Absinthe
Living my life as an exclamation, not an explanation...
It should be noted by readers that Absinthe is not a lawyer,
and anything posted in this blog should not be used as a
substitute for professional advice from a lawyer
Title IX, is the federal anti-discrimination law that protects people attending, studying at,or employed by any federally funded educational or research institute. That means pretty much all schools, universities, and national laboratories. It forbids discrimination based on race, gender, religion, etc. Importantly (at least to Absinthe), it is the only federal law that specifically forbids parental status discrimination .
Title IX is a great law, and it has been used to good effect to revolutionalize the collegiate athletic system to make it much more equitable to females. I love Title IX, and I wish it could be used a lot more often to revolutionize other areas of academia where women are woefully under-represented. Like the sciences and our national laboratories for instance.
In large part due to Debra Rolison's efforts, in 2002 Senators Barbara Boxer and Ron Wyden requested a General Accounting Office report on Title IX enforcement in federally funded research and educational programs in the sciences. The report found that Title IX enforcement in the sciences was woefully inadequate. Over a year after the report was published, Title IX enforcement appears to still be very inadequate.
I think that if the government is truly committed to reducing barriers to womens' participation in the sciences, they should cut the grant funding of institutes that consistently thumb their nose at laws and regulations. Hitting institutes like that in their research pocketbooks would do far more to almost instantaneously reduce discrimination in the sciences than any spate of individual lawsuits (like Absinthe's) ever could.
Anyway, on to the mechanics of Title IX: Unlike Title VII, Title IX does not require a Plaintiff to first file a complaint with the EEOC before any lawsuit can take place, In fact, the EEOC has nothing to do with Title IX cases. In addition, a very nice thing about Title IX is that the statute of limitations is a lot longer than that of Title VII (ie; two to three years, depending on where you live...consult a lawyer for more information on that). And a great thing about Title IX is that there are no caps on damages (unlike Title VII which caps at $300,000). Also, if the Plaintiff prevails in the lawsuit, she is entitled to be compensated for her attorney's fees.
However, there are pitfalls; the law concerning Title IX as it applies to employment discrimination cases is best described as "fluid". Some circuit courts hold that Title VII completely supercedes Title IX (which would imply that in an employment discrimination case you can only sue under Title VII), while others hold that you can sue under either or simultaneously sue under both. At some point the issue will be decided by the Supreme Court (and Absinthe dearly hopes that it is not her case that ends up having to go all the way to the Supreme Court to do that...no joke, it is a very real possibility).
Also, everything I mentioned in my previous post about 11th amendement immunity of state universities to federal statutes applies here. So, if you are employed by a state university, it is possible that you cannot bring suit against them if you have been discriminated against under Title IX. However, the case law on this is also "fluid". Consult a lawyer for more information.
9:43:44 PM
Title VII is the federal anti-discrimination law that applies to pretty much everyone working in the US (not just academics). Case law for Title VII has amazing breadth and depth.
Title VII has some disadvantages that really, in Absinthe's eyes, seem designed to totally protect employers rather than the people they discriminate against. For instance, Title VII has an incredibly short statute of limitations (6 months to a year, depending on what state you live in). My guess is that if you are going through a discriminatory situation at work that is so nightmarish that you are left with little choice but to sue, you really aren't going to be in any kind of mental shape to get your sh*t together enough to jump through all the hoops placed before you to bring a suit under Title VII.
Also, while we are on the topic of the Title VII statute of limitations, it is really, really important to keep in mind that university equity offices are there to serve the university, not you. Absinthe has heard way too many horror stories about university equity offices dragging their feet in addressing a discrimination or harassment problem, specifically to screw the the complainant out of her Title VII statute of limitations (and then to add insult to grievous injury, the equity office does bugger all to solve the problem in the end). Please, if you take nothing else away from this blog, be aware that university equity offices are not there to serve the complainants...they are there to protect the university. Go through the standard complaint procedures at your university, but also simultaneously file a complaint with the EEOC to protect your statute of limitations if you feel that your problem is serious enough to likely warrant a lawsuit.
Getting back to the aforementioned Title VII hoops; before you are allowed to bring suit under Title VII, you first have to file a complaint with the
Equal Employment Opportunity Commision (EEOC). The EEOC, after what are usually excruciatingly long delays, will review your case. According the to the EEOC web-site, around 50% of the time (or more) they simply dismiss the charge as not having enough evidence, and you aren't allowed to sue (!). Around 40% or so of cases are issued a "right-to-sue" letter, and then you then have 90 days to file suit under Title VII in federal court. In a very small fraction of cases (like 5% or less), the EEOC will actually sue your employer on your behalf. The EEOC will usually only do this when the case has so much smoking gun evidence that winning it is like shooting fish in a barrel. They like to keep their success rate high. It looks good on paper.
The other thing that totally sucks about Title VII is that it caps awards for compensatory damages at $300,000. If you are an academic and you've been discriminated against to the point that the career you have nurtured for decades is now in ruins, do you think $300,000 cuts it as appropriate compensation? Not.
One of the good things about Title VII is that if the Plaintiff prevails in the lawsuit, she is entitled to compensation for her attorney's fees.
One more thing; as mentioned in the previous post, if you are employed by a state university, you may not be able to bring a discriminaton lawsuit against them in federal court under Title VII because of the 11th amendment. Consult a lawyer for more information.
9:39:08 PM
Before I talk about federal anti-discrimination laws and how they apply to academia, I would be remiss in not pointing out the 11th Amendment; if you are someone who works for a state university, and if you are thinking of filing a federal discrimination lawsuit under Title VII or Title IX, the the 11th amendment to the US consistitution is something you will likely have to contend with.
The 11th amendment essentially makes "non-consenting" states immune from federal lawsuits that seek monetary damages. "Non-consenting" means that it is up to the state to decide whether or not they want to be sued under federal law. Gee, how many states do you figure actually consent to be sued under federal law?
Now, case law on this is very fluid, and you should definitely consult a lawyer if you need more in-depth information, but most federal discrimination lawsuits brought under Title VII or Title IX against a state university will have the issue of 11th amendment immunity brought up because the university is considered a state entity (or would like itself to be considered a state entity). The Department of Justice (look down near the bottom in this link) has been attempting to crack down on states trying to weasel out of having to abide by federal laws.
However, if you do work for a state university and have been discriminated against, you should check that you are actually employed by the university itself, rather than, for instance, the university research foundation. Most research universities have some kind of research foundation associated with them, and the research foundation is a private corporation specifically designed to keep the monies that might be generated by the university's research (ie; patents and all that) separate from the main coffers of the university. There are probably other esoteric reasons for the existence of these foundations that Absinthe doesn't know about.
Anyway, employees of a research foundation of a state university can sue under Title VII and Title IX because research foundations are private corporations, not a public entity of the state.
If you work for a state university, but not the research foundation (and have been discriminated against to the point where you feel you have no choice but to sue), a good option for you might be to bring a suit in state court under state anti-discrimination laws. All states have them, and some are better and more comprehensive than others. Check with a lawyer for what laws apply in your state. Lawsuits brought in state court have some advantages; for instance, state anti-discrimination laws sometimes have a longer statute of limitations than their federal counterparts, and they also may have no caps on damages. Check with a lawyer.
