Discrimination and Retaliation:

By Off the BASN Sports Wire By Deborah Brake and Joanna L. Grossman
Updated: April 5, 2005

NEW YORK, NY—People don’t like “complainers.” Or, more accurately, people in power don’t like people who complain about wrongdoing within institutions. And that is especially true if the complaint is about alleged discrimination and the complainers are women and/or persons of color.

According to social psychologists, women and racial minorities who complain about discrimination are perceived as irritating, hypersensitive, and all-around troublemakers. And these negative perceptions persist even in the face of persuasive evidence that their complaints of discrimination are entirely justified.

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People who experience discrimination know the uphill battle they face. Even if a victim is aware that discrimination has occurred, statistically, he or she is overwhelmingly unlikely to tell anyone in a position of authority. Research shows that victims are acutely aware of the costs of raising concerns of discrimination.

Not surprisingly, the fear of retaliation is the number one reason victims give for their silence: A victim who is not promoted due to discrimination may fear that if she complains, she will find herself out of the running for any future advancement within the company – or, worse, demoted or fired.

For all of these reasons, the Supreme Court’s decision last week in Jackson v. Birmingham Board of Education ranks among the most important of this year’s Court Term. There, the Court recognized the right to sue for retaliation under Title IX, the federal law barring sex discrimination in federally funded education programs.

There is, however, a looming question the decision did not resolve – one which may be as – or more – important than the basic question of whether a coach’s suit for retaliation can succeed. The question is whether a complainer who happens to be legally or factually wrong about his or her claim of discrimination, can legally suffer retaliation for that complaint.

The Facts and Claims in Jackson

The plaintiff in Jackson, who happens to be male, was a girls’ basketball coach at Ensley High School in Birmingham, Alabama. He complained about what he perceived to be unequal treatment of female athletes compared to their male counterparts.

His complaint had a strong basis: He pointed to a number of objective ways in which female athletes fared much worse. This discrimination was not subtle, but blatant – coming in the form of inferior transportation (the girls had no team bus), facilities (the girls’ nearly-century old gym had no heat), equipment (the girls shot into smaller-than-regulation hoops with bent rims and no fiberglass on the backboards), and funding (the girls’ team had no expense account).

After pointing out these gender-based inequalities, which violated the law, Coach Jackson was rewarded by being stripped of his coaching duties. (The facts of the case are described in greater detail in a previous column by Joanna Grossman).

Coach Jackson sued for retaliation under Title IX, alleging that his firing was in retaliation for his complaining about discrimination on behalf of his players.

The Legal Landscape Before the Supreme Court’s Decision in Jackson

Before Jackson sued, federal courts had uniformly assumed the existence of a right to sue for retaliation under Title IX and its parallel statute, Title VI, which prohibits race discrimination in all federally funded programs.

Granted, neither statute expressly creates any private cause of action. But implied rights of action are not uncommon in this context: The U.S. Supreme Court has held, for example, that a right of private individuals to sue for discrimination is implied under both Title IX and Title VI.

The right to sue for retaliation, in the view of most courts, was implied as well in Title IX’s broad guarantee against sex discrimination. (Even the U.S. Courts of Appeals for the Fourth and Fifth Circuits, widely thought to be the two most conservative federal appellate courts in the country, had reached this conclusion.)

But when Jackson’s case went before the U.S. Court of Appeals for the Eleventh Circuit, this universally held, common-sense understanding of Title IX’s scope was cast into doubt. The Eleventh Circuit suggested that no one was protected from retaliation under Title IX – not even, say, a player who pointed out discrimination and found herself cut from the team she loved. And certainly, the Eleventh Circuit claimed, a male coach was not protected under a statute meant to protect female athletes from discrimination.

The Supreme Court thus stepped into the fray, and sided against the Eleventh Circuit’s crabbed reading of the statute. It’s fortunate that it did: The Eleventh Circuit’s interpretation would have made Title IX into a legal train wreck.

After all, who’s more likely to point out discrimination to the authorities – a teenage athlete focused on her game, or a seasoned coach, with a long-term perspective, who’s familiar with how both genders’ teams are treated?

The Majority Opinion: A Thoughtful Embrace of Title IX’s Broad Purpose

Justice O’Connor’s opinion for the five-member majority wisely recognized that failing to provide legal rights against retaliation would make a mockery of Title IX. Discrimination laws are meaningless and a waste of paper if people are forced or pressured to remain silent in the face of perceived discrimination.

A lack of protection from retaliation would be particularly unfair under Title IX, which has been held to require individuals to give an institution notice of certain types of discrimination before they can pursue legal remedies against it. (For example, the Supreme Court has interpreted Title IX to mean that school officials have no obligation to respond to sexual harassment — either teacher-student or student-student — until they have actual notice it has occurred.)

Without protection from retaliation, this notice requirement would create a cruel Catch-22 for the victim of harassment: Either say nothing, and have no legal recourse against the harassment, or speak up and risk retaliation with no legal recourse to challenge it.

The majority of the Court prudently chose to resolve this dilemma by protecting the victim from retaliation if she speaks out. That result comports with common sense and carries out the goals of Title IX – which include effectively preventing discrimination in high school and college athletics.

Four Justices Joined an Unpersuasive Dissent

Common sense should never be taken for granted, though, and the 5-4 split in Jackson is a reminder of that.

Justice Thomas authored a dissent concluding that courts should never infer any protections that Congress has not explicitly spelled out. However, as noted above, this view contradicts the Court’s own precedent since the Court has many times inferred private rights of action of different sorts in order to effectuate Congress’ goals in passing a given statute.

Moreover, in this case, the argument for inferring a private right of action was especially strong. Congress opted for broad statutory language banning sex discrimination, and – as argued above — failing to imply a cause of action for retaliation would, in many cases (including this one), completely undermine the statute.

So Justice Thomas is doing no favors to Congress by declining to go beyond the literal words of its statute here. To the contrary, his view – if adopted by the Court – would only have ensured that Congress’ objective in passing Title IX was severely undermined, and in many cases, defeated.

Who is Protected from Retaliation?

Crucial to the majority opinion in Jackson is its recognition that Title IX must be read to protect anyone from retaliation for complaining against discrimination — whether or not the person retaliated against is the same person who was targeted for the underlying discrimination. The lower court in Jackson had ruled that a coach could not claim whatever protection Title IX offered against retaliation because the coach was not among the class of persons who experienced the discrimination.

The Court held, instead, that the coach was still, in the legal sense, a victim of sex discrimination. After all, the Court reasoned, the coach was punished because he complained about sex discrimination in particular. The discrimination, then, ended up affecting not only his players, but him as well.

The Court’s ruling in this respect is extremely important. People who are not the primary targets of the discrimination are often in the best position to complain about it. Certainly in the school and university settings, teachers and employees are much more likely than students to have the information, courage and presence of mind necessary to raise concerns about discrimination against students.

Their complaints may also have the best chances of success. Again, social psychology research is informative. Studies confirm that the strongest social disapproval is reserved for persons who complain that they themselves have been subjected to discrimination. It is they who are the most likely to be perceived negatively, as self-interested and over-sensitive.

Granted, Jackson himself complained to a hostile administration – and thus, his complaint did not, in fact, succeed. But some administrations will listen better than others (and many general counsels will advise them to listen closely) – and a coach may not know if his or her administration is hostile or receptive until he or she complains.

For the complaints to reach the ears of receptive administrators who can correct sex-based disparities, they must also be able to reach the ears of hostile administrators and not result in retaliation. Ironically, protecting complainants against retaliation also serves the interests of schools – which can avoid costly lawsuits by taking action to ensure equality. In this case, giving boys and girls equal access to the far superior gym, the expense account, and the team bus (or buying a second bus) would doubtless have been cheaper than defending the lawsuit.

A Question Left Open: Can Schools Be Liable for Retaliating Against Ultimately Erroneous Discrimination Claims?

Like many of Justice O’Connor’s carefully worded opinions, Jackson leaves open a number of unanswered questions. Yet these questions ultimately may have a greater real-world impact for discrimination claimants than even the Jackson ruling itself.

The biggest issue is how broadly Title IX’s protection against retaliation extends. How, for example, will courts treat a claimant who honestly, but erroneously, believed a Title IX violation had occurred? Is such a person still protected from retaliation?

There’s an important ambiguity here. Jackson says that retaliation is covered by Title IX because it is a form of intentional sex discrimination – by virtue of the fact that the underlying complaint was “about sex discrimination.” Does that mean a complaint must be based on actionable, unlawful sex discrimination in order to be retaliation-proof?

Or does that language simply mean the complaint must literally be “about sex discrimination” – meaning that the complaint relates to a concern about alleged (but not, in the end, actual) sex discrimination?

Justice O’Connor’s opinion does not resolve this important issue. In a footnote, Justice O’Connor notes that “[w]e agree with Justice Thomas that plaintiffs may not assert claims under Title IX for conduct not prohibited by the statute.” But that language is insufficient to tell us whether it is enough that the complainant honestly perceived sex discrimination, or whether that perception must be judged “reasonable,” with the limits on reasonableness set by courts’ own interpretations of the law.

Several Federal Appeals Courts Have Dismissed Retaliation Claims Based on Ultimately Erroneous Discrimination Claims

Consider another federal case, Peters v. Jenney – which involved Title IX’s sister statute, Title VI. There, the plaintiff was hired by a Virginia school district to serve as the director of the gifted program. The school had historically had problems with Title VI and was under investigation by the Office for Civil Rights. She thought she had uncovered a Title VI violation when she realized the program’s selection criteria yielded a disproportionately low number of African-American students. She made efforts to correct the problem on the school’s behalf, and, for her efforts, she was fired.

The Fourth Circuit allowed her retaliation claim, but said she could only prevail if the conduct she pointed to actually did violate Title VI. Only then, it held, could she have had a “reasonable belief” that there had been a violation. Under the law of Title VI, that meant she had to prove intentional discrimination – not simply disparate impact on the protected class (here, the African-American students). Yet intentional discrimination is notoriously hard to prove. No lawyer, much less a layperson, can predict with certainty whether a practice that unnecessarily disadvantages a protected class is based on an intent to discriminate.

That’s unfair: It might make sense to require a plaintiff to have a good-faith belief that discrimination occurred. But it is not fair to allow a plaintiff to legally suffer retaliation because, while she pointed to evidence of discrimination (here, the small number of African-Americans in gifted classes), that evidence did not, in the end, turn out to be enough.

A “Reasonable Belief” of Retaliation: A Misguided Requirement

Unfortunately, courts interpreting Title VII have similarly held that if a plaintiff isn’t right on the law, then retaliation against her is perfectly legal.

In Galdieri-Ambrosini v. National Realty & Development Corporation, for example, a female secretary complained that her employer assigned her duties based on gender stereotyping: For instance, she had to attend to her boss’s personal matters during work hours. After complaining to her employer, she said, she suffered retaliation.

But the U.S. Court of Appeals for the Second Circuit rejected her retaliation claim because it said she was wrong on the law: Title VII, according to the court, does not prohibit supervisors from giving secretaries “female-gendered” work or requiring them to assist them with personal matters.

In effect, this secretary was asked to be a lawyer – and a conservative one at that. (Many legal scholars have persuasively argued that Title VII should cover the assignment of gender-stereotyped work to persons in female-dominated jobs, and the devaluation of female-gendered jobs.)

The U.S. Court of Appeals for the Seventh Circuit reached a similar conclusion in Hamner v. St. Vincent. There, a male nurse claimed he was terminated for complaining of harassment based on his sexual orientation. But courts have held that Title VII does not prohibit sexual orientation discrimination, so even though the plaintiff thought the law was otherwise, the court rejected his retaliation claim. (Here too, legal scholars have made persuasive arguments agreeing with the plaintiff and a growing number, albeit a minority, of courts have begun to break down the distinction between sex and sexual orientation as a basis for discrimination.)

Even Complainants Who Turn Out to Be Wrong Should Be Protected from Retaliation

No layperson is likely to have a perfect understanding of the contours of discrimination law. After all, even lawyers often disagree in their interpretations of what discrimination law requires. So courts should not punish laypersons who bring good-faith retaliation claims just because they are mistaken about the law’s coverage.

Ironically, under Rule 11 of the Federal Rules of Civil Procedure, even attorneys can escape sanctions when they argue for a good-faith extension of the law. Certainly, laypersons should, if anything, have more leeway. If they do not, we may see an ugly trend of complainants who lose their cases because they did not have a perfect understanding of the law.

Imagine, for instance, that Coach Jackson had missed an important legal caveat to Title IX – say, the inequities between the girls’ and boys’ basketball programs were counter-balanced by similar inequalities that favored girls’ teams in other sports. In such circumstances, the overall athletic program would not violate Title IX, notwithstanding the coach’s good-faith belief otherwise. If the court had applied a reasonable belief standard, the coach’s good-faith attempt to protect his team members would have left him out in the cold. Such a result would chill persons from complaining of discrimination, regardless of the merits of the claim, since few people would be willing to bet their careers on their certainty of their knowledge of the law. That can’t be the right interpretation of a law that means to protect against discrimination, not encourage it!