Sex Discrimination and the United States
Supreme Court: Developments in the Law
Jody Feder
Legislative Attorney
January 6, 2012
Congressional Research Service
7-5700
www.crs.gov
RL30253
CRS Report for Congress
Pr
epared for Members and Committees of Congress

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Sex Discrimination and the United States Supreme Court: Developments in the Law

Summary
In its sex discrimination decisions, the United States Supreme Court not only has defined the
applicability of the equal protection guarantees of the Constitution and the nondiscriminatory
policies of federal statutes, but also has rejected the use of gender stereotypes and has continued
to recognize the discriminatory effect of gender hostility in the workplace and in schools. This
report focuses on sex discrimination challenges based on: the equal protection guarantees of the
Fourteenth and Fifth Amendments; the prohibition against employment discrimination contained
in Title VII of the Civil Rights Act of 1964; and the prohibition against sex discrimination in
education contained in Title IX of the Education Amendments of 1972. Although this report
focuses on recent legal developments in each of these areas, this report also provides historical
context by discussing selected landmark sex discrimination cases.
Despite the fact that the Court’s analysis of sex discrimination challenges under the Constitution
differs from its analysis of sex discrimination under the two federal statutes discussed in this
report, it is apparent that the Court is willing to refine its standards of review under both schemes
to accommodate the novel claims presented by these cases. The Court’s decisions in cases
involving Title VII and Title IX are particularly noteworthy because they illustrate the Court’s
recognition of sexual harassment in both the workplace and the classroom.
During the recent 2010-2011 term, the Court issued rulings in two high-profile cases involving
claims of sex discrimination in employment. In Thompson v. North American Stainless, which
involved a retaliation claim by a man who was fired three weeks after his then-fiancée filed a sex
discrimination complaint, the Court determined that Title VII of the Civil Rights Act protects
third parties who have not personally engaged in protected activity from retaliation by employers.
In Wal-Mart Store v. Dukes, the Court rejected class action status for current and former female
Wal-Mart employees who allege that the company has engaged in discrimination regarding pay
and promotions.

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Sex Discrimination and the United States Supreme Court: Developments in the Law

Contents
Equal Protection Cases .................................................................................................................... 1
Title VII of the Civil Rights Act of 1964 ......................................................................................... 6
Disparate Treatment and Disparate Impact ............................................................................... 7
Pregnancy Discrimination ......................................................................................................... 7
Gender Stereotypes.................................................................................................................... 9
Mixed Motives........................................................................................................................... 9
Sexual Harassment .................................................................................................................. 10
Same-Sex Sexual Harassment ................................................................................................. 10
Employer Liability................................................................................................................... 11
Retaliation................................................................................................................................ 14
Class Action Status .................................................................................................................. 15
Title IX of the Education Amendments of 1972 ............................................................................ 16

Contacts
Author Contact Information........................................................................................................... 20

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Sex Discrimination and the United States Supreme Court: Developments in the Law

n its sex discrimination decisions, the United States Supreme Court not only has defined the
applicability of the equal protection guarantees of the Constitution and the nondiscriminatory
I policies of federal statutes, but also has rejected the use of gender stereotypes and has
continued to recognize the discriminatory effect of gender hostility in the workplace and in
schools. This report focuses on sex discrimination challenges based on the equal protection
guarantees of the Fourteenth and Fifth Amendments;1 the prohibition against employment
discrimination contained in Title VII of the Civil Rights Act of 1964;2 and the prohibition against
sex discrimination in education contained in Title IX of the Education Amendments of 1972.3
Although this report focuses on recent legal developments in each of these areas, this report also
provides historical context by discussing selected landmark sex discrimination cases.
Equal Protection Cases
Constitutional challenges that allege discrimination on the basis of sex are premised either on the
equal protection guarantees of the Fourteenth Amendment or the equal protection component of
the Fifth Amendment. To maintain an equal protection challenge, government action must be
established; that is, it must be shown that the government, and not a private actor, has acted in a
discriminatory manner. While the Fourteenth Amendment prohibits discriminatory conduct by the
states, the Fifth Amendment forbids such action by the federal government.
The Fourteenth Amendment provides, in relevant part: “No state shall make or enforce any law
which shall abridge the privileges or immunities of the citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”4
Although the Fourteenth Amendment requires equal protection, it does not preclude the
classification of individuals. The Court has noted that the Constitution does not require things
which are “different in fact or opinion to be treated in law as though they were the same.”5 A
classification will not offend the Constitution unless it is characterized by invidious
discrimination.6 The Court has adopted three levels of review to establish the presence of
invidious discrimination:
1. Strict scrutiny. This most active form of judicial review has been applied where
there is either a suspect classification, such as race, national origin, or alienage,
or a burdening of a fundamental interest such as privacy or marriage. A
classification will survive strict scrutiny if the government can show that it is
necessary to achieving a compelling interest.7 Generally, statutory classifications
subject to strict scrutiny are invalidated.

1 U.S. Const. amend. XIV, §1; U.S. Const. amend. V.
2 42 U.S.C. §§2000e et seq.
3 20 U.S.C. §§1681 et seq.
4 U.S. Const. amend. XIV, §1 (emphasis added).
5 Tigner v. Texas, 310 U.S. 141, 147 (1940).
6 See Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).
7 See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
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2. Intermediate scrutiny. This level of review is not as rigorous as strict scrutiny. A
classification will survive intermediate scrutiny if it is substantially related to
achieving an important government objective.8 Sex classifications are subject to
intermediate scrutiny.
3. Rational basis review. This least active form of judicial review allows a
classification to survive an equal protection challenge if the classification is
rationally related to a legitimate government interest.9 This level of review is
characterized by its deference to legislative judgment. Most economic regulations
are subject to rational basis review.
The Court’s adoption of intermediate scrutiny for sex classifications did not occur until 1976. In
Craig v. Boren, the Court declared unconstitutional an Oklahoma statute that prohibited the sale
of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18.10
Females between the ages of 18 and 21, however, were allowed to purchase 3.2% beer. Although
the Court agreed with the state’s argument that the protection of public health and safety is an
important government interest, it found that the gender classification employed by the statute was
not substantially related to achieving that goal. The statistical evidence presented by the state to
show that more 18 to 20-year-old males were arrested for drunk driving and that males between
the ages of 17 and 21 were overrepresented among those injured in traffic accidents could not
establish that the statute’s gender classification was substantially related to ensuring public health
and safety.
In establishing an intermediate level of review for sex classifications, the Craig Court identified
what has been a common theme in sex discrimination cases under the Fourteenth Amendment:
stereotypes and generalizations about the sexes.11 In Craig, the Court acknowledged its previous
invalidation of statutes that premised their classifications on misconceptions concerning the role
of females. The Court’s rejection of the use of stereotypes may be seen in many of the cases in
this area.12 The Court’s more recent decisions similarly allude to the use of stereotypes and
generalizations.
For example, in J.E.B. v. Alabama, the Court determined that the state could not use its
peremptory challenges to exclude male jurors in a paternity and child support action.13 In

8 See Craig v. Boren, 429 U.S. 190, 197 (1976). In U.S. v. Virginia, the Court required the Commonwealth of Virginia
to provide an “exceedingly persuasive justification” for its policy of maintaining an all-male military academy. 518
U.S. 515 (1996). It is unclear whether this standard differs from the intermediate scrutiny standard of review. See infra
text accompanying notes 16-34.
9 See Lindsley v. Nat’l Carbonic Gas Co., 220 U.S. 61 (1911); Royster Guano Co. v. Virginia, 253 U.S. 412 (1920);
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976);
Maher v. Roe, 432 U.S. 464 (1977).
10 429 U.S. 190 (1976).
11 Id. at 198.
12 See, e.g., Califano v. Goldfarb, 430 U.S. 199 (1977) (invalidating section of the Social Security Act that permitted
survivors’ benefits for widowers only if they were receiving half of their support from their wives); Orr v. Orr, 440
U.S. 268 (1979) (invalidating Alabama statute that imposed alimony obligations on husbands, but not wives); Caban v.
Mohammed, 441 U.S. 380 (1979) (invalidating New York statute that required the consent of the mother, but not the
father, to permit the adoption of an illegitimate child); Mississippi University for Women v. Hogan, 458 U.S. 718
(1982) (invalidating policy of a state-supported university that limited admission to its nursing school to women on the
grounds that it reinforced traditional stereotypes).
13 511 U.S. 127, 129 (1994).
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reaching its conclusion, the Court reviewed the historical exclusion of women from juries because
of the belief that women were “too fragile and virginal to withstand the polluted courtroom
atmosphere.”14 In J.E.B., the Court questioned the state’s generalizations of male jurors being
more sympathetic to the arguments of a father in a paternity action and female jurors being more
receptive to the mother. The Court maintained that state actors who exercise peremptory
challenges in reliance on gender stereotypes “ratify and reinforce prejudicial views of the relative
abilities of men and women.”15 The Court feared that this discriminatory use of peremptory
challenges not only would raise questions about the fairness of the entire proceeding, but also
would create the impression that the judicial system had acquiesced in the denial of participation
by one gender.
In U.S. v. Virginia, the Court conducted a more searching form of intermediate scrutiny to find
unconstitutional the exclusion of women from the Virginia Military Institute (VMI).16 Although
the Court reiterated that a classification must be substantially related to an important government
interest, the Court also required the state to establish an “exceedingly persuasive justification” for
its actions.17
Virginia advanced two arguments in support of VMI’s exclusion of women: first, the single-sex
education offered by VMI contributed to a diversity of educational approaches in Virginia;
second, VMI employed a unique adversative method of training that would be destroyed if
women were admitted.
After reviewing the history of Virginia’s educational system, the Court concluded that VMI was
not established or maintained to promote educational diversity. In fact, VMI’s “historic and
constant plan” was to offer a unique educational benefit to only men,18 rather than to complement
other Virginia institutions by providing a single-sex educational option. Further, the Court
recognized Virginia’s historic reluctance to allow women to pursue higher education. Any interest
Virginia had in maintaining educational diversity seemed to be “proffered in response to
litigation.”19
In addressing Virginia’s second argument, the Court expressed concern over the exclusion of
women from VMI because of generalizations about their ability. While acknowledging that most
women would probably not choose the adversative method, the Court maintained that some
women had the will and capacity to succeed at VMI. Following J.E.B., the Court cautioned state
actors not to rely on overbroad generalizations to perpetuate patterns of discrimination. While the
Court believed that the adversative method did promote important goals, it concluded that the
exclusion of women was not substantially related to achieving those goals.
After determining that VMI’s exclusion of women violated the Fourteenth Amendment, the Court
reviewed the state’s remedy, a separate program for women. Virginia established the Virginia
Women’s Institute for Leadership (VWIL) following the adverse decision of the court of appeals.
Unlike VMI, VWIL did not use the adversative method because it was believed to be

14 Id. at 132.
15 Id. at 140.
16 518 U.S. 515 (1996).
17 Id.
18 Id. at 540.
19 Id. at 533.
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inappropriate for most women,20 and VWIL lacked the faculty, facilities, and course offerings
available at VMI. Because VWIL was not a comparable single-sex institution for women, the
Court concluded that it was an inadequate remedy for the state’s equal protection violations. VMI
subsequently became coeducational.
The Court’s most recent equal protection pronouncements with respect to sex discrimination both
involved immigration issues. In Miller v. Albright, the Court considered a challenge to §309 of
the Immigration and Nationality Act.21 The petitioner, the child of an American father and a
Filipino mother, contended that §309 imposed additional requirements for establishing American
citizenship when a child is fathered by an American citizen outside of the United States.22 For
children born of a citizen mother and an alien father, citizenship is established at birth. However,
for children born of a citizen father and an alien mother, citizenship is not established until the
father or the child takes affirmative steps to confirm their relationship by the child’s eighteenth
birthday. In this case, the petitioner’s father did not attempt to establish his relationship with his
daughter until after her eighteenth birthday. Thus, the petitioner’s application for citizenship was
denied.
The case produced five different opinions. While six justices agreed that the petitioner’s
complaint should be dismissed, they provided different reasons for this conclusion. Justices
Stevens and Rehnquist contended that the petitioner’s complaint lacked merit, maintaining that
§309’s distinction between “illegitimate” children of U.S. citizen mothers and “illegitimate”
children of U.S. citizen fathers is permissible under heightened scrutiny because it is “eminently
reasonable and justified by important Government policies.”23 Justices O’Connor and Kennedy
contended, however, that the distinction could withstand only rational basis review and should not
satisfy the kind of heightened scrutiny Justice Stevens seemed to conduct. Setting aside the issue
of §309’s constitutionality, Justices O’Connor and Kennedy believed that the petitioner lacked the
standing necessary to even pursue her claim. Finally, Justices Scalia and Thomas contended that
the petitioner’s complaint should be dismissed because the Court lacks the power to confer
citizenship. Having acknowledged that Congress has the exclusive authority to grant citizenship,
Justices Scalia and Thomas believed that there was no need to address the constitutionality of
§309. Justices Ginsburg, Breyer, and Souter dissented in opinions written by Justices Ginsburg
and Breyer.
In their separate opinions, Justices Stevens, O’Connor, Ginsburg, and Breyer each addressed the
petitioner’s argument that §309 invokes gender stereotypes. The petitioner contended that §309
relies on the belief that an American father “remains aloof from day-to-day child rearing duties,”
and will not be as close to his child.24 Justice Stevens, however, maintained that the statute has a
non-stereotypical purpose of ensuring the existence of a blood relationship between father and
child. Justice Stevens recognized that the distinction is reasonable because mothers have the
opportunity to establish parentage at birth, while fathers do not always have that opportunity.
Further, he contended that the distinction encourages the development of a healthy relationship
between the citizen father and the foreign-born child, and fosters ties between the child and the

20 Id. at 549.
21 523 U.S. 420 (1998).
22 8 U.S.C. §1409.
23 Miller, 523 U.S. at 441.
24 Id. at 443.
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United States. Thus, §309’s additional requirements are appropriate for fathers, but unnecessary
for mothers.
In their dissenting opinions, Justices Ginsburg and Breyer contended that §309 relies on
generalizations about men and women and the ties they maintain with their children. Justice
Ginsburg argued that §309’s goals of assuring ties between the citizen father and the foreign-born
child, and between the child and the United States can be achieved without reference to gender,
while Justice Breyer argued similarly, positing a distinction between caretaker and non-caretaker
parents, rather than mother and father.
In Nguyen v. INS, the Court considered a second challenge to §309.25 The facts in Nguyen closely
resembled those in Miller. Nguyen, the child of a citizen father and a non-citizen mother, born out
of wedlock, challenged §309 on the grounds that its differing requirements for acquiring
citizenship, based on the sex of the citizen parent, violated the Fifth Amendment’s guarantee of
equal protection.
A majority of the Court concluded that §309’s differing requirements were justified by two
important government objectives. First, the Court found that the government has an important
interest in assuring that a biological parent-child relationship exists.26 While a mother’s
relationship to a child may be established at birth or from hospital records, a father may not be
present at the birth and may not be included on such records. In this way, the Court maintained,
fathers and mothers are not similarly situated with regard to establishing biological parenthood.27
Thus, a “different set of rules ... is neither surprising nor troublesome from a constitutional
perspective.”28
Second, the Court found that the government has an important government interest in ensuring
that the child and the citizen parent have some demonstrated opportunity or potential to develop a
relationship “that consists of the real, everyday ties that provide a connection between child and
citizen parent and, in turn, the United States.”29 The opportunity for a meaningful relationship is
presented to the mother at birth. However, the father is not assured of a similar opportunity. The
Court concluded that §309 ensures that an opportunity for a meaningful relationship is presented
to the father before citizenship is conferred upon his child.
As a result, the Court found that §309’s differing requirements were substantially related to the
important government interests. The Court noted that by linking citizenship to the child’s youth,
Congress promoted an opportunity for a parent-child relationship during the formative years of
the child’s life.30 Alluding to its decision in VMI, the Court maintained that the fit between the
§309 requirements and the important government interests was “exceedingly persuasive.”31
Like the petitioner in Miller, Nguyen argued that §309 embodied a gender-based stereotype.
However, the Court found that §309 addresses an “undeniable difference in the circumstance of

25 533 U.S. 53 (2001).
26 Id. at 62.
27 Id. at 63.
28 Id.
29 Id. at 65.
30 Id. at 68-69.
31 Id. at 70.
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the parents at the time a child is born.”32 This difference is not the result of a stereotype or “a
frame of mind resulting from irrational or uncritical analysis.”33 Rather, §309 recognizes simply
that at the moment of birth, the mother’s knowledge of the child is established in a way not
guaranteed to the unwed father.
While the Court’s recent decisions involving sex and equal protection illustrate that it is
concerned with the stereotyping of men and women, it is unclear whether it will continue to
subject sex classifications and any related stereotypes to a traditional form of intermediate
scrutiny. The Court’s requirement of an “exceedingly persuasive justification” in VMI suggests
that it may be interested in conducting a more exacting form of judicial review for sex
classifications. In his Miller dissent, Justice Breyer emphasized the need to apply the standard
established in VMI. However, in Nguyen, both the majority and the dissenting justices, in
discussing an “exceeding persuasive justification,” simply reiterated the traditional test that is
used when applying intermediate scrutiny.34 Thus, it is not clear whether sex classifications in
future cases will be subject to a traditional form of intermediate scrutiny or some form of
heightened scrutiny.
Title VII of the Civil Rights Act of 1964
Title VII prohibits an employer from discriminating against any individual with respect to hiring
or the terms and conditions of employment because of such individual’s race, color, religion, sex,
or national origin.35 Title VII applies to a broad range of employment practices, including
discrimination because of sex in hiring, placement, promotion, demotion, transfer, termination,
and discipline. Because the statute prohibits sex discrimination with respect to all terms and
conditions of employment, discrimination regarding salary, leave, and other benefits may also
violate the act. In addition, the statute prohibits discrimination in referrals by employment
agencies, actions by unions, and retaliation against employees for filing or participating in a Title
VII claim or for opposing an employer’s discriminatory practices. Title VII contains several
exceptions to the prohibition against sex discrimination, the most important of which permits
otherwise discriminatory conduct that satisfies a bona fide occupational qualification (BFOQ).
Under §703(e)(1) of Title VII, an employer may discriminate on the basis of “religion, sex, or
national origin in those certain instances where religion, sex, or national origin is a bona fide

32 Id. at 68.
33 Id.
34 See, e.g., id. at 70 (“We have explained that an ‘exceedingly persuasive justification’ is established ‘by showing at
least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are
‘substantially related to the achievement of those objectives.’ ”); id. at 74 (“Because the Immigration and
Naturalization Service (INS) has not shown an exceedingly persuasive justification for the sex based classification
embodied in 8 U.S.C. § 1409(a)(4)—i.e., because it has failed to establish at least that the classification substantially
relates to the achievement of important governmental objectives—I would reverse the judgment of the Court of
Appeals.”).
35 Title VII provides, in relevant part, that it is an unlawful employment practice for an employer “to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin; or to limit, segregate, or classify his employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2.
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occupational qualification reasonably necessary to the normal operation of that particular
business or enterprise.”36
Although a wide variety of Title VII sex discrimination claims have been litigated in the courts,
the major Supreme Court sex discrimination cases under Title VII have primarily focused on the
following issues: pregnancy discrimination, gender stereotypes, mixed motives, sexual
harassment, employer liability, retaliation, and class action status. These issues, as well as a
discussion of the two different types of discrimination recognized under Title VII, are described
below. This report, however, does not address pay discrimination claims brought under Title VII
or the Equal Pay Act. For more information on pay discrimination issues, see CRS Report
RL31867, Pay Equity Legislation, by Jody Feder.
Disparate Treatment and Disparate Impact
The Court has developed two principal models for proving claims of employment discrimination.
The “disparate treatment” model focuses on an employer’s intent to discriminate. Alternately, the
“disparate impact” model is concerned with the adverse effects of an employer’s practices on a
protected class. Under disparate impact analysis, a facially neutral employment practice may
violate Title VII even if there is no evidence of an employer’s intent to discriminate. To succeed,
a plaintiff must demonstrate that the application of a specific employment practice has had a
different effect on a particular group of employees.37
Both disparate treatment and disparate impact analyses involve a system of evidentiary burden
shifting. Both models require the plaintiff to establish a prima facie case of discrimination.38 If
such a case can be established, the burden shifts to the employer to articulate a defense for its
actions. For example, the employer may produce evidence showing that its actions are justified
because of the needs of its business. Ultimately, however, the plaintiff retains the burden of
persuasion; that is, the plaintiff must establish that the employer’s assertion of a legitimate,
nondiscriminatory reason for its actions was a pretext to obscure unlawful discrimination.39
Pregnancy Discrimination
In recent years, the Court has addressed Title VII and sex discrimination most frequently in the
context of sexual harassment. In UAW v. Johnson Controls, however, the Court considered
whether an employer may discriminate against fertile women because of its interest in protecting
potential fetuses.40
Johnson Controls, a battery manufacturer, implemented a policy that excluded “women who are
pregnant or who are capable of bearing children” from jobs that exposed them to lead,41 which

36 42 U.S.C. §2000e-2(e)(1).
37 See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
38 A prima facie case is a case that contains elements that are sufficient to establish a claim unless disproved.
39 See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
40 499 U.S. 187 (1991).
41 Id. at 192.
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was the primary ingredient in the manufacturing process at Johnson Controls. Although fertile
women were excluded from employment, fertile men were still permitted to work.
The Court found that Johnson Controls’ policy was facially discriminatory because it did not
apply to the reproductive capacity of the company’s male employees in the same way it applied to
that of female employees. The Court’s conclusion was bolstered by the Pregnancy Discrimination
Act of 1978 (PDA), which provides that discrimination “on the basis of sex” for purposes of
violating Title VII includes discrimination “because of or on the basis of pregnancy, childbirth, or
related medical conditions.”42
Although Johnson Controls asserted that sex was a BFOQ for protecting fetal safety, the Court
maintained that discrimination on the basis of sex for safety concerns is allowed only in narrow
circumstances.43 The Court stressed that to qualify as a BFOQ, an employment practice must
relate to the essence or central mission of the employer’s business.44 Because reproductive
capacity does not interfere with a woman’s ability to perform work related to battery
manufacturing, the Court rejected Johnson Controls’ BFOQ defense.
In 2009, the Supreme Court issued a decision in AT&T v. Hulteen,45 a pregnancy discrimination
case that involved questions about whether women who took maternity leave before the PDA
went into effect were entitled to protection. Prior to enactment of the PDA, AT&T had calculated
pension benefits based on a seniority system that considered years of service minus uncredited
leave, but had given less leave credit for pregnancy absences than for other types of medical
leave. The plaintiffs claimed that, for purposes of calculating their current retirement and other
benefits, they were entitled to retroactive credit for the time they spent on maternity leave, while
the employer argued that they were not required to account for leave that took place before the
PDA went into effect.
Ultimately, the Court ruled in favor of AT&T, ruling that its seniority system did not violate Title
VII “when it gives current effect to such rules that operated before the PDA.”46 Under Title VII, it
is not unlawful for an employer to provide different levels of benefits pursuant to a bona fide
seniority system, as long as there is no intention to discriminate.47 According to the Court,
AT&T’s pre-PDA seniority system did not reflect intentional sex discrimination because it was
lawful at the time it was adopted. Therefore, the Court held that AT&T’s pension calculations
were made pursuant to a bona fide seniority system and were permissible under the statute.

42 42 U.S.C. §2000e(k).
43 Johnson Controls, 499 U.S. at 202.
44 See, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977) (finding sex to be a BFOQ because the employment of a
female guard in a maximum-security male penitentiary could create a risk of violence and jeopardize the safety of
inmates); Western Airlines, Inc. v. Criswell, 472 U.S. 400 (1985) (finding age to be a BFOQ in an ADEA case because
the employment of an older flight engineer could cause a safety emergency and jeopardize the safety of passengers).
45 129 S. Ct. 1962 (2009).
46 Id. at 1968.
47 42 U.S.C. §2000e-2(h).
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Gender Stereotypes
The Supreme Court has also ruled that employment decisions made on the basis of gender
stereotypes may constitute unlawful sex discrimination. In Price Waterhouse v. Hopkins,48 the
plaintiff, a woman who was denied partnership in the accounting firm where she worked, was
apparently rejected because of concerns about her interpersonal skills. Some of these concerns,
however, appeared to reflect gender stereotypes. For example, one male partner referred to the
plaintiff as “macho,” and another informed her that she could improve her chances of making
partner if she learned to “walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry.”49 Reasoning that sex stereotyping is a
form of discrimination on the basis of sex, the Court found that employment decisions that result
from sex stereotypes may violate Title VII.50
Although the decision was in part a victory for employees who have been victims of employment
actions based on gender stereotypes, another aspect of the Hopkins ruling favored employers by
requiring a lower standard of proof when employers defend their actions in mixed-motive cases.
In mixed-motive cases such as Hopkins, there are both legitimate and illegitimate reasons for an
employer’s adverse employment action. In such cases, the Court held that employers may rebut
an employee’s showing that discrimination was a “motivating factor” in the adverse action by
proving that they would have made the same decision even if discrimination had not been a
factor. This holding made it easier for employers to defend against discrimination lawsuits by
their employees.
Mixed Motives
As noted above, a mixed-motive employment discrimination case is a case in which the employer
has both legitimate and illegitimate reasons for taking the challenged employment action. Several
years after the Supreme Court ruled in the Hopkins case, Congress passed Title VII amendments
that partially overturned the decision.51 In the amendments, Congress added a provision that
defined unlawful employment actions to include situations in which discrimination is “a
motivating factor for any employment practice, even though other factors also motivated the
practice.”52 If an employer violates this provision but establishes that it would have taken the
same employment action absent the illegitimate motive, the amendments specify that courts may
grant the plaintiff declaratory and injunctive relief, as well as attorneys’ fees, although plaintiffs
are not entitled to damages, hiring, reinstatement, or promotion.53
The Title VII amendments, however, did not address certain questions regarding the evidentiary
burden of proof in mixed-motive cases. In 2003, the Supreme Court addressed the issue, ruling in
Desert Palace v. Costa that direct evidence of discrimination is not required in mixed-motive

48 490 U.S. 228 (1989).
49 Id. at 234-35.
50 Id. at 250-51.
51 Civil Rights Act of 1991, P.L. 102-166, §107(a).
52 42 U.S.C. §2000e-2(m).
53 Id. at §2000e-5(g)(2).
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cases.54 By allowing plaintiffs to present circumstantial evidence of discrimination, the decision
made it easier for employees to win in mixed-motive cases.
Sexual Harassment
Courts have recognized two forms of sexual harassment under Title VII. The first, quid pro quo
sexual harassment, occurs when submission to unwelcome sexual advances or other conduct of a
sexual nature is made a condition of an individual’s employment or is otherwise used as the basis
for employment decisions. The second form of harassment involves conduct that has the purpose
or effect of interfering unreasonably with an individual’s work performance or of creating a
hostile or offensive working environment. This second form of sexual harassment, which the
Court first recognized as a cognizable claim in Meritor Savings Bank, FSB v. Vinson,55 is referred
to as “hostile environment” sexual harassment.
In Harris v. Forklift Systems, Inc., the Court sought to define when a workplace was sufficiently
“hostile” for purposes of maintaining a claim under Title VII.56 The petitioner, a female manager
at an equipment rental company, alleged that the company’s president created a hostile
environment by repeatedly insulting her because of her gender and making her the target of
unwanted sexual innuendos.
The Court determined that an employee does not need to suffer injury to assert a hostile
environment claim under Title VII: “So long as the environment would reasonably be perceived,
and is perceived, as hostile or abusive ... there is no need for it also to be psychologically
injurious.”57 The Court identified four factors that should be considered to determine whether a
hostile environment exists: (1) the frequency of the discriminatory conduct; (2) the severity of
such conduct; (3) whether the conduct is physically threatening or humiliating; and (4) whether
the conduct interferes unreasonably with an employee’s work performance.58 Although the Court
recognized these factors as those to be considered in identifying a hostile environment, it
emphasized that no single factor is determinative.
Same-Sex Sexual Harassment
In 1998, the Court interpreted Title VII’s prohibition against discrimination “because of ... sex” to
include harassment involving a plaintiff and defendant of the same sex.59 The petitioner in Oncale
v. Sundowner Offshore Services, Inc. alleged that he was physically assaulted in a sexual manner
and was threatened with rape by three male co-workers.60 Two of the co-workers had supervisory
authority over the petitioner.

54 539 U.S. 90 (2003).
55 477 U.S. 57 (1986).
56 510 U.S. 17 (1993).
57 Id. at 22.
58 Id. at 23.
59 42 U.S.C. §2000e-2.
60 523 U.S. 75, 77 (1998).
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Although the Court acknowledged that Congress was “assuredly” not concerned with male-on-
male sexual harassment when it enacted Title VII, it found no justification in the statutory
language or the Court’s precedents for excluding same-sex harassment claims from the coverage
of Title VII.61 At the same time, the Court stated that inquiries in same-sex harassment cases
require careful consideration of the social context in which particular behavior occurs and is
experienced by the claimant. For example, the Court distinguished a football player being patted
on the butt in a locker room from similar behavior occurring in an office. The Court contended
that this kind of consideration would prevent Title VII from becoming a “general civility code”
for the American workplace.62
Employer Liability
The Court continued its examination of hostile environment sexual harassment in two cases
involving vicarious liability. In Faragher v. City of Boca Raton, the Court found that an employer
is vicariously liable for actionable discrimination caused by a supervisor, subject to an affirmative
defense that must consider the reasonableness of the employer’s conduct, as well as the conduct
of the employee.63 The petitioner, a former lifeguard for the Marine Safety Section of Boca
Raton’s Parks and Recreation Department, alleged that she was subject to an environment
characterized by lewd remarks, gender-biased speech, and uninvited and offensive touching by
her former supervisors.
Recognizing that the authority conferred as a result of a supervisor’s relationship with the
employer allows the supervisor greater ability to act inappropriately, the Court concluded that an
employer could be vicariously liable when a supervisor misuses that authority. As the Court
noted, “When a person with supervisory authority discriminates in the terms and conditions of
subordinates’ employment, his actions necessarily draw upon his superior position over the
people who report to him ... whereas an employee generally cannot check a supervisor’s abusive
conduct the same way that she might deal with abuse from a co-worker.”64
While the Court recognized that there could be vicarious liability for the misuse of supervisory
authority, it established the availability of an affirmative defense for employers. Under this
affirmative defense, an employer could assert that it exercised reasonable care to prevent and
correct any sexually harassing behavior or establish that the employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer. The Court
believed that the employer’s ability to assert such an affirmative defense was consistent with Title
VII’s objective of encouraging employers to prevent sexual harassment from occurring.65
After applying its new rules to the case at bar, the Court concluded that the city did not exercise
reasonable care to prevent the supervisors’ harassing conduct. Although the city maintained a
policy against sexual harassment, it failed to disseminate that policy to beach employees. Further,
the city made no attempt to monitor the conduct of the supervisors or assure employees that they
could bypass harassing supervisors to register complaints.

61 Id. at 79.
62 Id. at 80.
63 524 U.S. 775 (1998).
64 Id. at 803.
65 Id. at 805.
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The Court revisited the issue of vicarious liability for employers in Burlington Industries v.
Ellerth, a companion case to Faragher.66 In Ellerth, the Court maintained that an employer may
be found vicariously liable for harassment by a supervisor even if the employee suffers no
adverse, tangible job consequences.
The petitioner in Ellerth alleged that she was subjected to repeated offensive remarks and
gestures by a mid-level manager who supervised the petitioner’s immediate supervisor. On three
occasions, the manager made remarks that could be construed as threats to deny the petitioner job
benefits. For example, the manager encouraged the petitioner to “loosen up” because he “could
make [her] life very hard or very easy at Burlington.”67 Although Burlington maintained a policy
against sexual harassment, the petitioner did not inform anyone in authority about the manager’s
misconduct. Instead, the petitioner resigned from her position, providing reasons unrelated to the
harassment. Three weeks after her resignation, the petitioner informed Burlington of her true
reasons for leaving.
While the manager’s threats suggested that the claim should be analyzed as a quid pro quo claim,
the Court categorized it as a hostile environment claim because it involved only unfulfilled
threats. After reviewing the petitioner’s claim in terms similar to Faragher, the Court determined
that the manager at Burlington also misused his supervisory authority. The Court concluded that
Burlington should be given the opportunity to assert and prove an affirmative defense to liability.
The Court has also addressed the availability of punitive damages for violations of Title VII. In
Kolstad v. American Dental Association,68 the Court continued to build on its holdings in
Faragher and Ellerth by concluding that although an employer may be vicariously liable for the
misconduct of its supervisory employees, it will not be subject to punitive damages if it has made
good faith efforts to comply with Title VII. The Court noted that subjecting employers that adopt
antidiscrimination policies to punitive damages would undermine Title VII’s objective of
encouraging employers to prevent discrimination in the workplace.
In 2004, the Supreme Court considered the defenses, if any, that may be available to an employer
against an employee’s claim that she was forced to resign because of “intolerable” sexual
harassment at the hands of a supervisor. As noted above, an employer may generally assert an
affirmative defense to supervisory harassment under the Court’s 1998 rulings in Faragher and
Ellerth. The defense is not available, however, if the harassment includes a “tangible employment
action,” such as discharge or demotion. In Pennsylvania State Police v. Suders,69 the plaintiff
claimed the tangible adverse action was supervisory harassment so severe that it drove the
employee to quit, a constructive discharge in effect. The Court, in an opinion by Justice Ginsburg,
only Justice Thomas dissenting, accepted the theory of a constructive discharge as a tangible
employment action, but it also set conditions under which the employer could assert an
affirmative defense and avoid strict liability under Title VII of the 1964 Civil Rights Act.70 The
issue was key to determining the scope of employers’ vicarious liability in “supervisory” sexual
harassment cases alleging a hostile work environment.

66 524 U.S. 742 (1998).
67 Id. at 748.
68 527 U.S. 526 (1999).
69 542 U.S. 129 (2004).
70 42 U.S.C. §§2000e et seq.
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In Faragher and Ellerth, the Court had sought to clarify the nature and scope of an employer’s
legal liability for the discriminatory and harassing conduct of its supervisors in Title VII cases. It
held employers strictly liable for a sexually hostile work environment created by a supervisor,
when the challenged discrimination or harassment results in a “tangible employment action.”71
But in the absence of such a “company act” the employer may raise an affirmative defense based
on its having in place a reasonable remedial process and on the employee’s failure to take
advantage of it. Thus, the Ellerth/Faragher defense has two components: “(a) that the employer
exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm otherwise.”72
The Supreme Court defined a “tangible employment action” categorically to mean any
“significant change in employment status,” that may—but not always—result in economic harm.
Specifically, the term includes “hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits”73 However, a
“constructive discharge,” where the employee quits, claiming that conditions are so intolerable
that he or she was effectively “fired,” presented an unresolved issue. Could an employer, faced
with a claim of constructive discharge, still assert the Ellerth/Faragher defense?
Ultimately, the Court held that Title VII encompasses employer liability for constructive
discharge claims attributable to a supervisor, but ruled that an “employer does not have recourse
to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the
constructive discharge; absent such a ‘tangible employment action,’ however, the defense is
available to the employer whose supervisors are charged with harassment.”74 In recognizing
hostile environment constructive discharge claims, Suders enhanced Title VII protection for
employees who quit their jobs over intense sexual harassment by a supervisor. But the decision
also makes it easier for an employer to defend against such claims by showing that it has
reasonable procedures for reporting and correcting harassment of which the employee failed to
avail herself. Only “if the plaintiff quits in reasonable response to an employer-sanctioned
adverse action officially changing her employment status or situation, for example, a humiliating
demotion, extreme cut in pay, or transfer to a position in which she would face unbearable
working condition,” is the employer made strictly liable for monetary damages or other Title VII
relief.75
Moreover, even where there has been a tangible employment action, coupled with a constructive
discharge or resignation, the employer may have defenses available. First, the employer may
argue that the harassing conduct did not occur as alleged, or was not sufficiently severe,
pervasive, or unwelcome to meet standards for a Title VII violation. Second, if the tangible
employment action is shown to be unrelated to the alleged harassment, or is taken for legitimate
non-discriminatory reasons—particularly, if by persons other than the alleged harasser—the
employer might escape liability. Finally, the employer might be able to demonstrate that,
whatever form the underlying supervisory harassment may take, it did not meet the standard for
constructive discharge: “so intolerable that a reasonable person would have felt compelled to

71 524 U.S. 742, 765 (1998); 524 U.S. 775, 807 (1998).
72 Suders, 542 U.S. at 137-38.
73 Ellerth, 524 U.S. at 761.
74 Suders, 542 U.S. at 140-141.
75 Id. at 209.
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resign.”76 But Suders also makes it more difficult to obtain summary judgment and avoid jury
trials in sexual harassment cases involving constructive discharge claims. Under the decision, if
there is any real dispute about whether the employee suffered a tangible employment action, the
employer may not rely on the affirmative defense to obtain summary judgment.
Retaliation
In recent years, the Court has issued several decisions that have expanded the protections
available under Title VII’s anti-retaliation provision. In 2006, the Court issued its decision in
Burlington Northern & Santa Fe Railway Co. v. White,77 a case that involved questions about the
scope of the retaliation provision under Title VII. In a 9-0 decision with one justice concurring,
the Court held that the statute’s retaliation provision encompasses any employer action that
“would have been materially adverse to a reasonable employee or job applicant.”78 This standard,
which is much broader than a standard that would have confined the retaliation provision to
actions that affect only the terms and conditions of employment, generally makes it easier to sue
employers if they retaliate against workers who complain about discrimination. Under the Court’s
interpretation, employees must establish only that the employer’s actions might dissuade a worker
from making a charge of discrimination. This means that an employee may successfully sue an
employer for retaliation even if the employer’s action does not actually result in an adverse
employment action, such as being fired or losing wages.
In 2009, the Court issued a decision in Crawford v. Metropolitan Government of Nashville and
Davidson County,79 a case in which the plaintiff alleged that her participation in a sexual
harassment investigation against her supervisor resulted in her termination. Although the plaintiff
cooperated in the investigation and provided testimony regarding explicit comments and actions
made by her boss, the fact that she had not filed the sexual harassment complaint or other charges
with the Equal Employment Opportunity Commission (EEOC) led the lower court to rule that she
was not covered under Title VII’s retaliation provision. In reversing the decision, the Court held
that Title VII’s retaliation provision encompasses retaliation against “an employee who speaks out
about discrimination not on her own initiative, but in answering questions during an employer’s
internal investigation.”80 The Court emphasized that this result would prevent employers from
undermining the purpose of Title VII by silencing employees who might fear being penalized if
they reported discrimination during the course of an investigation.
More recently, the Court ruled in Thompson v. North American Stainless,81 a sex discrimination
case involving the question of whether Title VII creates a cause of action for third-party
retaliation for individuals who have not personally engaged in protected activity. In Thompson,
the plaintiff, who was fired three weeks after his then-fiancée filed a discrimination claim with
the EEOC, alleged that his termination constituted unlawful retaliation in violation of Title VII,
while the employer claimed that his discharge was for reasons of performance. The en banc Sixth
Circuit, in a fractured opinion, held that the employee was not protected because he had not

76 Id. at 147.
77 548 U.S. 53 (2006).
78 Id. at 57.
79 129 S. Ct. 846 (2009).
80 Id. at 849.
81 131 S. Ct. 863.
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opposed any practice nor participated in a proceeding as required by the anti-retaliation provision
of Title VII.82
In a unanimous decision, the Court reversed, holding that it had “little difficulty” in concluding
that the “firing of Thompson violated Title VII.”83 Citing Burlington’s holding that Title VII’s
anti-retaliation provision prohibits actions that might dissuade a reasonable worker from
complaining of discrimination, the Court declared “it obvious that a reasonable worker might be
dissuaded from engaging in protected activity if she knew that her fiance would be fired.”84 The
Court declined to establish fixed rules regarding the types of third-party relationships that are
protected, but did indicate “that firing a close family member will almost always meet the
Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do
so....”85
Class Action Status
In Wal-Mart v. Dukes, the Supreme Court considered whether it was appropriate to approve class
action status for up to 1.5 million current and former female employees of Wal-Mart retail stores
nationwide. Alleging a pattern of sex discrimination, the plaintiffs claim that women were paid
less than male workers in comparable positions and that the company systematically passed over
female employees when awarding promotions to management. A federal district court certified
the class.86 Wal-Mart appealed the district court’s class action certification, and a three-judge
panel of the appellate court upheld the class action certification,87 as did a subsequent ruling by a
divided panel of appellate judges sitting en banc.88 In a 5-4 decision, however, the Supreme Court
reversed the class certification ruling.89
Under the Federal Rules of Civil Procedure, parties seeking class certification must show, among
other things, that “(1) the class is so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class, and (4) the representative
parties will fairly and adequately protect the interests of the class.”90
According to the Court, the Wal-Mart plaintiffs failed to meet the commonality requirement
because they could not establish that Wal-Mart operated under a common, general policy of
discrimination. Rather: “The only corporate policy that the plaintiffs’ evidence convincingly
establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment

82 567 F.3d 804, 816 (6th Cir. 2009).
83 Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 867 (2011). The Court also held that Thompson is an aggrieved
person within the meaning of Title VII and therefore has standing to sue. Id. at 869-70.
84 Id. at 868.
85 Id.
86 Dukes et al. v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D.Cal. 2004).
87 Dukes v. Wal-Mart, 509 F.3d 1168 (9th Cir. 2007).
88 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010).
89 131 S. Ct. 2541 (2011). The Court also unanimously held that claims for monetary relief may not be certified
pursuant to Rule 23(b)(2), unless the monetary relief is incidental to the injunctive or declaratory relief. Id. at 2557.
90 Fed. R. Civ. P. 23(a).
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matters. On its face, of course, that is just the opposite of a uniform employment practice that
would provide the commonality needed for a class action.”91
In its ruling, the Court emphasized that plaintiffs must provide “significant proof” that a “specific
employment practice” led to the discrimination, and rejected as insufficient statistical and
anecdotal evidence offered by the plaintiffs.92 Although the Court’s decision makes it more
difficult for employees to receive class certification and thus makes it less likely that large
employers will face similar suits in the future, it is not the end of the litigation against Wal-Mart.
The plaintiffs may still pursue their claims as individuals, or perhaps as part of a smaller class.
Indeed, some of the Wal-Mart plaintiffs have reportedly filed a new lawsuit against the company
but have limited their claims to the California stores.93
Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in
educational programs and activities that receive federal funding. Until recently, Title IX claims
have been most common among women and girls challenging inequities in sports programs,94 but
Title IX also provides a basis for challenging sexual harassment in classrooms and on campuses.
Title IX provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial assistance.... ”95 The Court’s
recent decisions involving Title IX address various issues, including the availability of damages,
the parties that are subject to liability, the scope of retaliation claims, and the availability of other
statutory remedies.
In an early Title IX case, the Supreme Court held that the statute provides student victims with an
avenue of judicial relief. In Cannon v. University of Chicago,96 the Court ruled that an implied
right of action exists under Title IX for student victims of sex discrimination who need not
exhaust their administrative remedies before filing suit. However, the availability of monetary
damages under Title IX remained uncertain until Franklin v. Gwinnett County Public Schools.97
In Franklin, a female high school student brought an action for damages under Title IX against
her school district alleging that she had been subjected to sexual harassment and abuse by a
teacher. Although the harassment became known and an investigation was conducted, teachers
and administrators did not act and the petitioner was subsequently discouraged from pressing
charges. The Court, which found that sexual harassment by a teacher constituted discrimination
on the basis of sex, held that damages were available to the sexual harassment victim if she could
prove that the school district had intentionally violated Title IX.

91 Wal-Mart, 131 S. Ct. at 2554.
92 Id. at 2553-56.
93 Andrew Martin, “Female Wal-Mart Employees File New Bias Case,” New York Times, October 27, 2011.
94 See CRS Report RL31709, Title IX, Sex Discrimination, and Intercollegiate Athletics: A Legal Overview, by Jody
Feder.
95 20 U.S.C. §1681(a).
96 441 U.S. 677 (1979).
97 503 U.S. 60 (1992).
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After Franklin, it was clear that sexual harassment by a teacher constituted sex discrimination,
but the extent to which school districts could be held liable for misconduct by its employees was
less clear. The appropriate standard for measuring a school district’s liability for sexual abuse of a
student by a teacher remained unsettled until the Supreme Court ruling in Gebser v. Lago Vista
Independent School District.98 In Gebser, the Court determined that a school district will not be
held liable under Title IX for a teacher’s sexual harassment of a student if the school district did
not have actual notice of the harassment and did not exhibit deliberate indifference to the
misconduct.99 The petitioner, a female high school student, was involved in a sexual relationship
with one of her teachers. Unlike the situation in Franklin, the school district did not have actual
notice of any sexual relationship between the petitioner and the teacher until they were discovered
by a police officer. The principal of the petitioner’s school did learn of inappropriate comments
made by the teacher prior to the discovery, but he cautioned the teacher about such comments.
After the sexual relationship became known, the school district quickly terminated the teacher.
Despite the school district’s actions, the petitioner argued that the school district should be found
liable on the basis of vicarious liability or constructive notice.100
In requiring the school district to have actual notice of the harassment, the Court discussed the
absence of an express cause of action under Title IX. Unlike Title VII, Title IX does not address
damages or the particular situations in which damages are available.101 While Title IX does
address a denial of funds for noncompliance with its provisions, it does not provide for a private
right of action. Instead, a private right of action has been judicially implied.102
Because Title IX does not contain any reference to the recovery of damages in private actions, the
Court reasoned that its recognition of theories of vicarious liability and constructive notice would
allow an unlimited recovery where Congress has not spoken.103 Stated differently, the Court was
reluctant to expand the availability of damages for such theories when Title IX failed to provide
initially for a private cause of action. In this way, the Court sought to refine its holding in
Franklin and limit those situations in which a remedy for damages would lie.
The Court believed that Title IX’s remedial scheme would be undermined if it did not require that
a school district have actual notice of a teacher’s sexual harassment. Under Title IX, financial
assistance will not be denied until the “appropriate person or persons” have been advised of the
discrimination and have failed to end the discrimination voluntarily.104 An “appropriate person” is
an official of the entity receiving funds who has the authority to take corrective action.105 Because
the school district in Gebser did not have actual notice of the sexual relationship, it could not
have taken any steps to end the alleged discrimination.

98 524 U.S. 274 (1998).
99 Id.
100 Under a theory of constructive notice, liability would be established on the grounds that the school district knew or
should have known about the harassment, but failed to discover and eliminate it.
101 Gebser, 24 U.S. at 283-84.
102 See Cannon v. University of Chicago, 441 U.S. 677 (1979). A private right of action allows an individual to sue in
court for violations under a statute rather than wait for a federal agency to pursue a complaint administratively.
103 Gebser, 524 U.S. at 286.
104 20 U.S.C. §1682.
105 Gebser, 524 U.S. at 290.
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In addition, the Court stated that damages will not be available unless it is shown that a response
exhibits a deliberate indifference to the discrimination; that is, there must be “an official decision
by the recipient not to remedy the violation.”106 In Gebser, the school district responded to the
situation by first cautioning the teacher, and then terminating him once the relationship was
discovered. Thus, the Court concluded that the school district did not act with deliberate
indifference.
Davis v. Monroe County Board of Education, decided in 1999, addressed the standard of liability
that should be imposed on school districts to remedy student-on-student harassment.107 The
plaintiff in Davis alleged that her fifth-grade daughter had been harassed by another student over
a prolonged period—a fact reported to teachers on several occasions—but that school officials
had failed to take corrective action. Justice O’Connor, writing for a sharply divided Court,
determined that the plaintiff had stated a Title IX claim. Because the statute restricts the actions of
federal grant recipients, however, and not the conduct of third parties, the Court again refused to
impose vicarious liability on the school district. Instead, “a recipient of federal funds may be
liable in damages under Title IX only for its own misconduct.”108 School authorities’ own
“deliberate indifference” to student-on-student harassment could violate Title IX in certain cases.
Thus, the Court held, where officials have “actual knowledge” of the harassment, where the
“harasser is under the school’s disciplinary authority,” and where the harassment is so severe
“that it can be said to deprive the victims of access to the educational opportunities or benefits
provided by the school,” the district may be held liable for damages under Title IX.109
While the development of sex discrimination law under Title IX owes much to Title VII, the
Davis Court’s recognition of student-on-student harassment highlights dramatic differences
between the two statutes. Indeed, in qualifying the Davis standard, the Court suggested that
student harassment may be far more difficult to prove than sexual harassment in employment.
Beyond requiring “actual knowledge,” Justice O’Connor cautioned that “schools are unlike adult
workplaces” and disciplinary decisions of school administrators are not to be “second guess[ed]”
by lower courts unless “clearly unreasonable” under the circumstances. Additionally, the majority
emphasized that “[d]amages are not available for simple acts of teasing and name-calling among
school children, even where these comments target differences in gender.”110 In effect, Davis left
to school administrators the task of drawing the line between innocent teasing and actionable
sexual harassment—a difficult and legally perilous task at best.
In a separate decision the same year, the Court found that a private organization is not subject to
Title IX simply because it receives payments from entities that receive federal financial
assistance. In National Collegiate Athletic Association v. Smith,111 the respondent, a female
graduate student, alleged that the National Collegiate Athletic Association (NCAA) discriminated
against her on the basis of sex by denying her permission to play intercollegiate volleyball at two
federally assisted institutions. Under NCAA rules, a graduate student is permitted to participate in
intercollegiate athletics only at the institution that awarded her undergraduate degree. The
respondent, who was enrolled at two different universities for her graduate degree, argued that the

106 Id.
107 526 U.S. 629 (1999).
108 Id. at 640.
109 Id. at 650.
110 Id. at 648-52.
111 525 U.S. 459 (1999).
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NCAA granted more waivers from eligibility restrictions to male graduate students than to female
graduate students.
The Court concluded that the NCAA was not a recipient of Title IX funds because the NCAA did
not receive federal assistance either directly or through an intermediary. Instead, it received dues
payments from member institutions. The Court stated, “[a]t most, the Association’s receipt of
dues demonstrates that it indirectly benefits from the federal assistance afforded its members.
This showing, without more, is insufficient to trigger Title IX coverage.”112 Because the Court
found that the NCAA was not amenable to suit, it did not address the respondent’s substantive
allegations of discrimination.
In 2005, the Court handed down its decision in Jackson v. Birmingham Board of Education,113 a
case that further broadened the scope of Title IX to include protection against retaliation. In this
case, which involved a girl’s basketball coach who claimed that he was removed from his
coaching position in retaliation for his complaints about unequal treatment of the girl’s team, the
Court held that Title IX not only encompasses retaliation claims, but also is available to
individuals who complain about sex discrimination, even if such individuals themselves are not
the direct victims of sex discrimination.114 Reasoning that “Title IX’s enforcement scheme would
unravel” “if retaliation were not prohibited,”115 the Court concluded that “when a funding
recipient retaliates against a person because he complains of sex discrimination, this constitutes
intentional discrimination on the basis of sex in violation of Title IX.”116
More recently, the Court issued a decision in Fitzgerald v. Barnstable School Committee,117 a case
in which the Court considered whether Title IX provides the exclusive statutory remedy for
unlawful sex discrimination in the education context. The lower court, concluding that Title IX
was the exclusive statutory remedy, had rejected a claim that the original plaintiffs filed under 42
U.S.C. §1983 for violations of Title IX and the Equal Protection Clause of the Constitution.118 In
a unanimous decision, the Court reversed, holding that “Title IX was not meant to be an exclusive
mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a
means of enforcing constitutional rights.”119 As a result, plaintiffs may file claims related to sex
discrimination in education under both statutes in the future.


112 Id. at 468.
113 544 U.S. 167 (2005).
114 Id. at 171.
115 Id. at 180.
116 Id. at 174 (internal quotations omitted).
117 129 S. Ct. 788 (2009).
118 42 U.S.C. §1983, which provides a remedy for deprivation of rights under color of state law, creates no new
substantive rights but rather provides relief where state law is inadequate. Thus, individuals who sue under §1983 must
find a source of rights elsewhere. As a result, §1983 is often used to enforce constitutional rights, such as the right to
equal protection.
119 Fitzgerald, 129 S. Ct. at 797.
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Author Contact Information

Jody Feder

Legislative Attorney
jfeder@crs.loc.gov, 7-8088


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