Is Your Grievance Procedure Preempted by Title IX?

Maybe.

In a novel decision, the New Jersey Supreme Court held in Rutgers v. AFSCME, Local 888, that the 2020 Title IX regulations preempted the grievance procedure in a collective bargaining agreement with a state university because the grievance procedure was in direct conflict with Title IX regulations.  The decision tracks the well-known principle that parties to a collective bargaining agreement cannot contract around federal or state law requirements.  Although this decision is limited to the specific grievance procedure in the Rutgers collective bargaining agreement, the reasoning in the decision could apply to all institutions subject to Title IX which have a unionized workforce, including boards of education, and both public and private universities. 

Summary of the Decision

The university investigated the conduct of an employee following an allegation of sexual harassment.  After substantiating that allegation, pursuant to the grievance procedures of its Title IX policy, the university terminated the employee. 

The union grieved the termination under the collective bargaining agreement, but the university refused to process the grievance, taking the position that Title IX preempted the agreement’s grievance procedure.  Under the agreement’s arbitration process, only the disciplined employee and the union had appeal rights – not the employee who filed the Title IX complaint.  This conflicts with the Title IX regulations that require equal participation by both the alleged victim and alleged harasser.

The union then filed a complaint with New Jersey’s Public Employment Relations Commission (“PERC”) for the university’s failure to comply with the collectively bargained grievance procedure. 

The university maintained its position that Title IX preempted the grievance procedure, but PERC disagreed.   PERC ordered the university to proceed with arbitration, and an intermediate appellate court sustained PERC’s decision. The New Jersey Supreme Court reversed, holding that the collective bargaining agreement’s grievance arbitration procedures conflicted with Title IX and were thus preempted by federal law.

What are the practical implications?

The decision applies only to the grievance procedure in the Rutgers collective bargaining agreement, but its reasoning arguably applies to all institutions subject to Title IX.  This means that, in the event an institution disciplines a union member through the Title IX process, the institution could take the position that the discipline (up to and including termination) cannot be grieved.  Instead, it must run through the Title IX appeal process, which affords the alleged victim and the accused equal participation rights.   Of course, as the Rutgers decision is not binding on other states (or even on other collective bargaining agreements), the institution should recognize that the affected union may then file a complaint or charge with the governing labor board.

Educational institutions are advised to consult with labor counsel regarding the interaction between Title IX and any collectively bargained grievance procedure.