislative history differently, ultimately leading to disparate conclusions. Although the Supreme Court has not ruled on whether Title VII claims preempt Title IX claims specifically, it has addressed overlapping discrimination claims.
A. Title IX Legislative History
Title VII of the Civil Rights Act of 1964 was enacted to combat employment discrimination on the basis of race, color, religion, sex, or national origin.[3] Title VII originally contained an exemption for educational institutions, significantly limiting the statute’s effectiveness in addressing employment discrimination.[4] The Equal Employment Act of 1972 ultimately removed this exemption, making Title VII fully enforceable against educational institutions.[5]
That same year, Title IX was borne out of provisions introduced during the Senate debate on the Education Amendments of 1972.[6] This was a significant moment in the history of gender equality, and understanding the context of its creation is essential for accurately analyzing and interpreting the statute. Senator Birch Bayh, who introduced the provisions, stated that his proposal was designed to “clos[e] loopholes in existing legislation relating to general education programs and employment resulting from those programs.”[7] A steadfast advocate for women’s equality, Senator Bayh was instrumental in ratifying Title IX. Senator Bayh credited his wife, Marvella, for inspiring him to introduce Title IX.[8] Marvella educated the Senator about the realities of discrimination against women, a truth he witnessed first-hand when Marvella was denied admission to the University of Virginia with the following statement: “Women need not apply.”[9]
Title IX was ultimately signed into law in 1972, prohibiting discrimination on the basis of sex in “any education program or activity receiving Federal financial assistance.”[10] Understanding Senator Bayh’s influence and intentions regarding Title IX is essential for accurately analyzing and interpreting the statute. The Supreme Court has referenced Senator Bayh’s language to interpret Title IX on multiple occasions, citing his remarks from the debate on the Education Amendments of 1972 to establish his intent, which the Court described as “an authoritative guide to the statute’s construction.”[11]
B. Scope of Title VII and Title IX
Due to the similarities between Title VII and Title IX, and because Title VII was extended to educational institutions so shortly before the enactment of Title IX, questions immediately arose as to how far Title IX reaches.[12] The Supreme Court has addressed the scope of Title IX on several occasions, holding that Title IX provides a private right of action in 1979, that monetary damages are available in private Title IX suits in 1992, and that retaliation is a form of gender discrimination under Title IX in 2005.[13] There was especially vigorous debate as to whether Title IX prohibits employment discrimination on the basis of sex within educational institutions.[14]
While addressing a circuit split in 1982, the Supreme Court wrote that Title IX’s directive in prohibiting discrimination on the basis of sex is “broad” and used Senator Bayh’s statements during the Senate debate on the Education Amendments of 1972 to assist in addressing this question.[15] Senator Bayh stated that the Senate was dealing with three “different types of discrimination…discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever.”[16] The Supreme Court used Senator Bayh’s statements to conclude that it was the Senate’s intent for Title IX to protect both students and employees from discrimination.[17]
C. The Circuit Court Split
The First, Third, Fourth, Sixth, and Eighth Circuits have ruled that Title VII claims do not preempt private causes of action for retaliation under Title IX. These courts allow the statutes to coexist and operate under the same framework. [18] In a case representative of this perspective, the Third Circuit held in Doe v. Mercy Catholic Medical Center that “Title VII’s concurrent applicability does not bar Doe’s private causes of action” under Title IX.[19] Further, the Third Circuit emphasized that it is “Congress’s prerogative” to alter the course they have laid in which a “variety of remedies, at times overlapping” exist to eliminate employment discrimination.[20]
Conversely, the Fifth and Seventh Circuits have held that Title VII is the exclusive remedy for employment discrimination claims, preempting the pursuit of a private right of action under Title IX. The Fifth Circuit determined that Title VII and Title IX prohibitions of discrimination on the basis of sex are “the same.”[21] Consequently, the court held that allowing a Title IX and Title VII action to co-exist would enable claimants to use Title IX to circumvent the more detailed administrative procedures of Title VII.[22] Similarly, the Seventh Circuit ruled that Title VII provides a “comprehensive statutory scheme” for protecting rights against employment discrimination, implying that Congress intended it to serve as the exclusive remedy.[23]
D. The Supreme Court on Overlapping Discrimination Claims
The Supreme Court addressed the issue of overlapping remedies for discrimination in the 1974 case of Alexander v. Gardner-Denver Co.[24] The Court found that multiple forums providing employment discrimination claims were “consistent” with Congress’s intent to prioritize policy combatting discrimination.[25] The Court stated that Title VII is a manifestation of congressional intent “to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.”[26] Moreover, the Court emphasized that “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.”[27]
The Court has not found that the broad language of Title IX indicates exclusion of overlapping Title VII claims. The Court addressed whether retaliation is encompassed under Title IX in Jackson v. Birmingham Board of Education and did not take issue with the fact that Title VII already expressly prohibits retaliation.[28] A majority of the Justices refuted the notion that Congress’ explicit mention of retaliation claims in Title VII indicates its intentional exclusion from Title IX.[29] Instead, the majority relied on the differences in the statutory language, with Title VII being a detailed, comprehensive statute, and Title IX being a “broadly written general prohibition on discrimination.”[30]
In Fitzgerald v. Barnstable Sch. Comm., the Court analyzed whether Title IX is the exclusive mechanism to bring gender discrimination claims in educational institutions.[31] Ultimately, the Court held that Title IX claims may be brought in addition to “parallel and concurrent” 42 U.S.C.S. § 1983 claims.[32] The Court relied on Congress modeling Title IX after Title VI of the Civil Rights Act of 1964 and understanding that they would be interpreted the same way to reach its conclusion.[33]
The Court also discussed discrimination claims overlapping with Title VII in Great Am. Fed. Sav. & Loan Ass’n v. Novotny.[34] Novotny discussed whether a right created by Title VII could serve as the basis for a cause of action under 42 U.S.C. § 1985(3).[35] Ultimately, the Court held that it could not because the rights were not sufficiently “independent” from one another, distinguishing the case from Alexander.[36]
III. Discussion
Many of the circuit court opinions that decided whether Title VII claims preempt Title IX claims predate relevant Supreme Court decisions. Although the Supreme Court has not explicitly ruled on this issue, an interpretation of its recent decisions provides more insight into how the circuit split should be resolved. The Seventh Circuit’s reliance on Novotny is misguided, and the Fifth Circuit must reevaluate the issue within the context of the recent Supreme Court decisions. Both the Seventh and the Fifth Circuits ought to align with the First, Third, Fourth, Sixth, and Eighth Circuits and hold that Title VII claims do not preempt Title IX claims.
A. Interpreting Supreme Court Decisions
The Supreme Court’s recent holdings indicate that Title VII claims do not preempt Title IX claims. The Court wrote in Jackson that “Title VII is a vastly different statute from Title IX” and noted that a comparison of the statutes is “of limited use.”[37] This language suggests that, despite Title IX and Title VII covering many of the same issues, the Supreme Court sees the two statutes as fundamentally distinct. It follows that the Supreme Court would, consequently, find that Title VII claims do not preempt Title IX claims. The Department of Justice agrees with this contention and holds that “Title IX and Title VII are separate enforcement mechanisms” and that both statutes can be utilized to “attack the same violations.”[38]
Further, the Supreme Court wrote in Jackson that “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.”[39] The Court also explicitly held in Fitzgerald that Title IX claims may be brought in addition to “parallel and concurrent” 42 U.S.C.S. § 1983 claims.[40] It would naturally follow for the Court to extend the latter holding regarding Section 1983 claims to Title VII claims which are similarly “parallel and concurrent.”[41] Such an extension would comport with the Supreme Court’s emphasis on prioritizing congressional policy to combat discrimination.[42]
B. The Seventh Circuit’s Misinterpretation of Novotny
The Seventh Circuit substantially relied on Novotny to conclude that Title VII preempts Title IX claims. Using Novotny to reach this conclusion is a severe misinterpretation of that decision. The Seventh Circuit cited Novotny for the proposition that “[i]t is well-established that Title VII’s own remedial mechanisms are the only ones available to protect the rights created by Title VII.”[43] The Supreme Court, though, has used Novotny to support a different conclusion; the Court cited Novotny in 2008 to show the “general intent to accord parallel or overlapping remedies against discrimination” and explain why “the Court has accepted overlap between a number of civil rights statutes.”[44] The Supreme Court’s interpretation of Novotny clearly conflicts with that of the Seventh Circuit. It is problematic that the Seventh Circuit, one of only two circuit courts asserting that Title VII claims preempt Title IX claims, reached its conclusion through such a misinterpretation.
C. The Fifth Circuit’s Outdated Analysis
The Fifth Circuit found that Title VII claims preempt Title IX claims in Lakoski v. James, ten years before Jackson and 14 years before Fitzgerald.[45] The Fifth Circuit was making its decision based on very limited guidance from the Court and came to its conclusion mainly through its own reasoning and analysis of how overlapping discrimination claims ought to be treated. The Fifth Circuit opined that because Title VII and Title IX prohibitions of discrimination are “the same,” individuals must adhere to the more particular administrative procedures of Title VII and cannot seek remedy through Title IX.[46] The court felt that to do otherwise would defeat the “larger federal legislative scheme designed to protect individuals from employment discrimination on the basis of sex.”[47] However, the Supreme Court wrote in Jackson that a comparison of the two “vastly different” statutes is of “limited use.”[48] Further, the Court wrote that Title VII was a “supplement” to employment discrimination laws.[49] These statements from the Supreme Court contradict the Fifth Circuit’s conclusion that the similarities between Title VII and Title IX mean that allowing a claim under both statutes would undermine the legislative scheme to protect against employment discrimination. This apparent contradiction to the Fifth Circuit’s holding in Lakoski necessitates a reexamination of the issue. Still, the Fifth Circuit has continued to cite Lakoski for this proposition without any reexamination.[50]
IV. Conclusion
The Fifth and Seventh Circuits should align with the majority and find that Title VII claims do not preempt Title IX claims. Although the Supreme Court has not directly addressed whether Title VII claims preempt Title IX claims, its precedent suggests that both claims can co-exist. The Department of Justice agrees with this contention and holds that “Title IX and Title VII are separate enforcement mechanisms” and that both statutes can be utilized to “attack the same violations.”[51] A Supreme Court holding that contradicts this view would circumvent the Court’s historic reliance on congressional intent and Title VII’s and Title IX’s legislative history. As stated by the Third Circuit, Congress created multiple avenues to bring employment discrimination claims, and it is Congress’ prerogative to reevaluate and rework the availability of these claims.[52]
[1] 42 U.S.C. § 2000e-2.
[2] Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 563-64 (3rd Cir. 2017).
[3] 42 U.S.C. § 2000e-2.
[4] 88 P.L. 352, 78 Stat. 241.
[5] Lakoski v. James, 66 F.3d 751, 757 (5th Cir. 1995).
[6] N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 524 (1982).
[7] Id.; Greg Johnson, The Origins of Title IX, NCAA (June 23, 2022), https://www.ncaa.org/news/2022/6/23/features-the-origins-of-title-ix.aspx.
[8] Johnson, supra note 7.
[9] Id.
[10] 20 U.S.C. § 1681(a).
[11] Johnson, supra note 7,; N. Haven 456 U.S. at 527; Cannon v. University of Chicago, 441 U.S. 677, 694 (1979).
[12] Piscitelli v. Univ. of St. Joseph, U.S. Dis. LEXIS 107335, at *11 (Conn. Dist. Ct., 2020).
[13] Cannon 441 U.S. 677; Franklin v. Gwinnett Cnty. Pub. Sch. 503 U.S. 60 (1992); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).
[14] N. Haven, 456 U.S. at 530.
[15] Id. at 526-27; Piscitelli U.S. Dis. LEXIS 107335 at *13-14.
[16] N. Haven, 456 U.S. at 526.
[17] Id. at 530.
[18] See Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203 (4th Cir. 1994); Ivan v. Kent State Univ., 92 F.3d 1185 (6th Cir. 1996); Johnson v. Baptist Med. Ctr., 97 F.3d 1070 (8th Cir. 1996).
[19] Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 563 (3rd Cir. 2017).
[20] Id. at 564.
[21] Lakoski v. James, 66 F.3d 751, 757 (5th Cir. 1995).
[22] Id. at 758.
[23] Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 861 (7th Cir. 1996).
[24] Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-9 (1974).
[25] Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402 (1968); Alexander, 415 U.S. at 47.
[26] Alexander, 415 U.S. at 48.
[27] Id.
[28] Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005).
[29] Id.
[30] Id.
[31] Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009).
[32] Id.
[33] Id.
[34] Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366 (1979).
[35] Id.
[36] Id. at 378.
[37] Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005).
[38] Title IX Legal Manual, U.S. Dep’t of Just. (Sept. 14, 2023), https://www.justice.gov/crt/title-ix.
[39] Jackson, 544 U.S. at 175.
[40] Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009).
[41] Id.
[42] Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974).
[43] Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 861 (7th Cir. 1996).
[44] CBOCS West, Inc. v. Humphries, 553 U.S. 442, 456 (2008).
[45] Lakoski v. James, 66 F.3d 751 (5th Cir. 1995).
[46] Id. at 757-58.
[47] Id. at 755.
[48] Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005).
[49] Id.
[50] Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1118 (5th Cir. 2021).
[51] Title IX Legal Manual, U.S. Dep’t of Just. (Sept. 14, 2023), https://www.justice.gov/crt/title-ix.
[52] Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 (3rd Cir. 2017).
Cover Photo by Redd F on Unsplash.
