Eleventh Circuit Holds That Title IX Does Not Provide Private Right of Action for Sex-Based Employment Discrimination

Quick Hits

• The Eleventh Circuit Court of Appeals ruled in Terrell v. Alabama State University that Title IX does not provide an implied right of action for sex discrimination in employment.
• The court vacated and remanded the plaintiff’s sex discrimination claims under the Equal Pay Act and Clarke-Figures Equal Pay Act for further proceedings, citing an incorrect analytical framework applied by the district court.
• The decision deepens a split with other circuits that have held Title IX provides a cause of action for employment discrimination, potentially prompting review by the Supreme Court of the United States or legislative clarification.

The court wrote that:

• The Supreme Court of the United States has never extended Title IX’s implied private right of action to employment discrimination claims.
• The U.S. Congress likely did not intend Title VII and Title IX to provide overlapping employment discrimination remedies.
• While Title IX provides an implied right of action for students, it does not extend to sex discrimination claims of nonstudent employees of educational institutions.

Background

The plaintiff, Sha’ola Terrell, served as the senior associate athletic director for internal operations at Alabama State University (ASU) from October 2018 to September 2021. In addition to this role, she was designated as the “Senior Woman Administrator,” a leadership position intended for the highest-ranking female involved in the management of an intercollegiate athletics program. Terrell alleged that she had a history of complaining about not being compensated for the senior woman administrator role, which had a line item in ASU’s budget for $15,000 in 2019 and $10,000 in both 2020 and 2021. She claimed to have sent a memo to Dr. Jason Cable, ASU’s athletic director, in August 2021, asking to be paid the budgeted amount for that role.

Dr. Cable decided to restructure the department, which led to the elimination and revision of the positions of senior associate athletic director of internal operations, held by Terrell, and deputy athletic director, held by a male employee, Terrance Jones. Neither Terrell nor Jones was reappointed on September 15, 2021.

Terrell sued ASU, alleging sex discrimination and retaliation under the Equal Pay Act (EPA) and the Clarke-Figures Equal Pay Act (CFEPA), and sex discrimination under Title IX. The district court granted summary judgment to ASU on all claims, and with its decision, determined that there were no genuine issues of material fact and applied the elements of each cause of action to the underlying claims. Terrell appealed to the Eleventh Circuit.

The Eleventh Circuit’s Decision and Rationale

The Eleventh Circuit affirmed the district court’s grant of summary judgment for ASU on Terrell’s Title IX and retaliation claims. However, it vacated and remanded her sex discrimination claims under the EPA and CFEPA for further proceedings.

The Eleventh Circuit held that Title IX does not provide an implied right of action for sex discrimination in employment, basing its decision on its recent November 2024 holding that the Supreme Court had “never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions.”

The November 2024 decision followed the Supreme Court’s precedent and reasoning in opinions handed down in 1979 and 1982 that Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 offered distinct and nonoverlapping remedies for students and employees of educational institutions. The Eleventh Circuit rejected Terrell’s arguments that its November 2024 decision was inconsistent with Supreme Court precedent and contrary to the text of Title IX.

The Eleventh Circuit also held that Terrell’s evidence was insufficient to establish a causal connection between her alleged complaints and ASU’s decision not to reappoint her. The court noted that ASU made the same decision not to reappoint Jones, a male colleague, because both of their positions were being restructured within the athletic department. Consequently, the court found no triable fact issue of but-for causation as to Terrell. The Eleventh Circuit vacated and remanded Terrell’s sex discrimination claims under the EPA and CFEPA due to the district court applying an incorrect three-step burden-shifting test.

Circuit Split Regarding Actionability of Employment Discrimination Claims Under Title IX

The Eleventh Circuit’s recent decisions joining the Fifth and Seventh Circuits in holding that Title IX does not provide an implied private right of action for sex discrimination in employment have created a further split with the First, Third, Fourth, Sixth, and Ninth Circuits, which have held that sex discrimination claims are actionable under Title IX. The Second, Eighth, and Tenth Circuits have not directly addressed the issue but have suggested in dicta or in unpublished opinions that Title IX may provide a cause of action for employment discrimination.

Lessons to Be Learned

The Eleventh Circuit’s decisions indicate that nonstudent employees of Alabama, Florida, and Georgia educational institutions who allege sex discrimination in employment will have to pursue their employment discrimination claims under Title VII, rather than Title IX. This is because Title VII provides an express private right of action for employees who allege discrimination on the basis of sex, as well as other protected characteristics, and has a more developed body of case law and procedural rules than Title IX. Title IX, on the other hand, provides an implied right of action for students who suffer discrimination on the basis of sex in educational programs or activities that receive federal funds and has a more limited scope and application than Title VII.

The Eleventh Circuit’s decisions have deepened a split with several other circuits that have held that Title IX provides a cause of action for employment discrimination. This split may invite the Supreme Court to grant certiorari and resolve the issue, or the Eleventh Circuit to reconsider its decision en banc. Alternatively, Congress may amend Title IX to clarify its scope and application to employment discrimination claims.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will provide updates on the Employment Law, Higher Education, and State Developments blogs as additional information becomes available.

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