Additional Remarks on the Recent DOE Warning About Retaliation

The United States Department of Education (DOE) issued a new “Dear Colleague” letter on April 24th, 2013, reminding educational institutions that retaliation against those who file informal or formal complaints regarding sexual harassment or other civil rights violations is a violation of federal law.

(This is the third “Dear Colleague” letter issued to clarify the DOE’s interpretation of Title IX enforcement in relation to sexual harassment. The release of the second “Dear Colleague” letter on April 4, 2011 marks the point at which the Office of Civil Rights (OCR) began requiring that grievance procedures use just a “preponderance of evidence” — the “more likely than not” standard used in civil cases, rather than the stricter “clear and convincing” requirement used in criminal cases.)

The most recent “Dear Colleague” letter (DCL) was released in the wake of recent Title IX retaliation suits filed by students and employees at several universities, including the University of North Carolina at Chapel Hill, Swarthmore College, Occidental University, and Yale University. The OCR has indicated that it will vigorously enforce the prohibition against retaliation, and points out that the letter unambiguously broadens the scope of what can be counted as retaliation via a parenthetical remark that lies at the heart of the letter:

“… once a student… complains formally or informally to a school… the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation.”

According to the OCR, what needs to be shown to establish a case of retaliation is: (1) that the complainant engaged in “protected conduct” (by, e.g., making an informal or formal complaint about civil rights violations); (2) the complainant suffered a “materially adverse” action (including intimidating, threatening, coercing, or in any way discriminating against the individual), where a “materially adverse” action is defined as “any action that is likely to dissuade a reasonable person in the complainant’s position from exercising her legal rights”; and (3) that there is sufficient evidence to prove that the materially adverse consequence was related to the protected action.

In other words, any action that would dissuade a reasonable person from complaining constitutes retaliation, assuming that a link between the action and protected conduct can be established.

In addition to requiring that universities protect complainants from retaliation by the recipient, Title IX also requires that universities protect complainants from retaliation by the recipient’s associates. This requirement is made explicit in the April 4 2011 DCL:

“Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged perpetrator may subject the complainant to name-calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. At a minimum, schools must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.”

One of the more interesting and recent test cases is a 2012 U.S. Ninth Circuit Court appellate review of a Title IX retaliation suit filed by a graduate student at the University of Oregon, who alleged that the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. The Ninth Circuit Court of Appeals ruled in her favor, reasoning that: she engaged in protected conduct when she sent a memo to the department summarizing graduate students’ complaints about gender bias in the department; the resignation of her dissertation committee chair was an action that “might have dissuaded a reasonable [person] from making or supporting a charge of discrimination”; and there was sufficient reason to think that the action was related to the conduct, based on the timing of the resignation, the fact that the faculty member knew about her complaint, the fact that he had praised her work in the past, the fact that he did not help her secure a replacement chair, and the fact that he had exhibited gender bias in other contexts.

Noncompliance with the prohibition against Title IX retaliation, according to the April 24 2013 DCL letter, may result in fines, loss of federal financial assistance, redress for the complainant including “monetary relief”, legal proceedings against the university, and remediation such as required training for employees of the university about how to avoid engaging in retaliation.

Title IX complaints typically must be filed with the OCR within 180 days of the incident — though there are some established exceptions (e.g., a case that involves wrongful termination), and multiple complainants may file a case that includes older incidents if at least one of the related incidents is within the requisite time frame.

3 thoughts on “Additional Remarks on the Recent DOE Warning About Retaliation

  1. I think that this analysis is excellent and captures the current OCR interpretation well.

    As Professor Lockwood is surely aware, one criticism of this interpretation is that it is overly broad. For example, about this –

    “In other words, any action that would dissuade a reasonable person from complaining constitutes retaliation, assuming that a link between the action and protected conduct can be established.”

    – some worry that an apology to a complainant for misconduct counts as retaliation on this interpretation. An apology is “materially adverse” according to the expansive definition of “materially adverse” put forward by OCR.

  2. It’s worth noting that protected conduct includes one’s right to be a witness in a Title IX investigation. Just as the recipient and associates cannot retaliate against a complainant, neither can they retaliate against those who speak with investigators and/or testify against the recipient.

    I think this point is worth mentioning because speaking with investigators at all can be risky, and it’s good for witnesses to know that they have a right to file Title IX retaliation complaints as well, should the need arise.

  3. Please note that a person can be retaliated against who did not engage in a “protected activity”
    In Jan 2012, Suprm Court, Thompson vs N Amer Stainless, Title VII Action, ruled a fiancé that did not complain of discrimination, was protected because his fiancé did, and he was fired based on his “association”.
    Not to be confused with “third party retailation”- where a complaint is lodged for another party. In this case no complaint is ever made.

    Although this was aTitle VII case, case law has consistently applied Title VII to Title IX. In fact in Bigge vs School Board of Citrus County, court ruled precisely that.

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