Clash of the Titles

Originally published by Paige Melendez.

Beginning in January 2020, the state of Texas increased the number of people who are considered “mandatory reporters” under Title IX. The mandatory reporters are tasked with immediately reporting Title IX related incidents like dating violence and stalking when they become aware of it. If a mandatory reporter fails to make this report, they are subject to criminal and employment penalties. When this law went into effect, it was looked at as a great step forward in universities combatting sexual violence on their campuses by tasking more people with reporting duties and having penalties for those who do not. Sexual violence, dating violence, and stalking have always been huge issues on college campuses, and it is only recently that the law has made a stride to try and close out loopholes in university reporting requirements. The flip side is that not reporting or being named in a Title IX complaint can have adverse consequences on a person’s employment. These adverse consequences are where Title IX and Title VII clash, and the fall-out can have damaging effects on both. 

 

Recently, a professor filed an action claiming in his lawsuit that one of the adverse employment actions taken against him was a filing of a Title IX complaint. An adverse employment action is considered to be an action that affects the terms and conditions of someone’s employment. To be fair, a Title IX complaint can have adverse consequences for an accused person and may very well be an adverse employment action. However, one of the problems that is brought up when it comes to survivors of sexual violence and increased reporting is the alleged problem of false reporting. If the court finds that someone filing a Title IX complaint against a university employee can be an adverse action it impacts the effectiveness of the increased reporting requirements under Title IX. Then, any employee of a university could claim an adverse action because of a Title IX complaint and potentially make universities wary of survivors’ filing complaints. Further, claiming a real complaint against an employee is an adverse action casts doubt on that survivor and potentially hampers any investigation into the matter.

On the other hand, if a person were to make a false complaint about a university employee it could have real consequences for that employee. For example, a tenured professor could be “forced to retire” or terminated, or a complaint against a male professor could result in an adverse consequence that is not there when a complaint is made against a female professor. Title VII would then step in, in those cases, to protect those people from potentially false claims against them. Preventing these complaints from being considered an adverse action would hinder Title VII’s enforcement of non-discrimination laws. Then, an employer like a university could claim that a false complaint is not an adverse action and instead is a legitimate, non-discriminatory reason, leaving the employee without a remedy for discrimination because of Title IX.

But in briefly outlining those two opposite points, it becomes clear that the end result of Title VII and Title IX may very well be at odds when it comes to the increased reporting requirements and what is considered an adverse employment action. While this article does not choose sides as to which result is better or what the result “should” be, it is meant to evoke a conversation about: What happens when laws have different protection goals? Which goals should we prioritize? At the end of a lawsuit, what are the lasting changes to the body of law? Should we even care about the future results, if the current results are positive for one body of law? Is it our job to worry about cross-law impacts? Unfortunately, there are no answers to these questions that are easily attainable, but it’s always best to start the conversation early so everyone can move forward conscientiously as we follow the evolution of these laws.

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