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Legal Watch: Significant Supreme Court Employment Rulings
By Donna R. Euben
The U.S. Supreme Court in March answered affirmatively two legal queries percolating among the lower courts: Is retaliation actionable under Title IX of the Education Amendments, which prohibits discrimination in federally assisted education programs and activities? Can employees sue employers under the Age Discrimination in Employment Act for actions or policies that unintentionally fall more harshly (or have a "disparate impact") on employees over the age of forty? While neither case involved faculty, the rulings have implications for higher education.
The Title IX case was brought by Roderick Jackson, a high school basketball coach who was removed from his position, allegedly in retaliation for complaining about his all-girl team being denied equal funding and access to sports facilities and equipment. In Jackson v. Birmingham Board of Education, the Court ruled in a 5 to 4 decision that Title IX encompasses claims by individuals, including educators, who assert that they have been retaliated against because they complained about sex discrimination on behalf of their students. The decision notes that "if Title IX's private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied." In so ruling, the Court observed that "teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators." The Court remanded the case to a lower court for further fact-finding consistent with its reasoning.
As the U.S. Department of Education has recognized, professors are "in the best position to prevent harassment and to lessen the harm to students, if, despite their best efforts, harassment occurs." The Jackson decision provides additional protection and encouragement to the professoriate, especially nontenured faculty and academic professionals, in raising and reporting perceived discrimination without jeopardizing their job security.
The Supreme Court also resolved another contentious legal issue, ruling 5 to 3 in Smith v. City of Jackson that actions may be brought to challenge policies that have a disparate impact on older workers. The case involved older police officers who challenged the policy of Jackson, Mississippi, to provide more generous pay raises to officers with fewer than five years of service, many of whom were under the age of forty. The city argued that its policy was necessary to make it competitive in recruiting and retaining officers. The officers contended that the policy adversely affected older workers.
The Supreme Court held that older workers can bring such disparate impact suits under the Age Discrimination in Employment Act. However, the Court also found that the challenged policy in this case was "unquestionably reasonable" and, therefore, the older police officers lost their claim. Thus the Court established a new legal standard for such disparate impact cases: "While there may have been other reasonable ways for the city to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in disparate impact on a protected class, the reasonableness inquiry includes no such requirement." Some commentators have criticized the decision as "disparate impact lite," because the ruling allows claims but makes them harder to win than "traditional" disparate impact claims under Title VII of the Civil Rights Act.
Nevertheless, the Court ruling provides faculty the opportunity to challenge institutional policies that appear neutral but may have a disparate impact on older professors. The decision also contemplates the possibility that employers may bear a burden of proof in justifying practices that have such a disparate impact. Questions remain about how this ruling will apply to particular situations. For example, will courts find reasonable changes in university policies that abolish or reduce tuition remission benefits—changes that would appear to fall more harshly on faculty over the age of forty, who are likely to have college-age children? What about position advertisements for candidates with recent PhDs or with computer teaching skills, which are likely to have a disparate effect on older professors?
As is often the case in litigation, the devil is in the details. To ensure that gender and age discrimination is curbed, we will need to monitor carefully how lower courts apply these recent Supreme Court rulings to situations arising in the academic workplace.
Donna Euben is AAUP counsel.
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