On December 11, 2023, a federal jury concluded that Thomas Jefferson University and Thomas Jefferson University Hospitals, Inc. (Jefferson) damaged Dr. Abraham in the amount of $15 million. Dr. Abraham was an orthopedic surgeon who formerly held clinical privileges and a faculty appointment at the hospital. The jury found that Jefferson violated Title IX when it failed to properly investigate his claims for sexual misconduct against a colleague and acted with a bias against him since the offending party was female.

Dr. Abraham alleged he held a party in his home in June 2018 at which a “sexually aggressive” resident physician from Jefferson made unwanted sexual advances towards him. Dr. Abraham was intoxicated at the time. After the party, the resident and her husband called Dr. Abraham and attempted to blackmail money from him. After Dr. Abraham filed a complaint against the resident, she then in turn filed a complaint against Dr. Abraham alleging sexual harassment over the same incident. An investigation was subsequently initiated by Jefferson.

According to Dr. Abraham, Jefferson coerced him into taking a leave of absence during the investigation of the complaint while not asking the same of the resident. Dr, Abraham further alleged that Jefferson failed to investigate his allegations or the potential for retaliation on the resident’s part, and failed to review potentially exculpatory evidence, including a threatening voicemail from the resident’s husband.

As a Title IX case, the issue was whether there was gender bias or discrimination on the part of Jefferson in conducting its investigation. Jefferson’s attorneys prepared a 61-page report regarding their Title IX investigation, which Dr. Abraham alleged was biased against him because of his gender, and resulted in the termination of his relationships with Jefferson.

Title IX is a federal statute, ratified in 1972 as one of the Education Amendments, intended to protect students and other individuals from discrimination based on sex in education programs or activities that receive federal financial assistance. The statute applies to institutions that receive federal financial assistance from the U.S. Department of Education (ED), which includes both state and local educational agencies. Title IX’s protections extend to all aspects of a school’s “programs and activities,” including admissions, access to courses and classes, athletics, including resources, athletic facilities and athletic opportunities provided to students.

While Title IX governs educational institutions, employers should be aware of the facts of this case as the discrimination alleged and concluded by the jury to have occurred, can also occur until Title VII of the Civil Rights Act.  As in most claims of discrimination, the facts of the circumstances of an employee’s performance are considered. However, it can also involve the facts surrounding a specific alleged incident involving sexual harassment and retaliation. As a result, if this incident involving Dr. Abraham and the resident had occurred in the private sector, Title VII would provide protection to both Dr. Abraham and the resident in terms of a fair and thorough investigation and no discrimination against the other based on gender. In this case, the jury found that Abraham was discriminated against because of his gender since the other complaining party was female. This could very well have occurred in the private sector.

Documentation as to an employee’s pay, performance, incidents and/or time at a company should be maintained from the start of an employee’s employment through the end of their employment. In particular, documents to support, explain, and demonstrate the reasons for adverse employment decisions should be carefully collected in “real time” at the time of the decision and maintained. Documented examples of the reasons for an employee’s termination are important and beneficial both for the employee and the employer.

Employers should encourage annual trainings and reviews of their employment policies/employee handbook to continually remind and encourage a work environment free of discrimination.   Employers should also encourage trainings on and protocol as to the preservation and creation of documentation when investigations and resulting adverse employment decisions, of any kind, are made. As previously indicated, documentation of any adverse, of any kind, in an employee’s employment is important because it sets the expectations for the employee and the employer as to the continued relationship. In addition, documented examples to support the reasons for an employee’s termination further provides clarity to both the terminated employee and employer.

Employers should also outline, educate and follow through with proper investigation protocols when a claim (such as in the Abraham case) and/or a claim for any kind of discrimination occurs within an employee’s scope of work.

If you would like to consult with an attorney on issues presented in this article and/or on employment and labor issues, the attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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