Jottings By An Employer's Lawyer

Tuesday, March 29, 2005

Whistleblowing in the Supreme Court, A Good Day


With not only the men's, but also the women's Final Four barreling down on us, today's decision by the Supreme Court finding an implied cause of action for retaliation in Title IX was nothing if not timely. Jackson v. Birmingham Board of Education (U.S. 3/29/05) [pdf]. And that it was the complaints of the unequal treatment of his team by the male coach of a girl's basketball team that led to today's decision is nothing but a touch of irony.

Although hailed as an important case for women and women's sports, the decision is also a testament to the esteem in which many courts, including clearly the Supreme Court, hold the act of whistleblowing. So much in this case that without it the majority felt the noble purposes of Title IX itself would not be obtained. As Justice O'Connor noted in her majority opinion:

We agree with the United States that [these objectives] "would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation." .... If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result.

And it was not any disagreement with the Court's view of whistleblowers that caused problems for the minority. What they objected to was the expansion of the statute beyond what they read as the clear Congressional intent. As Justice Thomas wrote:

By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose. In doing so, the majority substitutes its policy judgments for the bargains struck by Congress, as reflected in the statute’s text. The question before us is only whether Title IX prohibits retaliation, not whether prohibiting it is good policy.

Given the role of whistleblowers in recent times, and in the view of many, the number of whistles that still need blowing, today's decision is not terribly surprising. And employers would do well to remember the sound, long after the din of March Madness has faded away.


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