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Medical Resident: Student, Employee, or Both? Third Circuit Finds Hospital Residency Program May Be Subject to Title IX

April 3, 2017

In a recent case of first impression, the Third Circuit found that a private teaching hospital’s residency program was an “education program or activity” for purposes of a discrimination claim asserted under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

In Doe v. Mercy Catholic Med. Center, No. 16-1247 (E.D. Pa. March 7, 2017), the plaintiff brought quid pro quo, hostile environment, and retaliation claims under Title IX (along with pendent state law claims) after she was dismissed from her medical residency. The hospital was a private institution affiliated with a university’s college of medicine, and was a recipient of Medicare payments. Doe alleged that the director of the hospital’s residency program sexually harassed her and then retaliated against her by advocating her dismissal from the program after she complained about his behavior. She did not file a Title VII employment discrimination complaint with either the Equal Employment Opportunity Commission or the Pennsylvania Human Relations Commission. Rather, she proceeded solely under Title IX.

The district court dismissed the action, finding that Title IX did not provide Doe with a right of action. The court concluded the hospital’s residency program was not an “education program or activity” as defined in Title IX. In the alternative, the district court held that Title VII provided the exclusive avenue for seeking relief based on employment discrimination. On appeal, the Third Circuit disagreed with both conclusions.

Title IX does not define “education,” nor does it expressly define what is an “education program or activity.” However, it defines a “program or activity” broadly. The term applies to an entity’s entire operation if any part of that operation receives federal funding. It applies to a private organization (such as a private hospital) if the organization either receives federal funding “as a whole” or is principally engaged in providing any of a list of enumerated services, including education or health care. The Third Circuit concluded that Title IX’s reach is not limited to entities that are principally engaged in education. Rather, the court held an entity is subject to Title IX if one could reasonably consider its mission at least partly educational. That determination, the court found, is a mixed question of law and fact that must be made on a case-by-case basis. Potentially relevant features of an education program or activity include:

  • “a program is incrementally structured through a particular course of study or training, whether full- or part-time;”
  • “a program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training;”
  • “a program provides instructors, examinations, an evaluation process or grades, or accepts tuition;”
  • “the entities offering, accrediting, or otherwise regulating a program hold it out as education in nature.”

Applying this analysis to Doe’s claims, the Third Circuit observed that the hospital had at least two of these enumerated features. It was a private organization principally involved in providing healthcare. Moreover, its operation of an accredited residency program affiliated with a medical college made its mission at least partly educational. A resident, the court noted, is both an employee and a student. Therefore, the hospital’s residency program was an “education program or activity” subject to Title IX.

In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court determined that Title IX implicitly provides a private cause of action. The Third Circuit found that the Supreme Court’s holding extended to Doe’s claims, even though she could have brought concurrent claims as an employee under Title VII. The appellate court rejected the district court’s rationale that Title IX should not be used to plead one’s way around the administrative requirements of Title VII. The Third Circuit held that private educational employees are not limited to Title VII claims in seeking relief from discrimination. Further, Title IX’s implied private right of action encompasses both employees and students, and it specifically extends to employees of federally-funded education programs who allege sex-based retaliation. Allowing concurrent remedies under both Title VII and Title IX was a Congressional policy choice, the court found.

The Third Circuit concluded that Title VII’s analytical framework generally applies in analyzing Title IX claims of retaliation and quid pro quo harassment. (The court did not reach that question on Doe’s hostile environment claim because that claim was time-barred.) Noting that Title IX was enacted under Congress’s Spending Clause power, the court described it as contractual in nature: an entity agrees to abide by Title IX’s mandates in order to obtain federal funds. Therefore, Title IX also imposes a “notice requirement” that precludes a damage award in a private discrimination action unless the defendant entity had adequate notice that it could be liable for the alleged conduct. The court found this notice requirement was met by the Supreme Court’s decision in Cannon, as well as subsequent decisions from several other circuits.