A federal judge from the Central District of California denied Pepperdine University’s motion to dismiss several Title IX-related claims, which were brought by two of its former women’s basketball players, who claimed they were discriminated against because of their lesbian relationship.
The plaintiffs in the case are Haley Videckis and Layana White. Videckis is a former member of Pepperdine’s women’s basketball team who transferred to Pepperdine from Arizona State University in July 2013. White is a former member of Pepperdine’s women’s basketball team who transferred to Pepperdine from Arizona State University in January 2014.
Meanwhile, Ryan Weisenberg is the head coach of the Pepperdine women’s basketball team. Finally, Adi Conlogue is an athletic academic coordinator of the Pepperdine women’s basketball team.
Starting in February 2014, the plaintiffs alleged that Conlogue started holding individual meetings with each of the plaintiffs in order to determine their sexual orientation and their relationship status, according to the complaint. The questions consisted of asking, among other things, how close the plaintiffs were, whether they took vacations together, where they slept, whether they pushed their beds together, whether they went on dates, and whether they would live together. The questioning allegedly lasted at least through June 2014.
The plaintiffs further alleged that, in the spring of 2014, Coach Ryan and others on the staff of the women’s basketball team came to the conclusion that the plaintiffs were lesbians and were in a lesbian relationship. The plaintiffs also alleged that Coach Ryan and the coaching staff were concerned about the possibility of the relationship causing turmoil within the team. The plaintiffs alleged that, due to their concerns, Coach Ryan and members of the coaching staff harassed and discriminated against the plaintiffs in an effort to force the plaintiffs to quit the team.
The plaintiffs complained to the head coach, who promised to assign a monitor to their meetings. Yet, more examples of discrimination followed, according to the plaintiffs.
They even went so far as to complain to the athletic director (AD). After multiple complaints, the AD launched an investigation, which involved the Title IX coordinator.
On November 7, 2014, they received a letter from the Title IX coordinator which stated that there was “insufficient evidence to conclude that harassment or sexual orientation discrimination had occurred,” according to the plaintiffs.
The plaintiffs sued. Pepperdine moved to dismiss, arguing that Title IX did not cover claims based on sexual orientation discrimination. The court granted the university’s motion, but left the door open for the plaintiffs to file an amended complaint.
The plaintiffs embraced that opportunity, alleging seven causes of action: (1) violation of the right of privacy under the California Constitution; (2) violation of California Educational Code §§ 220, 66251, and 66270; (3) violation of Title IX – deliberate indifference; (4) violation of Title IX – intentional discrimination; (5) violation of Title IX – retaliation for complaints against discrimination; (6) violation of the Unruh Act, California Civil Code §§ 51 et seq.; and (7) intentional infliction of emotional distress.
Pepperdine filed another motion, arguing this time that the plaintiffs’ third, fourth, and fifth causes of action should be dismissed for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b) 6.
Specifically, it claimed that:
Title IX does not apply to claims based on sexual orientation discrimination;
The plaintiffs’ allegations do not support a Title IX claim based on gender stereotype discrimination; and
The Title IX claims should be dismissed because they are uncertain and not legally cognizable.
Pepperdine also alleged that the fifth cause of action, for retaliation under Title IX, fails because the plaintiffs have not alleged any actionable retaliation.
Title VII and Its Connection to Title IX in the Instant Case
On its analysis, the court wrote that “courts often look to interpretations of Title VII for reference,” when “interpreting Title IX.” See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992). The Ninth Circuit held that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards to apply under Title IX as had been developed under Title VII.” Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir. 2012).
This is relevant because of Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001), which held that discrimination against either a man or a woman on the basis of gender stereotypes is prohibited. “In Nichols, the Ninth Circuit held that a male restaurant employee who was discriminated against at work for, among other things, walking ‘like a woman’ and not having sexual intercourse with a female waitress friend had established an actionable claim for sexual harassment under Title VII,” wrote the court.
“The plaintiffs in this case argue that they have stated an actionable Title IX claim because Title IX covers sexual orientation discrimination, and even if Title IX does not explicitly cover sexual orientation discrimination, the actions alleged in the (amended complaint) constitute gender stereotype discrimination. Further, they argue that the TAC alleges a straightforward claim of discrimination on the basis of sex.”
The court agreed, finding that “sexual orientation discrimination is a form of sex or gender discrimination, and that the ‘actual’ orientation of the victim is irrelevant. It is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes. To do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender.”
The court then looked at the question of gender stereotype discrimination and sided with the plaintiffs again.
“If the women’s basketball staff in this case had a negative view of lesbians based on the lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination,” wrote the court. “Consequently, the plaintiffs have stated a claim for discrimination because they allege that Pepperdine treated them differently due to their perceived lack of conformity with gender stereotypes, and further that Pepperdine discriminated against them based on stereotypes about lesbianism.”
Turning to the last question about whether the plaintiffs have stated a claim that they were discriminated against because of their sex, the court answered in the affirmative.
The plaintiffs “allege that they were told that ‘lesbianism’ would not be tolerated on the team. If the plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. The plaintiffs have stated a straightforward claim of sex discrimination under Title IX.”
Finally, the court examined Pepperdine’s challenge of the plaintiffs’ fifth cause of action, for retaliation under Title IX.
“Here, the plaintiffs have clearly pled a plausible claim for retaliation,” it wrote. “(They) were engaged in protected activity. They complained to the coaching staff and Pepperdine’s Title IX coordinator about the harassment they suffered. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005) (Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action.).
“Pepperdine argues that because the plaintiffs tried to hide their relationship status, they therefore never could have made a complaint about discrimination. This argument is without merit. The plaintiffs clearly allege that they complained to the coaching staff and school officials about the intrusive questioning and harassment to which they were subjected. The fact that the plaintiffs may never have explicitly told school officials that they were dating is irrelevant to whether they complained that they were being harassed. Again, requiring that the plaintiffs disclose their sexual orientation or relationship status improperly focuses the inquiry on the status of the victim rather than the bias of the alleged harasser, and imposes a burden that Title IX does not contemplate.”
Haley Videckis and Layana White v. Pepperdine University; C.D. Cal.; Case No. CV 15-00298 DDP (JCx), 2015 U.S. Dist. LEXIS 167672; 12/15/15
