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Sex bias claims permissible under Titles IV, IX

College employee can sue under both statutes

Lesley University, the defendant in the suit

Lesley University, the defendant in the suit

A federal judge has found that a Lesley University employee could bring sex bias claims against the Boston school under both Title VII and Title IX.

Plaintiff Micki Harrington claimed in her lawsuit that she was subjected to sexual harassment and pay discrimination in violation of both statutes.

Lesley contended in response that Harrington’s Title VII claims were time-barred and that, as an employee of a federally funded institution and not a student, she lacked a private cause of action under Title IX.

U.S. District Court Judge Douglas P. Woodlock ruled that Harrington’s Title VII harassment claims were indeed time-barred because she did not first file a charge with the Massachusetts Commission Against Discrimination within 300 days of the latest alleged incident.

However, Woodlock did permit Harrington to amend her complaint to allege more specifically that the federal Lilly Ledbetter Fair Pay Act tolled the statute of limitations on her Title VII wage discrimination claim.

Meanwhile, Woodlock determined that Harrington did, in fact, have a concurrent private right of action under Title IX.

“[S]ignificant differences between the statutes reflect that Title IX and Title VII afford two separate federal rights, each with a distinct scope and an independent end, not two separate remedies addressing the same harm,” Woodlock wrote, referencing Title VII’s goal of addressing workplace disputes in comparison with Title IX’s goal of barring use of federal resources to support discriminatory practices. “Neither statute should be read to support judicial restriction of the legal tools available to litigants to advance those goals.”

The 58-page decision is Harrington v. Lesley University, et al.

Greater meaning

Plaintiff’s counsel Benjamin S. Klein of Concord said the ability to bring a Title IX claim is important because it has a three-year window, as opposed to Title VII, under which a claim must be filed with the MCAD or U.S. Equal Employment Opportunity Commission within a shorter 300-day window.

“It’s an important ruling for the plaintiff in that she can now proceed on claims under Title IX that she can’t proceed on under Title VII.”

Defense counsel Paul G. Lannon Jr. of Boston declined to comment, citing ongoing litigation in the case.

However, Naomi R. Shatz, a Boston attorney who represents plaintiffs in Title VII and IX cases, said Woodlock’s holding that employees, and not just students, can bring Title IX claims is not novel.

As the court noted, the 1st U.S. Circuit Court of Appeals first considered Title IX employment claims in the 1980s, and since that point a majority of federal appeals courts have agreed that Title IX indeed protects employees from discrimination, Shatz said.

shatz-naomi“I’m frankly surprised that attorneys for schools, especially in the 1st Circuit, are still making the argument that Title IX does not apply to employees when the case law is clear that it does.”

— Naomi R. Shatz, Boston

“I’m frankly surprised that attorneys for schools, especially in the 1st Circuit, are still making the argument that Title IX does not apply to employees when the case law is clear that it does,” she said.

Meanwhile, Shatz said, the decision reiterates that instituting a Title IX process at a college or university does not toll the statute of limitations at the MCAD for employment discrimination claims under Title VII or the state anti-discrimination law, Chapter 151B.

“This means that even if an employee would like to resolve their claims internally at the school, in what could be a less adversarial setting than litigation, they may not be able to wait to see that process through before they are required to file a lawsuit at the MCAD to preserve their claims,” Shatz said. “And it means that schools like Lesley can simply sit on complaints and force the employee into a situation where they either miss their statute of limitations to file claims or have to start litigation without seeing if they can resolve the issues internally.”

Boston attorney David A. Russcol said it should not be surprising that statutes with different focuses, constitutional bases and remedies — like Title VII and Title IX — can overlap.

In fact, Russcol said, had the plaintiff worked at a state school, she also could have presented a Section 1983 claim to the court because she would have been not only an employee in the workplace and a participant in an educational program, but also someone impacted by unequal treatment by state officials.

“Congress can prescribe different sets of procedures and remedies for different wrongs, even if sometimes more than one applies to the same person. It is important that all these avenues remain open to plaintiffs in appropriate situations,” he said.

B. Aidan Flanagan of Boston, who represents colleges and universities, said the decision highlights the need for local institutions to ensure coordination between their Title IX office or coordinator and their human resources department.

“Both need to be informed as to the requirements of Title VII and Title IX, and they should anticipate working more closely together in the future,” he said.

Alleged discrimination

Harrington started working for Lesley as a temporary art librarian in August 2016, reporting directly to defendant Hedi BenAicha, dean of university libraries at the time.

According to Harrington, BenAicha subjected her to repeated physical and verbal sexual harassment, prompting her to file an internal complaint with Lesley’s Title IX coordinator in November 2018.

Meanwhile, before Harrington accepted her position, BenAicha allegedly promised she would receive certain benefits, and that after a probationary period she would be promoted to permanent head librarian and receive a raise — promises she allegedly relied on in leaving her previous job.

Around November 2016, Harrington was transitioned from temporary to salaried employee, but her monthly pay actually decreased by about $250 a month.

She also alleged that BenAicha continuously claimed to be working with HR to finalize her promotion to head librarian, along with a salary increase, but warned her that if she ever approached HR with complaints about her title and salary, it would jeopardize his efforts to “fix” the situation.

Harrington further claimed BenAicha held the position out of reach for several years as an incentive not to report his sexual harassment.

In November 2018, Harrington filed an internal Title IX complaint, after which BenAicha took a medical leave from which he has not returned.

Harrington then learned in January 2019 that, based on her job description, her salary was $20,000 a year less than it should have been.

However, in June 2019, the university approved only a one-grade salary increase instead of the two-grade increase the new acting dean requested on Harrington’s behalf, resulting in a $4,000 raise. Two male colleagues in the library allegedly received raises approximately twice as large.

On June 30, 2020, Harrington filed a complaint with the MCAD alleging Chapter 151B and Title VII violations. On Oct. 13, 2020, she withdrew her complaint and, having received EEOC notice of right to sue, filed suit against Lesley and BenAicha in Superior Court alleging Chapter 151B, Title VII and Title IX violations.

The defendants removed the case to federal court, where the university moved to dismiss all claims, arguing the Title VII claims were time-barred and she had no private cause of action under Title IX.

Private action

Woodlock found that Harrington did, in fact, have a private cause of action under Title IX.

“[T]he [U.S.] Supreme Court has never explicitly limited Title IX’s coverage to students, but has generally recognized the statute’s expansive reach regarding sex discrimination in the educational environment since its enactment,” the judge said. “Construing Title IX in that fashion, I find that Title VII and Title IX are separate enforcement mechanisms, either or both of which an individual may use to challenge sex-based employment discrimination in a federally funded educational program.”

The judge also found that the Lilly Ledbetter Act potentially preserved Harrington’s Title VII pay discrimination claim because, under the act, each time an employee receives a paycheck resulting from an earlier discriminatory compensation practice, a new cause of action arises.

Still, Woodlock said, the plaintiff failed to allege with sufficient particularity that the two male colleagues who received larger raises were, in fact, similarly situated to Harrington in terms of performance, qualifications and conduct, and she failed to clarify whether she continued to receive a depressed salary through a date that would place her within the 300-day statute of limitations.

Thus, he allowed the motion to dismiss while granting Harrington an opportunity to file a second amended complaint to address those issues.

Meanwhile, he found that her Title VII sexual harassment claims indeed were time-barred because while the MCAD decided to toll the statute of limitations on complaints before it on a case-by-case basis, Harrington did not allege that she sought such relief.