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March 29, 2005

Supremes Protect Title IX Whisteblower

Critical decision protecting both gender equality and workers rights

In a close 5-4 decision (O'Connor the positive swing vote on this one), the Supreme Court held today that a coach complaining of violations by Birmingham public schools of Title IX rules requiring equality in womens' sports was protected against retaliation for his charges.

Title IX is silent on whether a whistleblower who has not suffered direct harm themselves have a right to sue for such retaliation. However, the court explained that any time a law prohibits discrimination, a person speaking out on the existence of such discrimination -- even if the initial discrimination was not aimed at them -- have themselves suffered discrimination if any retaliation then occurs.

This is a major victory for whistleblowers, since it announces a principle that those witnessing illegal activity need not wait for direct harm to themselves to act:

Without protection from retaliation, individuals who witness discrimination would likelynot report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.
Such witnesses are often the best people to help enforce laws, because they are in a better position to monitor social harm than government agencies:
teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.
How far this principle will be expanded to other areas of the law will be seen, but it does mean that the failure of a law to specifically protect whistleblowers does not automatically shut the court room door to a legal claim.

Posted by Nathan at March 29, 2005 05:02 PM