Recent months have ushered in a series of directives from the federal government regarding the applicability and enforcement of certain antidiscrimination laws targeting colleges, universities, and other recipients of federal funding within the scope of Title IX.
In May, the U.S. Department of Justice indicated its intent to implement a new program that could significantly increase exposure for entities who falsely certify compliance with federal antidiscrimination laws, including Title IX.
In July, Attorney General Pam Bondi issued a memorandum setting forth her office’s position regarding certain best practices for avoiding the risk of violations.
While many Americans recognize Title IX as the statutory scheme aimed at achieving gender equality in collegiate athletics, the law is much more expansive, and not solely limited to colleges and universities.
Therefore, considering the federal government’s renewed attention to enforcement of antidiscrimination laws, and its focus on recipients of federal funding, employers across various professions and industries should consider whether and when Title IX may apply to their business, taking into account certain factors articulated by federal appellate courts as being relevant to the analysis.
If an organization is indeed operating within the scope of Title IX, it should consider the attorney general’s “non-binding suggestions” for compliance and assess whether its policies and procedures are sufficient to prevent discrimination “on the basis of sex.”
Additionally, even if Title IX may not apply to an employer, the suggestions from the attorney general should provide some insight into how the present administration will look at sex discrimination claims under Title VII, in particular with respect to provision of gender-neutral or other restroom and locker room facilities.
Renewed Interest in Antidiscrimination Laws
On May 19, the DOJ announced the formation of the Civil Rights Fraud Initiative,1 a program which will purportedly utilize the False Claims Act to “investigate and … pursue claims against any recipient of federal funds that knowingly violates civil rights laws.”
In the memorandum accompanying the announcement, the DOJ explained that the FCA is implicated whenever federal-funding recipients certify compliance with federal civil rights laws, including Title IX, “while knowingly engaging in racist preferences, mandates, policies, programs, and activities, including through diversity, equity, and inclusion programs that assign benefits or burdens on race, ethnicity, or national origin.”
Noting that such a violation could result in treble damages and significant penalties, the memorandum further encourages private parties to initiate lawsuits and litigate claims such that successful whistleblowers may share in the monetary recovery.
The May DOJ memorandum was followed in July 29 by guidance for recipients of federal funding regarding unlawful discrimination from Attorney General Pam Bondi.2
Like the DOJ memorandum, the guidance reiterates that recipients of federal financial assistance, including those charged with Title IX compliance, must comply with their legal obligations not to engage in discrimination based on sex — or as previously referred to: gender.
Further, the guidance notes that sex discrimination under Title IX includes compelling “employees to share intimate spaces with the opposite sex or allowing men to compete in women’s athletic competitions.”
Accordingly, and in light of President Donald Trump’s Executive Order 14168,3 recognizing only two sexes, male and female, and that such sex is assigned at birth, the guidance’s reference to intimate spaces is clearly intended to prohibit transgendered individuals from using a bathroom or locker room facility that does not align with their sex at birth.
And, while the attorney general’s guidance was issued with respect to Title IX, it is not difficult to envision the present administration from using this analysis and guidance to frame investigations under Title VII with respect to sex discrimination.
What is Title IX?
Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs and activities receiving federal assistance. To that end, colleges, universities, and certain other recipients of federal funding are prohibited from, among other things, enforcing institutional policies in a discriminatory manner and failing to protect against sexual harassment and/or violence.
Commonly thought of as a statutory scheme applicable only to educational institutions — or, even, as applicable only to athletics programs within educational institutions — the law itself contains no such limiting provision.
To the contrary, Title IX’s prohibition against sex discrimination applies to “any education program or activity receiving Federal financial assistance.” Thus, employers even outside of the traditional academic sphere should consider whether their operations might fall within the scope of Title IX.
Importantly, an entity must operate an education program or activity to fall within the scope of Title IX. However, whether an entity operates an education program or activity is a somewhat more nuanced question. Answering the first question is straightforward; answering the second — not so much.
Title IX defines “program or activity” to include all operations of the following kinds of entities, so long as any part of the entity receives federal funding:
- Instrumentalities of state or local government;
- Colleges, universities, and other school systems;
- Entire corporations, partnerships, other private organizations and sole proprietorships if assistance is extended to them “as a whole” or they are “principally engaged in the business of providing education, health care, housing, social services, or parks and recreation” activities;
- Entire plants or other “comparable, geographically separate facilit[ies]… in the case of any other corporation, partnership, private organization, or sole proprietorship.”
Accordingly, for most organizations, whether they are in receipt of federal financial assistance is determined by reference to the entire entity or whole organization. That is, for example, even if only a certain program within a university is the recipient of federal funding, the entire university is nevertheless charged with Title IX compliance.
Education Programs and Activities
Notwithstanding the relatively forthright definition outlined above, whether a business operates an education program or activity has been the subject of extensive litigation. That litigation has resulted in the issuance of a handful of appellate decisions that employers may consider in assessing whether they are subject to the proscriptions of Title IX.
Nearly three decades ago, the U.S. Court of Appeals for the Second Circuit — which has appellate jurisdiction over federal courts sitting in Connecticut, New York and Vermont — considered a case brought by a student who had been required by her college to perform work at one of the college’s approved organizations.
In that case, O’Connor v. Davis, the college arranged for the student to serve as an unpaid intern at a hospital, where she was later sexually harassed by a superior. Rejecting the student’s argument that on-the-job training was sufficient vocational education to warrant Title IX’s protections, the court reasoned that the hospital’s primary purpose was not to educate.
In its 1997 decision, the court concluded, therefore, that the hospital was not operating an education program or activity within the meaning of Title IX. In so doing, the court explained that the hospital did not accept tuition, had no teachers, offered no evaluation process, and required no regular hours or course of study.
Twenty years later in 2017, the U.S. Court of Appeals for the Third Circuit — which has appellate jurisdiction over federal courts sitting in Delaware, New Jersey and Pennsylvania — reached the opposite conclusion when it assessed whether Title IX was applicable to a hospital operating a residency program in Doe v. Mercy Catholic Medical Center.
The Third Circuit agreed with the Second Circuit that a program or activity is an education program or activity if it has features such that one could reasonably consider its mission, at least in part, to be educational.
But because the defendant hospital’s mission was, at least in part, educational — as evidenced by, among other things, its affiliation with a medical school — the court concluded that the hospital’s operation of the physician residency program fell within the scope of Title IX.
The U.S. Court of Appeals for the Sixth Circuit — with appellate jurisdiction over federal courts in Kentucky, Michigan, Ohio and Tennessee — added additional context to the analysis with its 2022 decision in Snyder-Hill v. Ohio State University.
There, the court considered a suit brought by several individuals based on alleged sexual abuse by a university physician and athletic team doctor.
In deciding whether a nonstudent and nonemployee could bring a Title IX claim, the court concluded that “education program or activity” is defined broadly and extends to situations in which individuals are, for example, utilizing a university’s library, participating in a campus tour or attending a sporting event.
Thus, an individual who attended a summer wrestling camp at the university could certainly bring a claim under Title IX.
Employer Considerations
Taken together, these decisions suggest that the following factors should be considered when evaluating whether an organization may be subject to Title IX:
- Is the organization’s mission or primary purpose to educate? This is a strong indicator that an entity operates an education program within the meaning of Title IX.
- Does the organization have some affiliation with a university or other school system? Such an affiliation may be evidenced by a contractual arrangement, shared staff or common funding.
- Does the organization accept tuition or something similar? The collection of fee payments in exchange for instruction also tends to suggest that an entity operates an education program.
- Does the organization employ teachers or other formal instructors?
- Does the organization require regular hours or course study? Even if the course study is secondary to practical, hands-on experiential training, it may indicate that the organization is responsible for complying with Title IX.
- Does the organization allow participants to earn or qualify for a degree, diploma or certification beyond mere on-the-job training?
- Does the organization offer an evaluation process for participants? The use of grading systems, pass-fail evaluations and/or other similar processes may all be relevant to the analysis.
- Does the entity offering or accrediting the organization’s program hold it out as educational in nature?
- Does the organization utilize the resources or facilities of a university or other school system? For example, does the organization offer any programming on a college or university campus?
While no one factor appears to be necessary or sufficient alone, each should invite further analysis by the organization, to determine whether it is subject to Title IX compliance. If the organization does operate an education program within the scope of the law, it should be cognizant of the DOJ’s stated intention to pursue claims against those who falsely certify compliance.
Before issuing any such certification, the organization should assess whether its policies and procedures are legally sufficient to ensure that “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in connection with the organization’s operations.
The organization may wish to consider the attorney general’s nonbinding suggestions in analyzing whether it may lawfully certify compliance.
Further, whether Title IX has application to the organization or not, the guidance and the nonbinding suggestions from the present administration can be used to assist in evaluating potential sex discrimination claims under Title VII.
All employers are subject to the prohibitions in Title VII. As such, when the U.S. attorney general suggests that sex discrimination may include requiring a person of one sex having to share a bathroom with a person who was not born to the same sex, all employers should sit up and take heed.
结论
Contrary to popular belief, Title IX’s applicability extends far beyond the realm of collegiate athletics. And while neither the May DOJ memorandum nor the July attorney general guidance are binding law, employers subject to Title IX or other federal nondiscrimination laws — like Title VII — should still take this opportunity to review their existing policies and consider whether such policies comply with federal law.
Employers that find themselves the target of the Civil Rights Fraud Initiative or other law-enforcement action should understand their rights and obligations under these laws and their ever-evolving enforcement schemes.
This article was originally published in Law360 on September 10, 2025, and is republished here with permission.
[1]https://www.justice.gov/opa/pr/justice-department-establishes-civil-rights-fraud-initiative.
[2]https://www.justice.gov/ag/media/1409486/dl?inline
[3]https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/
