By Beth Anne Jackson and Allison Shelton, Brown & Fortunato, P.C.
In its January opinion in Aguiluz v. Univ. of Tex. Health Sci. Ctr. at San Antonio, the United States District Court for the Western District of Texas, denied the motions of the University of Texas Health Sciences Center – San Antonio (UTHSCSA) to dismiss the retaliation and other claims of Dr. Cesar Aguiluz, a graduate of its surgical residency program. The court’s opinion clarifies that depriving a resident of opportunities after a complaint of sexual harassment is filed against an educator/physician can subject a residency program – which, by its nature, creates both employer-employee and educational institution-student relationships – to potential liability under both Title VII and Title IX.
Title VII prohibits employers from discriminating against employees based on sex. Title IX provides that no person shall be excluded from participation in, be denied the benefits of, or be subject to discrimination on the basis of “sex.” Pursuant to the June 2020 U.S. Supreme Court decision in Bostock v. Clayton County, discrimination based on a person’s homosexuality or gender identity is necessarily based on “sex” and therefore violates Title VII. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” wrote Associate Justice Neil Gorsuch in the Court’s opinion. This reasoning is widely expected to be applied to Title IX by the lower courts.
Aguiluz claimed that he was subjected to harassment “based on his status as a gay male who also didn’t conform to typical male stereotypes” by Dr. Wang, the program director of the plastic surgery department at UTHSCSA. Aguiluz alleged that Wang’s harassment included mocking Aguiluz’s hairstyle and appearance, asking Aguiluz to bend over and to sit on his lap, and wrongfully insinuating to colleagues and hospital management that Aguiluz was HIV positive. Aguiluz brought the issues to various program officials and was referred to the Title IX office in the fall of 2017.
Aguiluz’s lawsuit alleged the following course of events after his Title IX complaint was made official. After learning of the complaint, Wang repeatedly harassed Aguiluz by telephone and in person. As a result, the Title IX office advised Aguiluz not to go to work for a few days. Aguiluz was then referred to the head of surgery, who assured Dr. Aguiluz that he wouldn’t be retaliated against but also allegedly chastised him for letting the matter be addressed outside of the surgery department.
The lawsuit alleged further retaliation: Aguiluz was assigned to a new program director who was not board-certified, which made it “impossible” for Aguiluz to qualify for board certification upon graduation when there were multiple board-certified physicians who could have served in this capacity and not imposed this impediment; the new program director prohibited Aguiluz from performing surgeries at University Hospital, where his residency program was located, and allowed him to perform surgeries only at Methodist Hospital which, Aguiluz claimed, did not give him the same level of surgical education; and, finally, Aguiluz was prohibited from attending “core” and “required” Thursday afternoon educational conferences in person.
In order to bring a Title VII retaliation complaint, a plaintiff must show that (1) he engaged in an activity protected by Title VII (in this case, filing a complaint about sexual harassment), (2) he suffered an adverse employment action, and (3) there exists a causal link between the protected activity and the adverse employment action. UTHSCSA, in its motion to dismiss, claimed that Aguiluz suffered no adverse employment action: there was no job loss, suspension, salary reduction, reduction of job duties, or any disciplinary action against him. However, the court stated that the allegations in the pleadings – the assignment to a non-board certified program director and the prohibition of participation in the weekly educational conferences and surgeries at University Hospital – were enough collectively to dissuade a “reasonable worker from making or supporting a charge of discrimination,” and, therefore, met the standard for proceeding with a Title VII claim.
The same allegations, the court held, plausibly pled Title IX violations: namely, that UTHSCSA was “deliberately indifferent” to Aguiluz by imposing unfair measures against him even after it determined that Wang committed sexual harassment in violation of university policy (and was instructed not to contact or harass Aguiluz as a result). Because Title IX retaliation claims are analyzed under the same framework as Title VII, Aguiluz met his burden to continue his case at this point.
Although this case is still at a very early stage, and no official findings of fact have been made, it confirms the dual applicability of Title VII and Title IX to residency programs. It further demonstrates the consequences of delegating matters regarding compliance with federal law to persons not well-versed in their obligations. Empowering compliance programs with authority to monitor and, if necessary, correct subsequent actions by other officials in an institution can help maintain a non-discriminatory environment and avoid potential claims.