Why Health Care Providers Need to Care About Title IX

January 29, 2020

Sexual misconduct cases on college campuses – otherwise known as Title IX cases – fill the headlines. Not surprisingly, Title IX is often associated only with sports or higher education.

But if you provide health care within Pennsylvania, New Jersey, Delaware, or the Virgin Islands, and provide educational programs, Title IX likely applies to you.

Before you are faced with your first Title IX complaint, read on:

Title IX is a federal law that prohibits sex discrimination in educational programs or activities that accept federal funding. But Title IX applies broadly, beyond what might be considered traditional educational institutions.

In a case that governs Pennsylvania, New Jersey, Delaware, and the Virgin Islands, the U.S. Court of Appeals for the Third Circuit held that a private hospital is subject to Title IX sex discrimination and retaliation claims raised by a participant in its residency program. The private hospital had sought to dismiss the case, arguing that Title IX did not apply because it was not primarily an educational institution. The court rejected that argument, holding that Title IX applied to the private hospital and covered not just students, but also employees. Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3rd Cir. 2017).

Because of this ruling, health care providers should proactively assess with their counsel whether they are subject to Title IX in two steps:

  • Step 1 – Determine whether your organization accepts federal funding through contracts, grants, etc. If yes, continue to Step 2.
  • Step 2 – Carefully consider whether you provide any “educational program or activity,” such as a structured course of study or training, degrees or certificates. Factors evidencing an “educational program or activity” include holding a program out as educational, accepting tuition, providing instructors, grades, and/or evaluation, qualifying participants for a certification exam, or an affiliation with an educational institution.

If Title IX applies, now is the time to evaluate with your counsel whether your existing policies, procedures and practices comply.  Because both Title VII (which prohibits discrimination in employment) and Title IX (which prohibits discrimination in an educational environment) apply contemporaneously, complex compliance questions can arise.  Each law has different requirements, standards, and regulatory frameworks. Adding to the complexity, the Title IX regulations and case law are rapidly evolving with new Title IX federal regulations expected in 2020.

Taking these proactive steps, and working with counsel who understands both Title IX and Title VII before you receive your first complaint, will be time well spent.

Pamela Connelly will be continuing to post a deeper dive on Title IX and Title VII.   You can reach out to Ms. Connelly at pconnelly@smgglaw.com or (412) 281-5423 with any questions or to discuss.