United States: Third Circuit Endorses Title IX And Title VII Claims Of Medical Resident

Should a medical resident alleging sexual harassment and retaliation be treated as: (i) an employee who can seek relief under Title VII; (ii) a student who can seek relief under Title IX; or (iii) both? And if the answer is "both," do the administrative prerequisites of Title VII and its well-established case law apply to Title IX claims? In a recent decision, the U.S. Court of Appeals for the Third Circuit answered "both" but left other important questions unanswered.

Doe v. Mercy Catholic Medical Center, No. 16-1247, 2017 WL 894455 (3d Cir. Mar. 7, 2017), is significant in four key respects:

  • It is the first circuit court decision to determine that a private teaching hospital is subject to Title IX so long as its mission, "at least in part," is educational. Id. at *7.
  • A first-of-its-kind list of factors that support classifying a program as a Title IX "education program or activity" was recognized. Id. at *6.
  • Title IX rights were deemed independent of and not preempted by Title VII, ending the split within the district courts of the Third Circuit and joining the opinion of the First and Fourth Circuits. Notably, the Fifth and Seventh Circuits disagree. The issue, which had not been addressed at the circuit level in nearly 20 years, is now ripe for consideration by the U.S. Supreme Court.
  • The administrative requirements associated with Title VII (e.g., the 180-day deadline for filing a Charge with the EEOC) were ruled as not applying to Title IX claims. However, the Third Circuit left open the possibility that well-established Title VII case law would apply to Title IX claims.

* * *

Mercy Catholic Medical Center is a private teaching hospital in Philadelphia, Pennsylvania, that is affiliated with Drexel University's College of Medicine. Mercy has four accredited medical residency programs, one of which the plaintiff, proceeding anonymously as Jane Doe, was enrolled in as a graduate medical resident in 2011. According to Doe's motion papers, Mercy accepts federal funding for its program through Medicare.

In the complaint, Doe alleged that she was sexually harassed and then retaliated against by the director of the residency program, whom she called Dr. James Roe. Doe complained about Dr. Roe's advances to Mercy's Human Resources Department but, according to her complaint, nothing was done. Ultimately, Doe alleges that she was dismissed from the program at Dr. Roe's suggestion and in retaliation for rebuffing his advances.

Two years after her dismissal, Doe brought suit against Mercy alleging three claims under Title IX: quid pro quo harassment, hostile environment and retaliation. The United States District Court for the Eastern District of Pennsylvania dismissed Doe's complaint on the grounds that Title IX did not apply to Mercy as its residency program did not qualify as an "education program or activity" as required by 20 U.S.C. §1681(a). The court further held that even if Title IX did apply, Doe could not use Title IX to circumvent Title VII's administrative requirements – which Doe had not fulfilled – since Congress had intended Title VII to be the "exclusive avenue for relief" for employment discrimination claims. Doe v. Mercy Catholic Med. Ctr., 158 F.Supp.3d 256, 261 (E.D. Pa. Jan. 26, 2016). Doe appealed the District Court's decision to the Third Circuit.

The first question the Third Circuit confronted was whether Mercy's residency program qualified as an "education program or activity" under Title IX. The Court started its analysis with the Civil Rights Restoration Act of 1987 (the "CRRA"), which amended Title IX and in which Congress defined the phrase "program or activity" to mean "all of the operations" of a number of different types of entities, including "private organizations ... principally engaged in the business of providing education, health care, ..." 20 U.S.C. § 1687(3)(A) (emphasis added). The Third Circuit ultimately adopted the definition created by the Second Circuit 20 years ago in O'Conner v. Davis, 126 F.3d 112, 117 (2d Cir. 1997), and held that a "program or activity under §1687" was educational "if it has features such that one could reasonably consider its mission to be, at least in part, educational." 2017 WL 894455 at *6.

The court further declared that whether a program or activity is sufficiently educational to qualify under Title IX is a mixed question of law and fact. However, when the facts are uncontested, the following guidelines support finding a "program or activity" an "education program or activity" under Title IX:

  1. the program is incrementally structured through a particular course of study or training, whether full- or part-time;
  2. the program allows participants to earn a degree or diploma, qualify for a certification or certification examination or pursue a specific occupation or trade beyond mere on-the-job training;
  3. the program provides instructors, examinations, an evaluation process or grades, or accepts tuition; and/or
  4. the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.

(Id. at *6)

Applying this standard to the facts at hand, the Third Circuit rejected the lower court's reasoning that Mercy's program was not an "education program" because graduate residents already had a degree, didn't pay tuition and were paid for their services. Rather, the Third Circuit found persuasive the fact that Mercy is a private organization principally engaged in the business of providing health care; it is affiliated with Drexel Medicine, a medical graduate school; Mercy runs an accredited residency program in which residents are enrolled in a regulated program of study and training which requires students to learn and train under faculty members, present case presentations under supervision, attend lectures at Drexel and sit for annual examinations. Ultimately, residents become eligible to take board certification examinations, necessary to become practicing physicians. Furthermore, Mercy accepts Medicare payments to fund its programs.1 Id. at *7.

Having determined that Mercy's program falls within the parameters of Title IX, the court next tackled the question of whether Doe has a private right of action under Title IX. Mercy argued that, as a resident, Doe was an employee and therefore had to bring her sexual harassment and discrimination claims under Title VII, which requires exhaustion of administrative remedies prior to seeking relief in court. Title IX, comparatively, has no administrative hurdles and, as Mercy argued, was therefore an "end-run" around Title VII's administrative scheme. At the time the Mercy case was heard by the Third Circuit, there was a split within the district courts in the circuit as to whether Title VII preempted employment discrimination claims under Title IX.

Relying upon six Supreme Court decisions regarding the intermingled and often inconsistent remedies available to Title VII and Title IX complainants, the Third Circuit held that Doe's potential concurrent "employee" status did not preclude her from bringing a private cause of action under Title IX. The Circuit's holding was based on the following four "guiding principles": (1) private-sector employees are not limited to Title VII as their only means of relief from workplace discrimination; (2) it is a matter of "policy" for Congress to determine whether it is undesirable to allow education-program employees to plead their way around Title VII's administrative requirements; (3) the provision in the statute, which implies Title IX's private cause of action, 20 U.S.C. §1681(a), encompasses employees, not just students; and (4) as the Supreme Court pronounced in Jackson v. Birmingham Bd. Of Educ., Title IX's implied private cause of action extends to employees of federally funded education programs who allege sex-based retaliation claims. 544 U.S. at 171.

The Third Circuit's decision follows similar precedents in the First and Fourth Circuits. However, with the rapidly expanding body of case law in this area, there is now a definitive circuit split, as the Fifth and Seventh Circuits have concretely held that Title VII provides the "exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions" and "[a]llowing any private Title IX claim to proceed there ... would 'disrupt' Title VII's 'carefully balanced remedial scheme for redressing employment discrimination.'" Lakoski v. James, 66 F.3d 751, 753-54 (5th Cir. 1995); accord Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 861-62 (7th Cir. 1996).

While the Third Circuit's precedential opinion in Mercy will undoubtedly expand Title IX's reach, the court declined to address whether the rights of Title IX plaintiffs are completely on par with the rights of those who seek protection under Title VII. For example, Doe argued that her hostile environment claim was not time-barred under the "continuing violation doctrine," which is an accepted theory under Title VII jurisprudence that allows a plaintiff to aggregate discriminatory acts that otherwise would not be individually actionable in order to successfully plead a Title VII hostile work environment claim. The Court found that even under the continuing violation doctrine Doe's claim would not be timely because no actionable discriminatory event happened within two years of the date she filed her Complaint, thereby dismissing the Title IX claim but leaving the door open to future Title IX claims based on this theory.


1. On appeal, Mercy argued for the first time that it does not receive federal financial assistance under Title IX because it receives its Medicare payments from contracts of insurance. Since the argument was not raised below the court assumed, without deciding, that Mercy received federal financial assistance under Title IX, and left if for the lower court to address on remand.

Third Circuit Endorses Title IX And Title VII Claims Of Medical Resident

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.