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Title VII didn’t preempt Title IX retaliation claim by lecturer fired after being cleared of harassment

By Lorene D. Park, J.D.

Explaining that Title VII would preempt a Title IX claim involving employment discrimination, but would not preempt a Title IX claim of retaliation for participating in Title IX proceedings, even if the alleged retaliation results in termination of employment, a federal court in Texas denied a university’s motion for summary judgment on a former lecturer’s Title IX claim alleging that his contract nonrenewal was retaliation for his participation in (and successful defense against) a former grad student’s Title IX complaint that he sexually harassed her (Wilkerson v. University of North Texas, December 4, 2018, Mazzant, A.).

The employee was hired by the University of North Texas (UNT) in 2003 as a lecturer in a non-tenured-track capacity, under a one-year term contract. At the end of his first term, his contract was renewed, he was promoted, and his duties were expanded. In 2011, he was offered a one-year appointment with a five-year commitment to renew as the department’s “Principal Lecturer,” which was the highest level attainable for a non-tenured teacher.

Consensual relationship. His lawsuit centered around an allegedly wrongful discharge based at least in part on a relationship his department chair deemed to be inappropriate. Specifically, in May 2013 he met a 26-year-old incoming graduate student at a recruiting event; they met several times at his home in June and kissed twice. The employee played no role in her admission or employment, nor was he ever her teacher and did not exercise any authority over her.

Harassment charge. After matriculating, the grad student filed a complaint alleging sexual harassment by the employee, resulting in the issuance of a formal complaint by the Department of Equity and Diversity (OEO). As a result, the employee participated in the investigation into her claim against him. Meanwhile, the department chair gave him a favorable yearly evaluation, but withheld renewing his appointment pending the outcome of the complaint.

Fired despite exoneration. In May 2014, the OEO found that he did not violate UNT’s sexual harassment and consensual relationship policies and the female did not appeal, therefore making the OEO’s decision final. Nevertheless, the department chair, after consulting with counsel and the dean, sent him a letter informing him that his appointment would not be renewed. In the subsequent grievance process, she cited his “poor judgment.” In the employee’s appeal, a committee conducted additional interviews and although it agreed with the “poor professional judgment” assessment, it also stated that the department chair had not followed due process as required by the bylaws. Nonetheless, the provost upheld the nonrenewal decision.

Lawsuit. The employee filed suit alleging UNT violated Title IX by retaliating against him because he testified, assisted, and participated in investigations, proceedings, and hearings concerning his alleged violations of the university’s sexual harassment and consensual conduct policies. The employee had also initially asserted due process and tortious interference claims against administrators in their individual capacities, but the Fifth Circuit held, on interlocutory appeal, that the claims failed on immunity grounds because the department chair acted within the scope of employment in making the decision and the employee did not have a clearly established property right in continued employment for five years. Thus, on remand, only the Title IX retaliation claim against UNT remained.

Title IX retaliation claim not preempted by Title VII. Moving for summary judgment, UNT argued that under the Fifth Circuit’s ruling in Lakoski v. James, while Title IX provides a remedy for discrimination in an education program receiving Federal funding, “Title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions.” In other words, Title IX does not afford a private right of action for employment discrimination based on sex.

Disagreeing, the court pointed to Lowrey v. Tex. A & M Univ. Sys., in which the Fifth Circuit considered whether the holding in Lakoski concerning employment discrimination applied to Title IX retaliation claims. The Fifth Circuit decided that Title IX created a private cause of action for retaliation against the employees of federally funded educational institutions. Unlike employment discrimination claims, Title VII retaliation claims do not necessarily preempt Title IX retaliation claims when the alleged retaliation concerns an employee who suffered unlawful retaliation “solely as a consequence of complaints alleging noncompliance with” Title IX.

Under Lowry, then, Title VII preempts a Title IX claim alleging retaliation for participation in investigations of alleged employment discrimination, but not a Title IX claim alleging retaliation for participation in investigations challenging alleged violations of Title IX.

Here, the employee claimed UNT terminated him in retaliation for his participation in a Title IX investigation, so his claim was not preempted. Contrary to UNT’s position, the fact that UNT terminated his employment did not change his claim to a Title VII matter.