Jottings By An Employer's Lawyer

Tuesday, July 10, 2007

The Sandra Day O'Connor Award: MDV for Title IX Retaliation

Timing is everything and Lindy Vivas, former volleyball coach at Fresno State University and plaintiff in a trial that ended yesterday with a jury verdict in her favor awarding her almost $6 million, is the latest proof. See the article in the Seattle Post, Vivas wins suit against Fresno St.

Vivas' claim was that Fresno State retaliated against her in violation of Title IX, a federal program requiring gender equity in sports programs. When Vivas was fired on December 4, 2004, she might not have known it, but the claim that is making her so happy today was hanging in the balance.

Just four days before Vivas was terminated, the Supreme Court heard oral argument in Jackson v. Birmingham Board of Education. Four months later, the Court in a 5-4 decision written by Justice Sandra Day O'Connor extended an implied cause of action it had earlier found under Title IX to also cover retaliation. You can see my initial post on Jackson here.

Although I have just finished an article explaining my view that while the Roberts Court has been generally good for business, on decisions impacting core human resource issues, the record is not so clear, Jackson was one time where who was holding the fifth vote made a decided difference. After yesterday you might even say a 6 million dollar difference.

While Justice Sandra Day O'Connor was penning the majority decision in Jackson , then Chief Justice Rehnquist and current Justices Scalia and Kennedy were signing onto the vigorous dissent of Justice Clarence Thomas that the majority was "creating remedies out of whole cloth" and "substituting its policy judgments for the bargains struck by Congress as reflected in the statute's text."

If the case had been decided just one year later, which given the course of litigation that winds its way to the Supreme Court is really just a matter of happenstance, I don't think there is any doubt how the new Chief Justice Roberts and Justice O'Connor's replacement, Justice Alito, would have been aligned.

Yesterday's MDV for Vivas may never have to be paid as it must now start its way through post-verdict and the appeal process, but it is unlikely that you will be able to convince anyone involved in this matter that Supreme Court appointments don't matter.

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