​In our last post, we detailed the Title IX case of Shannon Miller, who used to coach women's hockey at the University of Minnesota-Duluth (UMD). When her coaching contract was not renewed, she filed a lawsuit against UMD, alleging that her non-renewal was in retaliation for her Title IX discrimination claim against the school. She won $4.21 million in back and front pay, as well as emotional distress.

The case, however, highlights how tiny differences in a Title IX discrimination claim can make a massive change to the outcome.

Title IX v. Title VII: Discrimination on Basis of Sexual Orientation

An interesting piece to the case is how Ms. Miller, and the two other UMD coaches who originally filed the lawsuit, claimed discrimination under both Title IX and Title VII for both gender discrimination – they were all women – and for sexual orientation discrimination – they were all lesbian.

In essence, Title VII is for employment law what Title IX is for higher education law – both prohibit discrimination based on gender, race, religion, or other protected class. However, Title VII does not explicitly cover claims for discrimination based on sexual orientation, and only the Seventh Circuit – covering Indiana, Illinois, and Wisconsin – has extended Title VII protections to gays and lesbians.

This produced a strange outcome in the case against UMD: The claims for sexual orientation discrimination under Title IX survived an early motion for summary judgment, while an identical claim under Title VII was thrown out. Meanwhile, both claims for gender discrimination survived, though they were much weaker.

Title IX v. Title VII: Damages in “Mixed Motive” Cases

Titles IX and VII are also very different when you look at how cases progress when alleged discrimination had a “mixed motive” – the action was discriminatory, but also had another motive behind it, as well.

For example, in the case of Ms. Miller, the jury found that there was a “mixed motive” in the non-renewal of her contract: She was lesbian, which was the discriminatory motive, but she was also coming off four straight mediocre years as the coach of the women's hockey team.

In Title VII cases that involve discriminatory actions with a “mixed motive,” the plaintiff can only be awarded attorneys' fees and a declaratory action – a judicial statement that the plaintiff was discriminated against, and nothing more.

The damages available in Title IX cases, though, are not affected by a “mixed motive.” Even if the university can show that the result would have been the same, without the discriminatory motive, the plaintiff can still recover damages from the university, like reinstatement or lost wages. This was precisely the case with Ms. Miller, whose Title IX claim for discrimination against her sexual orientation won the day, while her Title VII claim failed.

Title IX Defense Lawyer Joseph D. Lento

The massive differences for nearly identical claims under Titles IX and VII highlight just how fickle the laws can be, and the need to reform to the enforcement structure. Equal rights in higher education are important, but Title IX muddies the water more often than it leads to justice.

Joseph D. Lento is a national Title IX defense lawyer who defends students accused of sexual misconduct on campus in addition to other concerns where justice is at issue. Contact him online or call him at (888) 535-3686.