Keeping Tabs on the Ninth Circuit
June 16, 2023 - This Week at the Ninth

This Week At The Ninth: Title IX and Back Labels

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This week, the Court considers claims of discrimination based on perceived sexual orientation and addresses when a product’s back label can prevent its front label from being misleading.

The Court holds that Title IX bars sexual harassment on the basis of perceived sexual orientation.

The panel: Judges Graber, Bennett, and Desai, with Judge Graber writing the opinion. 

Key highlight: “[A]n employer cannot discriminate against a person—male or female—for failure to conform to a particular masculine or feminine sex stereotype. . . . Here, the harassment allegedly stemmed from the belief that the male Plaintiff was attracted to men instead of women. That harassment is motivated by the stereotype that men should be attracted only to women. Both instances of harassment are motivated by a core belief that men should conform to a particular masculine stereotype. Both are impermissible forms of discrimination . . . .” (Internal citations, quotation marks, and alterations omitted.)

Background: Plaintiff Michael Grabowski alleged that, when he was a first-year student-athlete at the University of Arizona, his teammates subjected him to sexual and homophobic bullying because they perceived him to be gay. The teammates directed homophobic slurs at him on a near-daily basis, and posted an “untrue, harassing, homophobic, and obscene video” about him to a public chat group. Plaintiff and his parents repeatedly reported this harassment to university officials, who dismissed it as plaintiff’s “need to adjust.” After a confrontational meeting with the coaches regarding the bullying, plaintiff was removed from the team and lost his athletic scholarship. 

Plaintiff filed suit, claiming that the Arizona Board of Regents and the University of Arizona violated Title IX by remaining deliberately indifferent to his harassment allegations and retaliating against him. He also sued the university coaches under 42 U.S.C. § 1983, alleging they violated his due process rights by depriving him of property interests in his place on the team and scholarship. The district court granted the defendants’ motions to dismiss and for judgment on the pleadings.

Result: The Ninth Circuit affirmed in part and reversed in part. First, the Court held that discrimination on the basis of perceived sexual orientation qualifies as discrimination “on the basis of sex,” as proscribed by Title IX. 20 U.S.C. § 1681(a).

In Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court held that discrimination based on sexual orientation is a form of sex discrimination under Title VII. Because Title VII and Title IX’s protections are construed consistently, the Ninth Circuit concluded that Title IX similarly bars discrimination based on sexual orientation. The question thus became whether that protection extended to “perceived” sexual orientation. The Court held it did. Again looking to Title VII law for guidance, it observed that the law prohibited “discriminat[ing] against a person—male or female—for failure to conform to a particular masculine or feminine sex stereotype.” Here, plaintiff was harassed because he was perceived to be gay, and the harassment was thus “motivated by the stereotype that men should be attracted only to women.”

Having resolved that legal question, the Court turned to plaintiff’s discrimination claim. A school is liable under Title IX for student-on-student harassment only if “(1) the school had substantial control over the harasser and the context of the harassment; (2) the plaintiff suffered harassment so severe that it deprived the plaintiff of access to educational opportunities or benefits; (3) a school official who had authority to address the issue and institute corrective measures for the school had actual knowledge of the harassment; and (4) the school acted with deliberate indifference to the harassment such that the indifference subjected the plaintiff to harassment.” While the Court concluded that the plaintiff had adequately alleged the first, third, and fourth elements, it held that the second requirement was unsatisfied: Plaintiff did not plead that his academics suffered, that he stopped attending practices or team events, or that he was otherwise denied equal access to the school’s resources and opportunities because of the bullying. But the Court granted plaintiff leave to amend to satisfy this element.

The Court then held plaintiff had stated a Title IX retaliation claim. The Court explained that plaintiff’s reporting qualified as protected activity because he spoke out against sex discrimination; he suffered adverse actions when his scholarship was cancelled and he was kicked off the team; and circumstantial evidence of a causal connection existed in light of (1) the temporal proximity between his reporting and those consequences and (2) his allegations that the coaches “demoralized” him after his complaints.

Finally, the Court affirmed dismissal of the § 1983 due-process claims against the coaches, concluding they were protected by qualified immunity. Plaintiff alleged he had a protected property interest in his place on the track team and in his accompanying scholarship. Without deciding whether either property right existed, the Court determined that neither was clearly established at the time of the alleged violation. 

The Court holds that a product’s use of the phrase “Nature Fusion” is not actionably misleading given the clarification provided on the product’s back label. 

The panel: Judges Gould, Berzon, and Ikuta, with Judge Gould writing the majority opinion and a separate concurrence.

Key highlight: “Although a back label cannot contradict deceptive statements made on the front label, the back label can be used to interpret what is conveyed by the labeling when the front label is ambiguous, as here.”

Background: Defendant Proctor & Gamble sold “Pantene Pro-V Nature Fusion” shampoo and conditioner. After plaintiff Sean McGinity purchased these products at a grocery store, he brought suit alleging violations of California consumer-protection laws. He claimed that while the products’ front labels emphasize the phrase “Nature Fusion” and use images of an avocado, a green leaf, and a gold vitamin, the products in fact “‘contain non-natural and synthetic ingredients.’” The district court dismissed the complaint for failure to state a claim.

Result: The Ninth Circuit affirmed. As the Court explained, to state his claims under California law, McGinity was required to plead facts showing that reasonable consumers were likely to be deceived. Here, the Court concluded, the labels’ use of the phrase “Nature Fusion” was ambiguous in the context of its packaging—indeed, a consumer survey proffered by McGinity showed a “nearly 50/50 split” in “whether the phrase means that the products are-all natural and lack synthetic ingredients.” In these circumstances, the Court continued, a court “must consider what additional information other than the front label was available to consumers.” The Court rejected McGinity’s argument that Ninth Circuit precedent precluded considering whether the back ingredient list clarified the front label, holding that the back label could be disregarded only when the front label is “unambiguously deceptive.” And here, the back label would clarify to reasonable consumers that the natural ingredient in the products was avocado oil, while other ingredients were synthetic. That was true notwithstanding McGinity’s consumer survey, which was unhelpful in large part because the survey participants were not shown the products’ back labels.

Judge Gould, joined by Judge Berzon, also wrote a separate concurrence. Judge Gould opined that the labels at issue “‘resemble[] a concerning practice known as ‘greenwashing,’” in which an entity “misrepresents or exaggerates the positive environmental impact or attributes of a product.” Judge Gould observed that while the phrase ‘Nature Fusion’ may be more ambiguous and less deceptive than ‘green’ or ‘ecofriendly,’” it could still “sound[] alarm bells.”