By: Amanda Wingfield Goldman and Vinson J. Knight
The U.S. Court of Appeals for the Third Circuit recently held that Title IX, 20 U.S.C. § 1681, which prohibits sex discrimination in any federally funded education program or activity, extended protection to a medical resident who brought suit against a private teaching hospital for sex discrimination, sexual harassment, and retaliation.
In Doe v. Mercy Catholic Medical Center, 850 F.3d 545 (3rd Cir. 2017), the plaintiff was a resident in Mercy’s diagnostic radiology residency program, which was affiliated with Drexel University’s College of Medicine. Doe claimed that Mercy’s residency’s director repeatedly sexually harassed her. Doe alleged that after she reported his conduct human resources, the director and other Mercy employees retaliated against her, resulting in her dismissal from the program.
Residency Programs and Title IX
The Third Circuit noted that Title IX did not define the phrase “education program or assistance,” and found that the hospital’s residency program qualified as a “program or activity,” which extended to programs or activities at a variety of entities, not just the educational institution itself. While Mercy primarily engaged in the business of providing healthcare, the Third Circuit held that Mercy could be subject to Title IX if it also operated an education program or activity. Mercy filed a motion to dismiss the matter, and the court found that Mercy held its programs out to be educational in nature, and that its residency programs were described as “structured educational experience[s].”
Title VII is not an exclusive remedy
Mercy also argued that Doe failed to timely exhaust her administrative remedies by pursuing her claims under Title VII, which it argued was the exclusive vehicle for her claims of sex harassment and retaliation. The court rejected Mercy’s argument and held that Doe’s claims had concurrent applicability under both Title VII and Title IX, and that Title VII was not Doe’s exclusive cause of action for sexual harassment and retaliation.
This is the first time that a court has held that a medical residency program is subject to Title IX. With respect to employee policies, however, hospitals should continue to abide by the mandates of Title VII, which cover the same ground as Title IX. Hospital residency programs can protect themselves by taking proactive action to draft and implement policies and conduct training which prevent sex discrimination, harassment, and retaliation. Hospitals should also provide a mechanism for fielding complaints and conducting investigations to timely address complaints. By treating medical residents like employees, hospitals can better defend against possible Title IX claims from medical residents.
Employee Handbooks – Best Practices
A carefully drafted harassment and discrimination policy is every employer’s first line defense to an employment discrimination claim. Employee handbooks documents serve as a means to inform employees of their rights and obligations in the workplace, and also provide a reference guide for all employer policies, including harassment, discrimination, and retaliation. Requiring all employees to sign and date a statement acknowledging that they received a copy, understand its provisions, and commit to following the guidance contained within serves as a second line of defense in the event that an employer finds itself the subject of an employment discrimination lawsuit.
By creating a policy, an employer also commits its obligation to enforce and follow its own policy. Policies must be consistently followed and enforced to avoid claims of bias, discrimination, or disparate treatment. Training supervisors is paramount to the successful implementation of discrimination, harassment, and retaliation policies.
Employee Complaint Handling and Investigation – Best Practices
Most employers regard complaints as a nuisance. Complaints, however, are actually an asset to employers. If an employee asserts a complaint, it shows that the employee has placed trust and confidence in your organization. Some complaints are legitimate, some are not, but all deserve a timely and thorough response. If an organization does not handle employee complaints properly, it can manifest in a parade of undesirables for your organization – morale drops, productivity drops, employees resign, or worse – an employee reaches outside of your organization for help.
Supervisors play a key role in complaint handling, and must adhere to and promote information communicated to the workforce regarding complaint handling. It is their job to communicate to their employees that if an employee does not feel comfortable bringing a complaint directly to his or her supervisor, that they have the option to go around the supervisor. If supervisors view complaints as a positive means to problem solve in the workplace, employers can avoid litigation.
There are several important steps in complaint handling. First, let the employee be heard. Again, if an employee feels like his or her employer is not listening, he or she may turn to outside sources. Use good documentation, with the understanding that such information may be discoverable and should stick to accurate reporting of the facts, without extraneous information or subjective interpretation. Second, check the facts, which includes obtaining both sides the story without making a judgment call. Third, follow up with the employee to let the employee know that you are investigating. If the complaint is unfounded, offer the employee the opportunity to appeal the issue to a higher level of supervisory authority. Lastly, follow through. If a mistake is made, graciously admit it and take immediate action to correct it. Check back with the employee to determine if the problem has been eliminated, or in the case an unfounded complaint, whether there is new information to support his or her claims.
Practical application in light of Doe v. Mercy
If you follow these practices and you have been sued, you have laid fertile ground for your employment attorney to obtain summary judgment in the case. If a medical resident, like Doe, complains of sexual harassment and has been treated like a hospital employee who signed an acknowledgement of the hospital’s handbook, and failed to avail herself of the hospital’s reporting and complaint process, the hospital now has an excellent defense against the resident’s claim. Or, the hospital also has an excellent defense if the resident availed herself of the complaint process and her complaint was properly and timely handled, with a reasonable outcome with which she disagreed, and which was upheld on appeal to a higher supervisory level. Such claims, when properly handled by an employer, are often placed in an excellent posture for disposal on summary judgment.
Hospital residency programs should examine their programs in light of the Doe v. Mercy decision. Hospitals must determine whether their programs fall under Title IX’s umbrella in light Doe v. Mercy factors and be prepared to find themselves in court, given that medical residents have an immediate path to litigation without being bound by the administrative complaint process of Title VII to pursue a sexual harassment or sex discrimination claim. Hospital residency programs, like all employers, can protect themselves against Title IX claims through policies and training which prevent sex discrimination, harassment, and retaliation, and they should provide a mechanism for fielding complaints and conducting investigations to timely address complaints.
 The plaintiff was a medical resident suing under the pseudonym “Doe.”
 It is important to note that this case was brought on a motion to dismiss, and the merits are still pending. For consideration of a motion to dismiss, the court accepts the plaintiff’s allegations as true. The court’s finding is limited to Mercy’s “status” as qualifying as a “program or activity” under Title IX.
A version of this article was first published in Law360 on May 9, 2017.