Title IX complicates employee dispute case

The Title IX retaliation suit filed Friday afternoon by employee Susan Burhans is a common reaction to employment disputes, according to attorneys in the field.

Burhans’ suit claims that after she was hired as a Communications and Education Specialist for the Office of the Vice President in 1999 her efforts to bring the University’s alleged Title IX violations to the attention of administrators led to a series of changes to her employment status ending in termination of her current position, effective this November. In 2009, Burhans brought a separate suit against Yale alleging gender-based discrimination by the University after not being granted several promotions she had previously been promised. Several Title IX experts and employment dispute lawyers interviewed said that to win her most recent case, Burhans must prove causality between her “whistle blowing” on issues of sexual misconduct and Yale’s retaliatory actions toward her.

“It’s not uncommon at all to see someone lodge a discrimination claim, lose, and lodge a retaliation claim [after the discrimination claim],” said Peter Lake, director for the Center for Excellence in Higher Education Law and Policy at Stetson University. “It is a little easier to prove a retaliation claim over a discrimination claim.”

Patrick Noonan, who represented Yale in the 2009 lawsuit, said the complaint Burhans initially filed with the Connecticut Commission on Human Rights and Opportunities in 2008 was dismissed by the Merit Assessment Review Program due to a lack of evidence. Noonan said that in response, Burhans filed a civil suit in Connecticut State Court, a case that is still pending but parts of which have been dismissed, including the allegation that Yale fosters a “hostile work environment.”

Burhans declined to comment Wednesday.

Multiple claims from the 2009 complaint are repeated in the 2012 suit, including the allegations that she was discriminated against when forced to interview before a panel of four men and that she was given a new job title without an appropriate increase in compensation.

Fair employment cases reemerge as retaliation suits all the time, said Michael Rose, a Connecticut-based employment litigator, because retaliation cases are often easier to prove.

The current suit is based on the protection afforded Burhans under Title IX that allows her to alert administrators of inadequate sexual misconduct prevention programs without fear of retribution, said John Williams, Burhans’ New Haven-based attorney.

The recent suit follows a 15-month Title IX investigation by the Department of Education’s Office of Civil Rights into Yale’s sexual climate. The investigation, which was prompted by a complaint 16 students and alumni filed with the OCR in April 2011, was closed this June. While the OCR did not find Yale in noncompliance with Title IX, Russlynn Ali, assistant secretary for civil rights at the Department of Education, said in June after the OCR’s investigation was closed that the University had underreported incidents of sexual misconduct “for a very long time.”

Erin Buzuvis, a professor at the Western New England University School of Law, said that in her current case, Burhans does not have to prove that the University was in fact noncompliant with Title IX but only that she perceived violations and that administrators responded hostilely to concerns she presented them. Still, she said Burhans’ case is stronger if she can prove her claims of noncompliance. The recent OCR investigation provides evidence that the University had existing problems with Title IX compliance, she added.

W. Scott Lewis, a partner with the National Center for Higher Education Risk Management, said a 2005 Supreme Court decision, Jackson v. Birmingham, established that individuals have protection against retaliation in their efforts to ensure institutions comply with Title IX — a case similar to Burhans’ lawsuit.

Buzuvis said retaliation cases related to Title IX have increased in recent years and that a number have seen “highly successful plaintiffs.” He said that in order to prove a Title IX retaliation claim, the court must establish that the complainant acted in a whistleblowing capacity and was subsequently subjected to hostile actions, adding that it is often difficult to prove a causal relationship between the two.

Lewis said he expects the University to respond to Burhans’ complaint with alternative explanations for her alleged mistreatment because a decade is “a pretty long time” for Burhans to prove a pattern of discrimination.

Lake said other universities that emerge from federal Title IX investigations may face similar employment-related lawsuits.

“I think you’re going to see more employees claiming they attempted to bring information forward claiming they weren’t listened to or retaliated against,” Lake said.

Burhans is suing Yale for at least $10 million, according to the complaint.

Correction: Oct. 21

Due to an editing error, a previous version of this article mistakenly stated that the OCR’s report said Yale had severely underreported cases of sexual assault and harassment in recent years. In fact, the report did not say anything about underreporting. Russlynn Ali, assistant secretary for civil rights at the Department of Education, said in June after the OCR’s investigation was closed that the University had underreported incidents of sexual misconduct “for a very long time.”

Comments

  • concerned

    Hey guys! Sexual assault is criminal. Remember Tracey Thurman?

    • officerexit

      There is no need for correction to the article. The correction is just semantics. I would be curious to know who requested the correction. The DOE has many departments. It was the DOE, but it was the Clery Team not the OCR dept within DOE that found underreported sexual assault and harassment. Please visit these pages on the DOE website for the truth.

      http://federalstudentaid.ed.gov/datacenter/cleryact/yale/YaleFPRD52311.pdf
      http://www2.ed.gov/documents/press-releases/yale-agreement.pdf

      Also this Time article discusses Penn State and how colleges have so much power that it is difficult to discern the truth of these matters.

      •http://www.time.com/time/nation/article/0,8599,2099381,00.html

  • truthvertias

    CT Commission on Human Rights doesn’t pursue cases for a number of reasons. In fact, if Burhans’s case had no merit she would have received a “nefarious case” letter. She must have received a right to sue letter.

    Go to CT judicial case look-up to see that the discrimination court case isn’t dismissed. Seems Yale probably would have been able to have this dismissed by now if there was no merit. Burhans filed in 2009. http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV095029548S

  • officerexit

    **Strong**Penn State’s high-profile sex abuse scandal has brought urgent new attention to the issue of institutional transparency and accountability in academia. Former FBI director Louis Freeh, in his official report on the case, said that Penn State officials showed “total and consistent” disregard for sex crime victims. Freeh’s investigation revealed how dangerous it can be when senior administrators prioritize a university’s reputation over the interests of sex crime victims.

    Another sex-related investigation of a leading university concluded recently. In early June the U.S. Department of Education’s Office for Civil Rights (OCR) announced that it was ending a yearlong investigation into the sexual climate at Yale University. The Yale investigation addressed cases of assault of college students, not children. For that reason, the Yale case didn’t generate as much media coverage. Nevertheless, it raised similar questions about institutional accountability in response to campus sex crimes.

    More broadly, the OCR’s investigation raised questions about the status of women at the elite Ivy League school. **Strong**Despite substantial evidence that Yale permitted a hostile sexual environment to persist on campus — something that legally qualifies as gender discrimination under Title IX — the government failed to find Yale in violation of gender equality laws. In so doing, the OCR ultimately failed to uphold the civil rights of Yale women.
    **Strong****Strong****Strong** from Huffington Post – Nathan Harden

  • ConsciousThought

    OfficerExit, I agree with your statement that “… OCR ultimately failed to uphold the civil rights of Yale women”. Having gone through very similar exclusion, then discrimination, then sexual harassment and stalking for a year at a Science/Engineering university, I too filed a TItle IX with OCR 1-1/2 years ago.

    Apparently, in that state in 2010, 50% of my female peers in my discipline filed Title IX complaints on professors and the university administration. And those were just the women who actually came forward. My other female classmates were forced to leave under duress; we all were making A grades.

    US Dept. of Ed, OCR has told me for 1-1/2 years they have much evidence, but the case is still pending. The only thing they offered to do so far was to tell the university to keep training staff/faculty on sexual harassment, which the university has already been doing for years. (I don’t think it’s working, as they already lost a Title VII for staff sexual harassment against female workers a couple of years ago — but possibly Title VII is easier to try for the same issues.) In the meantime, my prior university blocked my transfering to another university 3 times, even though I was an A student in good standing.

    I watched the Yale case, hoping that the serious career and safety issues affecting the Yale women in the Title IX case would propel OCR into taking a decisive stand against that hostile culture. These universities are not governing themselves, they have a self-interest and are not structured to govern themselves (case in point, Penn State). The federal government must step in and make swift decisive action specifically as a deterrent against the university and faculty so that the hostile environment does not continue. It is that simple.

    I’m not sure if you’ve noticed, but there is a shortage of workers in science and engineering. Why are large employers, who donate millions of dollars to keep women in science and engineering, not stepping in to stop the hostile and unsafe campus environments? Otherwise, they are throwing their money away.

  • eli1

    This lady is so ridiculous. It’s pretty obvious that this lady is trying to cash in on the title IX investigation. Seriously, 10 million bucks because she had men interview her for her completely worthless position in the Yale beauracracy?? It’s about time Yale cut some administrative fat anyway, and this lady sounds like a good place to start. This woman’s greed is despicable and honestly makes me sick to see how she is taking advantage of the legal system. If this woman wins I will lose whatever shred of respect I had for our legal system.

  • eli1

    PS does this lady get her legal advice from the Yale undergrad who sued the airlines for 10 million dollars because they lost his Xbox??

  • ConsciousThought

    Eli, the article states:

    > The current suit is based on the
    > protection afforded Burhans under
    > Title IX that allows her to alert
    > administrators of inadequate sexual
    > misconduct prevention programs without
    > fear of retribution, said John
    > Williams, Burhans’ New Haven-based
    > attorney.

    She was doing her job. And apparently, well. The law does not allow a university to hire a person to manage this program, only to strip her of her duties once she comes forward with the truth, then fire her. The Title IX law addresses retaliation so that people like Ms. Burhans can effectively do their job without fear of being fired for doing so.

    I know of other faculty and students who have been threatened with their job if they come forward for Title IX. Ms. Berhans’ case protects that right, and it is important.

    Eli, she will not get the $10M. But the alternative, US Dept. of Ed OCR, does nothing. A little slap on the wrist, with a wink on the side, and they’re done. And status quo for Yale. But $10M? Now that will probably make Yale take notice. Which is the point. To stop abusing victims who come forward to file Title IX.