6th Circuit: Use Same Test for Retaliation Under Title IX as is Used for Title VII

In Jackson v. Birmingham Bd. Of Educ., the Supreme Court recognized retaliation as an actionable claim under Title IX, holding that “when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” 544 U.S. 167, 174 (2005). However, while the court in Jackson recognized retaliation under Title IX, it did not provide details as to the elements that must be proven to succeed on a Title IX retaliation claim.

Last week, in Bose v. Bea, the Sixth Circuit Court of Appeals held that the elements that must be shown for a successful retaliation claim under Title IX are the same elements that have already been delineated in Title VII cases. A plaintiff must show “that (1) [s]he engaged in protected activity, (2) [the funding recipient] knew of the protected activity, (3) [s]he suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action.”

The Sixth Circuit Court of Appeals includes the states of Tennessee, Kentucky, Ohio and Michigan. In holding that the elements for a Title IX retaliation claim are the same as under Title VII, the Sixth Circuit joins the lead of the sister courts of the Ninth and Second Circuit Courts of Appeals who have already reached the same conclusion. See Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012); Papelino v. Albany Coll. Of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011).