SUGGESTED LANGUAGE FOR ADDRESSING RETALIATION CLAIMS
Docket No. ED-2018-OCR-0064, RIN 1870–AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Comment submitted to the Department of Education by Stop Abusive and Violent Environments (SAVE)
A number of comments in response to this proposed regulation have suggested adding a provision dealing with retaliation, even though the U.S. Supreme Court has already created protections for victims of retaliation in its decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).
If the Education Department does address retaliation in this regulation, it should include well-established limits on retaliation claims that exist even under statutes that have very broad bans on retaliation, such as Title VII of the Civil Rights Act.
For example, it should make clear that a complaint is not protected against retaliation if it is not “reasonable” and made in “good faith.” The Supreme Court ruled unanimously that at a minimum, unreasonable complaints are not protected, in Clark County School District v. Breeden, 532 U.S. 268, 270 (2001). The Court ruled that because no reasonable person would have thought the conduct complained of in that case was illegal sexual harassment, it was not protected against retaliation. The court left open the possibility that conduct must actually be unlawful before a complaint about it is protected, but decided the case based on the fact that, at a minimum, the complaint at least needed to be reasonable and in good faith in asserting unlawful discrimination, and concluded that the complaint was not reasonable in the case before it, because the complainant could not reasonably have believed that the conduct she complained of amounted to illegal sexual harassment.[1]
Title IX’s language does not even mention retaliation, and as a result, retaliation against a complainant is only banned by Title IX if the complaint is about actual discrimination, not just what is perceived (reasonably or unreasonably) to be discrimination. That is because Title IX lacks a separate provision banning retaliation, and thus logically bans retaliation only when the retaliation itself is discriminatory, in having “perpetuated” actual discrimination, as opposed to perceived discrimination.[2]
Even if a reasonable, good faith belief did suffice to protect a complaint of discrimination against retaliation, that protection should not protect people who lie about sexual harassment or assault. Lying is not protected against retaliation even under the broad, specific statutory provision against workplace retaliation contained in Title VII. Federal appeals court rulings have repeatedly made that clear.[3]
Restrictions on bad-faith and unreasonable retaliation claims are needed to protect the free-speech rights of accused people, and their ability to publicly defend themselves against baseless charges. Being subjected to a lengthy investigation based on discrimination or harassment charges can chill the free speech of the target in ways that violates freedom of speech.[4]
Indeed, such charges can themselves be harassment, especially when they are unreasonable or in bad faith. For example, Professor Laura Kipnis was accused of retaliation merely because she defended herself on twitter against charges that she had committed sexual harassment against students on her Illinois campus merely by writing an essay on “sexual paranoia” in the Chronicle of Higher Education, which is published in Washington, hundreds of miles away from her college.[5]
Professor Kipnis was first accused of sexual harassment over her essay in Chronicle of Higher Education, even though any sensible person would realize it was neither severe nor pervasive enough to affect the complainants’ access to an education or create a hostile environment for them.[6]
Then, she was accused of retaliation for defending herself on twitter, even though her tweet likewise had no effect on the complainants’ access to an education, nor did it cause them any tangible harm.
In short, retaliation charges were used to harass Professor Kipnis and retaliate against her for her own academic expression.
Expansive interpretations of retaliation like those employed against Professor Kipnis unacceptably chill speech and academic debate. Retaliation provisions should not be interpreted in ways that create free-speech or free-association problems.[7]
Even a retaliatory motive does not divest otherwise protected speech or petitioning activity of its protection.[8]
So, if the Education Department does add a provision banning “retaliation” in its final regulation, it should incorporate limits on what retaliation is, to protect free speech, and respect longstanding limits on the concept of “retaliation.”
For example, the retaliation provision could read:
“No recipient shall retaliate against any student or employee who complains of discrimination made unlawful by Title IX. A complaint is not protected if it is not in good faith. Nor is it protected if the complaint is not based on a reasonable belief that a Title IX violation has occurred. Conduct in response to a complaint rises to the level of retaliation only when: (a) the recipient terminates, suspends, expels, or demotes the complainant, or reduces the complainant’s pay, because of the complaint; or (b) an employee of the recipient, because of the complaint, denies the complainant an aid or service of the recipient, or subjects the complainant to conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person access to the recipient’s education program or activity, or amounts to constructive discharge.”
[1] See Id. at 270.
[2] See Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (Title IX does not mention retaliation, but it is illegal to engage in retaliation against those who oppose discrimination because when that occurs, it has “perpetuated” such discrimination, and thus itself involves “intentional discrimination”).
[3] See, e.g., Vasconcelos v. Meese, 907 F.2d 11 (9th Cir. 1990) (lie about sexual harassment was not protected against retaliation); EEOC v. Total System Services, 221 F.3d 1171 (11th Cir. 2000) (complaint about sexual harassment that employer concluded was a lie was not protected against retaliation).
[4] See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (eight-month investigation of speakers after they were accused of civil-rights violations over their speech violated the First Amendment, even though their speech allegedly violated the Fair Housing Act by delaying the provision of housing to minorities).
[5] See, e.g., Jessica Gavora, “How Title IX became a political weapon,” Wall Street Journal, June 8, 2015, at A13; Hans Bader, “A Never-Ending Title IX Investigation,” CNS News, Sept. 25, 2017 (available on the Internet).
[6] See DeAngelis v. El Paso Municipal Police Officer’s Association, 51 F.3d 591 (5th Cir. 1995) (several sexist articles in an employee newsletter were not severe or pervasive enough for harassment liability).
[7] See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (rejecting harassment victim’s retaliation claim based on workplace tensions following her complaint, and citing freedom of association); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 574-575 (1988) (rejecting agency’s expansive interpretation of statute because it would raise possible First Amendment problems); Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997) (state law’s broad retaliation ban could not be applied to mayor’s criticism of harassment charge against him, to newspaper, because retaliation bans are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech”).
[8] See BE&K Construction Co v. NLRB, 536 U.S. 516 (2002) (First Amendment freedom of petition protected employer’s non-baseless lawsuit against complainant even if it had a retaliatory motive).