Retaliation Lawsuits: A Legal Issue for Athletics Programs
By Lee Green
In July 2007, a jury awarded $5.85 million to Lindy Vivas, former Fresno (California) State University head women's volleyball coach, who had sued the school under Title IX alleging that the nonrenewal of her coaching contract was a retaliatory action in response to her complaints about the school's treatment of women's sports teams. The outcome of the case, application of a retaliation cause of action to protect those who complain of sex discrimination, and the size of the award - $1.75 million more than the $4.1 million Vivas had requested in the suit - highlight the need for school administrators to re-examine policies regarding response to and resolution of Title IX complaints.
The threshold issue in such policy revision is to identify the types of actions by school districts that might be considered retaliatory and the contexts in which claims of retaliation are most likely to arise. Consider the following five hypotheticals and the analysis as to whether, based on currently prevailing legal standards, retaliation has occurred in each scenario.
Hypothetical One: The coach of a girls high school softball team is fired after repeatedly complaining to the school's athletics director and principal about the fact that the girls team does not receive funding equal to the boys baseball team and that the girls team is being denied benefits equal to that of the boys team with regard to uniforms, equipment, facilities, travel, practice time, publicity and other components of program support. Does the removal of the coach constitute retaliation despite the fact that the coach was not the direct victim of sex discrimination and was instead a third-party complainant on behalf of other individuals (the players) who were the direct victims?
Legal Analysis: The U.S. Supreme Court's 2005 decision in Jackson v. Birmingham Board of Education is directly on point. Roderick Jackson, head girls basketball coach at Ensley High School in Birmingham, Alabama, was dismissed from his coaching position after complaining to superiors about the unequal treatment of his team. Although the Title IX statute does not expressly mention retaliation, the Supreme Court concluded that a retaliation cause of action is implied in Title IX and that retaliation in any form is prohibited not just against the direct victims of sex discrimination in educational settings, but also against any individual who has complained about the occurrence of such discrimination.
The Court held that in evaluating a retaliation claim under Title IX, the appropriate standard was that incorporated into Title VII of the Civil Rights Act of 1964 which prohibits discrimination by employers and expressly provides for a retaliation claim where an employee suffers an adverse employment action because of the employee's opposition to discriminatory activity.
Modifying the Title VII paradigm to fit the educational context of Title IX, the Court decided that a prima facie case for retaliation is established by showing that the alleged retaliator took action disadvantageous to the plaintiff and that a retaliatory motive played a substantial part in prompting that adverse action. Therefore, as did Roderick Jackson following the Court's ruling, the softball coach in Hypothetical One would have legal recourse both to the express retaliation provisions of Title VII and the implied retaliation provisions of Title IX.
Hypothetical Two: A high school athletic director recognizes deficiencies in his program's compliance with Title IX regarding sports participation opportunities and other athletics benefits for girls. Motivated both by the desire to do the right thing and by the intent to comply with the legal mandates of Title IX, the athletic director repeatedly presents a strategic plan to district personnel to remedy the inequities. Over a several-year period, this input is ignored with the only feedback being expressions of growing consternation by district personnel at the athletic director's continuing insistence that a Title IX problem exists. Does the continuing inaction by the district constitute unlawful retaliation against the athletic director? Does an ongoing pattern of behavior by a school district in ignoring complaints about discrimination rise to the level of retaliation against the individual who repeatedly files those complaints to no avail and who is in essence being forced to work within and continue to perpetrate a discriminatory system?
Legal Analysis: In Ross v. Mercer University, a U.S. District Court stated that "various courts have held that deliberately harmful inaction may equal a disadvantageous action for the purposes of retaliation" and that "numerous courts have held that Title VII protects employees from employers who condone and encourage discrimination by failing to investigate and remedy it." Although other courts have ruled that retaliation occurs only when the school inflicts tangible adverse consequences on the complainant, school administrators should err on the side of caution and avoid ignoring Title IX complaints or delaying the implementation of remedies when allegations of discriminatory behavior are lodged.
Hypothetical Three: A female basketball player repeatedly complains to her coach, athletic director, principal and various district personnel about the lack of equal benefits between the girls basketball team and the boys team. She is then suspended from the team for disruptive behavior. Was the player's dismissal from her team a form of unlawful retaliation under Title IX?
Legal Analysis: Based on Jackson v. Birmingham Board of Education, the suspended player would have access to the protections against retaliation implied in the Title IX statute. Her retaliation claim, given that she is a direct victim of the discriminatory conditions, is even stronger than was the claim of Roderick Jackson, who was a third-party complainant reporting discrimination against his team members.
Hypothetical Four: A cheerleader complains to the high school athletic director that a young assistant football coach has been "hitting on her." The athletic director talks to the coach and warns him to be careful about his interaction with the girl. The athletic director does not believe the situation is serious enough to warrant filing a report about the incident with his school district's Title IX reporting officer pursuant to the district's sexual harassment policy. The coach's behavior continues and escalates. Several months later, a hostile environment sexual harassment lawsuit is filed by the cheerleader and one of the claims in the suit is an allegation of retaliation. Did the athletic director's failure to file a report regarding the cheerleader's disclosure to him and the resulting lack of any investigation constitute retaliation against the young woman?
Legal Analysis: Based on the U.S. Supreme Court's decision in Gebser v. Lago Vista ISD, Title IX is violated when an individual in a position to take remedial action regarding teacher-student sexual harassment exhibits deliberate indifference that allows the harassment to continue. Combined with the holding in Jackson v. Birmingham that a retaliation cause of action is implied in Title IX, the cheerleader has a strong argument that the athletic director's failure to report her claims and the school's failure to investigate resulted in adverse consequences for her (the ongoing sexual harassment by the coach) rising to the level of retaliatory behavior.
Hypothetical Five: A high school wrestling coach hears rumors that upperclassmen on his team have been hazing freshman team members. The coach reminds his team captains that, although he appreciates their efforts in initiating team-building activities, hazing is prohibited by school policy. The coach believes that his talk with the captains will be sufficient to prevent any further problems and the coach does not file a report with the school district's Title IX reporting officer pursuant to the district's anti-hazing policy. Several months later, a hazing civil suit is filed by several of the freshmen and it is revealed during pretrial discovery that, subsequent to the coach's talk with the captains, a hazing incident occurred during which the freshmen were sodomized with foreign objects. Did the coach's failure to file a report and the resulting lack of any investigation constitute retaliation against the hazing victims?
Legal Analysis: In Davis v. Monroe County Board of Education, the U.S. Supreme Court held that Title IX is violated by deliberate indifference to the sexual harassment of a student by another student. In Oncale v. Sundowner Offshore Services, the Supreme Court ruled that sexual harassment is actionable even when perpetrated by someone of the same gender as the victim. Combined with the holding in Jackson v. Birmingham that a retaliation cause of action is implied in Title IX, the hazing victims have a strong argument that the coach's failure to report and the school's failure to investigate resulted in adverse consequences for them (the ensuing sexual battery) rising to the level of retaliatory behavior.
In summary, school districts place themselves at risk for retaliation claims not only when adverse actions are taken against school employees who report Title IX violations related to sports participation and benefit inequities (Hypothetical One), but also in instances when such reports by school employees are ignored (Hypothetical Two), when student-athletes are sanctioned for complaining of discriminatory practices (Hypothetical Three), when student-athletes are the victims of sexual harassment (Hypothetical Four), and when student-athletes are the victims of hazing (Hypothetical Five).
Lee Green is an attorney and a professor at Baker (Kansas) University, where he teaches courses in sports law, business law and constitutional law. He may be contacted at Lee.Green@BakerU.Edu.
