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Title IX - A New Pathway for Sex Discrimination Claims by Medical Residents?

10.26.2018

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX) has received a lot of attention recently for its impact on college athletic programs. Both male and female sports have grown increasingly popular and can now create large revenue streams for their educational institutions. With all the focus on sports, many people outside of the legal arena probably overlook that Title IX actually covers all aspects of education. For example, a federal appellate court held just last year that the discrimination and harassment prohibitions of Title IX even extend to medical residency programs in private hospitals.

Under that ruling, a medical resident was allowed to sue her hospital-employer for sex discrimination directly under Title IX without wading through the traditional administrative prerequisites to filing suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Title VII) — the statute most employees rely on for sex discrimination claims. Bypassing Title VII’s administrative prerequisites not only makes it easier for an employee to sue, but also extends the time in which an employee can bring suit. Title IX’s lack of such prerequisites allows direct access to federal courts and could mean an uptick of employment lawsuits brought by medical residents against private hospitals. Consequently, hospitals and other medical facilities with residency programs should ensure they understand their obligations under Title IX and remain vigilant in their efforts to prevent sexual harassment, discrimination, and retaliation.

Application of Title IX. Title IX was passed in 1972 to prevent federal money from funding education programs that engage in sex discrimination. The law provides, with certain exceptions, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX prohibits sex discrimination in a broad spectrum of employment actions, such as, recruiting, advertising, applying, hiring, upgrading, promoting, considering for and awarding of tenure, demoting, transferring, rehiring, assigning jobs, and granting leaves of absence.

The express enforcement mechanism under Title IX is an administrative procedure for withdrawal of federal funding from noncompliant programs, but the United States Supreme Court has instructed that an implied private right of action also exists for injunctive relief and damages. As mentioned, last year, the United States Court of Appeals for the Third Circuit (jurisdiction over Delaware, New Jersey, Pennsylvania, and the Virgin Islands) held in Doe v. Mercy Catholic Medical Center, 850 F.3d 545 (3d Cir. 2017), that Title IX authorizes a medical resident to sue her private hospital-employer for sex discrimination and harassment. The Mercy Court ruled that the residency program at issue constituted an “education program or activity” covered by Title IX because (1) it was certified by the Accreditation Council for Graduate Medical Education, meaning the hospital’s mission was, at least in part, education, (2) the hospital required its residents to participate in lectures, give presentations, and sit for exams, (3) the hospital appeared to hold out its residency program as educational in nature, and (4) the residency program was sponsored by Drexel University’s College of Medicine.

The hospital argued for the first time on appeal that it did not receive “Federal financial assistance” under Title IX because its Medicare payments stem from “contracts of insurance,” but the Mercy Court declined to consider this argument. Instead, the Mercy Court assumed, without deciding, that the hospital’s receipt of Medicare payments satisfied Title IX’s requirement that the education program or activity (i.e., the residency program) receives “Federal financial assistance,” thus bringing it under the purview of Title IX. The Mercy Court went on to explain that the resident-employee’s Title IX claims were not precluded by Title VII, even though the two statutes could both be applicable for claims of sexual harassment, discrimination, and retaliation filed by the medical resident-employee. Significantly, not every court to consider that issue has sided with the Mercy Court’s conclusion. Under similar facts, a Texas trial court concluded that Title VII provides the exclusive remedy for a medical resident seeking relief for sexual harassment and retaliation claims against their hospital-employer.

Although the United States Court of Appeals for the Fourth Circuit (jurisdiction over North Carolina, South Carolina, Virginia, West Virginia, and Maryland) has yet to decide if a medical residency program is subject to Title IX, in Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994), that court allowed an employee to sue his/her employer under Title IX for alleged gender discrimination, suggesting that such private causes of action are not preempted by Title VII in this state. Specifically, the Preston Court explained that Title IX’s implied private right of action “extends to employment discrimination on the basis of gender by educational institutions receiving federal funds,” and that “[r]etaliation against an employee for filing a claim of gender discrimination is prohibited under Title IX.”

This is significant because, in North Carolina, employees suing their employers under Title VII must first exhaust their administrative remedies with the Equal Employment Opportunity Commission by filing charges of discrimination within 180 days of their employers’ last alleged acts of prohibited conduct. In contrast, Title IX allows employees three years to file suit in North Carolina, and contains no such administrative exhaustion requirement. This makes it that much easier for a medical resident to directly sue his/her hospital-employer for sexual harassment, discrimination, and/or retaliation.

Title IX Requirements. Given that Title IX could apply to medical residency programs in this state, private hospitals operating such programs might want to consult with counsel to determine if they should come into compliance with Title IX’s numerous regulations. The Department of Education has published helpful guidance to schools outlining several of Title IX’s procedural requirements. Among the requirements, Title IX mandates adoption and publication of grievance procedures that provide prompt and equitable resolution of complaints alleging violations of Title IX. The complainant should be afforded the right to adequate, reliable, and impartial investigation of complaints.

Title IX also requires the designation of one or more employees to coordinate efforts to comply with and carry out the employer’s Title IX responsibilities. The designated employee(s) is responsible for overseeing the investigation of complaints alleging noncompliance with Title IX. All employees must be notified of the name, office address, and telephone number of the employee(s) designated to coordinate the Title IX compliance efforts. Additionally, Title IX requires that covered entities have and distribute policies against sex discrimination, and implement specific and continuing steps to notify employees that they do not discriminate on the basis of sex. A prominent statement of that non-discrimination policy must generally be published in each announcement or bulletin distributed to employees.

In summary, should Title IX apply to medical residency programs in North Carolina, compliance with the law’s numerous procedural requirements could help ensure that a hospital-employer is in an optimal position to defend against potential claims of sexual harassment, discrimination, and retaliation brought by medical residents. 

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