Outten & Golden: Empowering Employees in the Workplace

Retaliation Equals Discrimination, Thanks to Coach Jackson

March 31st, 2005 | Paula Brantner

When someone speaks up about discrimination they observe, should it matter whether they themselves are being discriminated against? In many instances, the law requires victims to complain, but what happens when those who complain become victims? The U.S. Supreme Court this week made the law concerning retaliation a bit more clear, in the case of Jackson v. Birmingham Board of Education, involving a male high school basketball coach who spoke up for the young women he coached when their school treated them unfairly.

Most workers are familiar with the concept of discrimination, or at least think they “know it when they see it.” Many are surprised the ability to address unfair treatment is not as substantial as they think. In 1964, Title VII, the Civil Rights Act, made it illegal to discriminate on the basis of sex (as well as race, color, religion and national origin) across the nation. Title VII also makes clear, in section 2003e-3(a), that an employer cannot take any adverse action against an employee, or retaliate, because an employee spoke out in opposition to discriminatory practices that are unlawful under Title VII.

Roderick Jackson worked in Ensley High School in Birmingham, Alabama, as a physical education instructor and coach of the girls basketball team. When transferred to Ensley from another Birmingham school in 1999, Coach Jackson discovered that the girls team he coached was not receiving equal funding and equal access to athletic equipment and facilities. His team was forced to practice in gyms that were not regulation-sized, and whose baskets had bent rims. Coach Jackson’s team, unlike the boys team, could not access the funds earned at their games to pay for game officials, equipment and other relevant supplies.

So Coach Jackson spoke out about it, by complaining to the school administration, starting in December 2000. Instead of working to improve the conditions for the girls’ team, however, the school instead started giving Jackson negative work evaluations. At the end of the 2000-2001 school year, Jackson was removed from his coaching position, although he still teaches phys ed.

While Coach Jackson argued that his ability to effectively coach the girls team at Ensley was negatively affected by the discriminatory conditions, the crux of his complaint was that he was retaliated against for complaining about discrimination against the girls team, which, he charged, was based upon their sex. So instead of an employment discrimination claim under Title VII, he was required to bring a claim under Title IX, a law addressing sex discrimination in educational settings.

Under Title IX, schools that receive public funding are not allowed to discriminate on the basis of sex, and can face lawsuits from those whose rights are violated. Title IX has been an important weapon, since its enactment in 1975, for women’s sports teams trying to achieve parity with the men’s programs at their schools, and has also been used by girls and young women to end sexual harassment in a school setting.

Unlike Title VII, Title IX does not have an explicit provision making retaliation illegal, so the Birmingham school district claimed Jackson didn’t have a case. The federal trial court agreed with the school district, and dismissed Jackson’s case. This ruling was upheld by the next higher court, the Eleventh Circuit Court of Appeals. However, in its ruling this week, the U.S. Supreme Court disagreed. (See Jackson v. Birmingham Board of Education, March 29, 2005)

The Court, in an opinion written by Justice Sandra Day O’Connor on behalf of a 5-4 court majority, stated that because retaliation was an intentional act, it is a form of intentional discrimination based upon sex, which is what the law makes illegal. Retaliation is therefore a subset of the broad category of unlawful conduct which is considered to be discriminatory, i.e., different treatment for a particular unlawful reason, rather than a separate and distinct category of conduct which has to be spelled out in the law to be covered. As Justice O’Connor wrote, “without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.”

The Court rejected the school’s argument that Jackson was only an indirect victim of discrimination. Surely it felt pretty direct to Jackson when he was fired as the girls’ basketball coach. The Court recognized that young and vulnerable students may not always be in the best position to recognize or speak out against discriminatory conduct, yet if their rights are to be truly vindicated, teachers and coaches may be the only ones who can effectively speak out on their behalf.

Jackson’s case is not over: the legal battle to date has been over whether he can even file his lawsuit, and not whether he can win it. The case is now remanded to the trial level court for further action, and Jackson will now have a chance to demonstrate the extent to which he was discriminated against. While the case on its face only applies to school settings, it is nonetheless important in the employment setting to clarify that retaliation is but one form of intentional discrimination, especially when state laws don’t explicitly mention retaliation, unlike federal law. Any time the Supreme Court takes an expansive look at a discrimination statute, rather than limiting it strictly to what it says, it’s a good thing.

It’s definitely the week to think about basketball, and I’ve personally been thinking a lot about basketball this week, with both the men’s and women’s teams of my alma mater, Michigan State, about to play in the Final Four of the NCAA Tournament. I must recognize, however, that were it not for coaches like Coach Jackson, certainly the women’s team wouldn’t be making a Final Four appearance. If it weren’t for Title IX and coaches’ efforts to make it mean something, there might not even be a women’s Final Four — much less one comprised of such top-caliber female athletes, and coaches like Pat Summit of Tennessee, whose winning record this year surpassed the NCAA men’s record holder, Dean Smith of North Carolina. (See New York Daily News article.)

For Coach Jackson, the issue was relatively simple. “I have a son and daughter who both play sports,” Jackson said. “I want both of them to be treated equally.” Thanks to his efforts, maybe they, and many other kids along the way, will be. And when they become adults entering the workplace, perhaps they will already understand that discrimination — and that means retaliation — is against the law.

More Information:

National Women’s Law Center: Athletics
Department of Education Office of Civil Rights: Sex Discrimination

(cosigned by NELA and more than 100 civil rights organizations)

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