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.”

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