A panel of the 10th Circuit Court of Appeals on Jan. 14 heard oral arguments in a case dealing with false rumors about sexual relationships between a student and professor, what counts as sex discrimination and whether a middle-aged male can be protected under Title IX.
The case in question involves Ronald Throupe, a veteran real estate professor at the University of Denver’s Burns School of Real Estate & Construction Management, and his relationship with Xue Mao, a graduate student at the school and a Chinese national. Because of their close relationship in both personal and professional spheres, the two became the subject of rumors across the school about a supposed affair resulting in an investigation and the lawsuit.
The district court granted summary judgement in favor of DU in 2020 on Throupe’s Title IX claim against it. Throupe appealed the decision.
Nathaniel Smith of the Law Office of Nathaniel B. Smith, who represented Throupe at oral arguments, outlined what he saw as the core question of the case: Can DU establish and enforce faculty-student roles when the expectations enforced collide with the notions of sex or gender, or sex stereotypes, in the way they handle their employees?
While DU can manage teacher-student roles, Smith argued that once gender becomes part of their considerations, they cross the line of infringing upon Title VII and Title IX and establish liability. Smith told Law Week that Throupe’s treatment and the rumors about him were a result of his gender.
Jim Goh, a partner at Constangy Brooks Smith & Prophete representing DU, told the panel, “There is no evidence that Mr. Throupe was singled out and targeted because of his gender.”
The Title IX allegations were part of a long string of events starting in 2013, according to the district court’s opinion. Throupe alleged that Barbara Jackson, the new chair at the Burns School at the time, had planned to eliminate the real estate section and induce existing real estate professors to resign. Throupe said that involved using less-favorable teaching schedules “and spreading rumors about such professors’ alleged inappropriate behavior with students.”
The rumors about Throupe started around 2014 after a gala event where faculty members were to bring a guest — most brought their spouses, but Throupe brought Mao after his wife declined to attend. Because the school offered to pay the cost of the ticket for a significant other but not a guest, Throupe said Mao was his significant other. Rumors sprouted about a relationship between the two, with other faculty members implying “something is going on there.”
“Even accepting the facts in the light most favorable to Throupe regarding the rumors, the District Court found no evidence indicating that the rumors were instigated or perpetuated because Throupe was a man instead of a woman,” the appellee’s brief states.
In fact, Mao was personally close with both Throupe and his family, according to Smith. Mao spent time together at Throupe’s house and with his family. She attended family events and, around 2015, Throupe adopted the adult Mao.
In 2015, Throupe reported to campus workers that Mao had stopped attending classes and he was concerned, according to the opinion. In a following meeting, Throupe revealed that his businesses employed Mao at $100 an hour, paid some tuition and all Mao’s classes for the spring quarter were taught by Throupe.
Concerned over the comments, DU employees reported the relationship and comments to the Office of Equal Employment. Throupe reported to DU’s Title IX Investigator and the Manager of Equal Employment that he believed he was being harassed by the Burns staff. Jackson tried to intervene and prohibit faculty-student interaction between the two.
Eventually, DU’s associate dean emailed Throupe about Mao, acknowledging that a DU investigation of their relationship didn’t indicate a consensual sexual relationship, however, certain parts of the consensual sexual relationship policy were relevant about “asymmetrical positions of power” and perceptions of favoritism.
In 2017 Throupe filed a complaint asserting several causes of action including sexual and racial harassment under Title IX of the Education Amendments Act.
Goh wrote in the appellees’ response brief that Throupe’s Title IX sex discrimination claim is premised largely on circulation of rumors of his extra-marital affair with a student, which Throupe contends constitutes harassment and discrimination on basis of his gender.
Goh said the district court held that “office gossip” and rumors are not necessarily because of sex. Here, both man and woman were subjected to those rumors, and rumor mongers were male and female. Goh did not respond to a request for comment.
When asked by the panel during arguments if DU would have acted differently if it were a female professor with a male student, Smith said there was no doubt in his mind that what transpired here related back to Throupe being a man and Mao being a woman.
Smith said that if Throupe had been a straight female professor and had a close relationship, both personal and professional, with a female graduate student, “no one would’ve thought twice about it.” But, due to publicized cases of older males having questionable relationships with younger women, Smith said men can be cast in a role where all they care for is a sexual relationship. In these instances, the only motive that society can see is a sexual one — not one where the man is acting out of kindness.
However, he added that universities have a duty to investigate situations such as Throupe’s, but once DU had done so and found no sexual relationship, they continued taking action against Throupe based on perceptions.
For Goh, the case was not about a campaign of salacious rumors against someone of a specific gender. Goh said that when asked, Throupe could only point to several instances where colleagues of both sexes reported rumors they had heard. When asked if he had heard anyone say that Mao and Throupe were having an affair, the record showed that Throupe responded with no.
Both attorneys felt the U.S. Supreme Court’s recent landmark decision in Bostock v. Clayton County, which found that Title VII protects employees against discrimination because of their sexual orientation or gender identity, also applied to Throupe’s case. While Bostock dealt with anti-gay policies and practices, the Supreme Court essentially held that if an employer were to fire a woman for being a homosexual and then fire a male for being homosexual, that doesn’t negate the discrimination “you’re just doubling down on the discrimination,” Goh said.
Under the Bostock decision, Smith argued that when an impermissible factor becomes a motivating factor, liability is established.
Goh said the Supreme Court established a sex-discrimination test in Bostock, which examines whether changing the employee’s sex would yield a different result. If an employer discriminates against a male for traits it tolerates in female colleagues — that’s sex discrimination.
“Based on Bostock, the central question here is: Would you have tolerated the same conduct in a female professor? And on that, we have no evidence in this case,” Goh said.
The panel asked Goh if there could be a based-upon sex claim, not motivated by gender discrimination, but something innocent of that, and that the means — not the motivation —involved weaponizing sex for accomplishing a non-discriminatory motive. When further asked if that situation would make a claim under Title IX, Goh said that it would not.
“The law is very clear that any discrimination in this context has to be based upon gender, based on sex.”
—Avery Martinez