Title IX and Employment Discrimination: A Wrong in Search of a Remedy.

(Excerpt) Since the early 1960's when the struggle for women's rights gained renewed strength and hope from the civil rights movement, a number of federal laws have been enacted to protect the rights of women in employment. Among these laws are included Title VII of the Civil Rights Act of 1964 as amended in 1972 (hereinafter referred to as Title VII) which prohibits employment discrimination based upon sex in addition to the grounds of race, color, religion and national origin; Executive Order 11375 which prohibits sex discrimination by employers holding federal contracts; and the Equal Pay Act of 1963 as amended in 1972 which prohibits unequal pay on the basis of sex. In addition, individual states have passed legislation which provides further protection to the rights of women workers, such as the New York State Human Rights Act. When compared to the scope and enforcement procedures of the foregoing laws, Title IX of the Education Amendments of 1972 (hereinafter referred to as Title IX) takes on a particular significance as the first legislative enactment to move beyond the limits of sex discrimination in employment and extend the protection of the laws to students enrolled in identified educational institutions. The enforcement of Title IX by the Office for Civil Rights (hereinafter referred to as OCR) with possible termination of federal funding for non-compliance differentiates the Act from its predecessors. Several interpretive questions have arisen since Title IX was enacted in 1972. In their attempts to give shape to a vaguely worded statute, the courts have analyzed legislative history and statutory language and have considered various analogies to Title VI of the Civil Rights Act of 1964 (hereinafter referred to as Title VI), a similarly worded statute that prohibits race discrimination in federally assisted programs. The most widely litigated question arising under Title IX is whether the statute covers employment discrimination, i.e., whether the Department of Health Education and Welfare (hereinafter referred to as HEW) acted ultra vires in promulgating regulations governing employment pursuant to Title IX.