Sexual Harassment, Schools and Employers – An Update on the Law

By Julie A Moore, Esquire
Reprinted with permission of the New Hampshire Business Review, Vol. 21, No. 13, June, 1999

A loud outcry about the United States Supreme Court’s May 24, 1999 decision involving sexual harassment can be heard. In Davis v. Monroe County Board of Education, the nation’s highest court decided that school districts can be held legally responsible when a student sexually harasses another student, and they did nothing to stop it. While the decision has shocked many people, it really should not be surprising. The Supreme Court applied a combination of legal principles that it has applied before to other discrimination and civil rights actions (although involving adults!) and determined that these same principles also should be considered where the incidents involve even elementary school children. Though sharply divided in a 5-4 decision, majority rules and the decision will have a huge impact on public schools – and employers.

In this latest ruling from the Court, we learn that a lawsuit against a school can be successful where the peer sexual harassment (1) is "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit," (2) the school knows about it, and (3) the school then acts with "deliberate indifference" to that harassment. In other words, this means that a school must have actual knowledge about serious sexual harassment and, nevertheless, fails to intervene to be held liable.

The Davis Decision

In the Davis case, the Court considered the following facts. LaShonda Davis was in the fifth grade at the Hubbard Elementary School, a public school in Georgia. Over the course of several months, LaShonda’s classmate "G.F." made vulgar statements and sexually-charged comments and overtures. He physically rubbed his body against her in a sexually-suggestive manner. He also purportedly placed a doorstop in his pants and proceeded to act in a sexually-suggestive manner toward her during a physical education class.

Each time, LaShonda reported the behavior to a teacher. One incident was even witnessed by a teacher. LaShonda’s mother followed up with the school principal, to no avail. The school was fully aware of LaShonda’s complaints about this boy, yet nothing was done. Consider this:

• The school had no policy on sexual harassment in the classroom.
• Neither the administrators nor the school teachers were educated about responding to or correcting peer sexual harassment.
  
• G.F. was never disciplined.
  
• G.F. was never separated from LaShonda.
  
• LaShonda only was able to move her classroom seat (which was right next to G.F.) after complaining for three months.

After Mrs. Davis complained to the county sheriff, the boy was charged as a criminal and he pled guilty to sexual battery.

The Court had to grapple with a host of issues, including whether Title IX (which is supposed to protect students from discrimination or denial of participation in or benefits of educational programs or activities receiving federal financial assistance) allows a student to sue the school for student-on-student harassment, whether a student can recover money damages under such a lawsuit, and what the legal standard would be in determining a school’s legal responsibility.

In its decision, the Court distinguished acts in the schools versus in the workplace, noting "children may regularly interact in a manner that would be unacceptable among adults. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender." The courts will only properly intervene when the harassment is so severe, pervasive and offensive that it denies students equal access to education.

The Court stressed that schools (unlike employers) are not required to "remedy" peer harassment. On the contrary, schools must merely "respond" to known peer harassment. The courts are to ensure that a school’s response "is not clearly unreasonable."

The "Deliberate Indifference" Standard

The Supreme Court explained the meaning of the term "deliberate indifference." A school cannot be liable for "indifference" where it lacks the authority to take remedial action. At a minimum, the deliberate indifference must cause students to undergo harassment or make them vulnerable to it. The harassment must take place in a context that is subject to the school’s control, like in the classroom and during school hours.

The Court offered the following example of student-on-student sexual harassment that would be capable of triggering a damages claim. It involves the "overt, physical deprivation of access to school resources." In the hypothetical case, male students physically threaten their female peers daily, successfully preventing the girls from using a particular school resource such as an athletic field or computer lab. The girls have asked school administrators for help, yet they are deliberately ignored. The school’s knowing refusal to intervene in these circumstances might be considered deliberate indifference.

The Court previously announced this liability standard in its other decision involving schools and sexual harassment, which was issued a year ago. There, the Supreme Court dealt specifically with the issue of teacher-student sexual harassment. In Gebser v. Lago Vista Independent School District, the Supreme Court concluded that schools who receive federal education funds might be liable under Title IX where they are "deliberately indifferent" to known acts of sexual harassment by a teacher. In that case, a Texas teacher had entered into a secret, sexual relationship with an eight-grade student. The Court ruled that sexual harassment is "discrimination" in the school context under Title IX.

A Look at the Significant Changes in Law

While we now have received five decisions involving sexual harassment in the past fifteen months, the United States Supreme Court in its over two hundred year history previously issued only two substantive decisions on this topic. Let’s review the chronology of the significant events from the legislature, leading federal enforcement agency on discrimination, and the Supreme Court in framing the development of sexual harassment law:

1964. Congress passed the Civil Rights Act of 1964 (known as Title VII), prohibiting employment discrimination in the workplace on the basis of sex and other protected categories.

1980. The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, issued guidelines that say that sexual harassment is a form of illegal sex discrimination.

1986. The United States Supreme Court (in Meritor Savings Bank v. Vinson), addressed sexual harassment for the first time, deciding that a woman who had repeatedly engaged in sexual relations with her boss could sue her employer for sexual harassment. The woman claimed that she gave in to her boss out of fear that she would lose her job. The Court considered whether the boss’ conduct under the circumstances was "unwelcome." The Court announced the legal standard for sexual harassment: employers are responsible for supervisors’ sexual harassment if they know or should know about it and do nothing to correct it. (This standard has since changed to supervisors being automatically liable).

1990. The EEOC issued a policy statement saying that sexual favoritism can be sexual harassment. The favoritism must be more than isolated instances, but must be so widespread that it becomes a condition of employment.

1991. Title VII is amended, allowing for jury trials and the allowance of punitive and compensatory damages for sexual harassment victims. Ironically, also this year, Clarence Thomas, once chairman of the EEOC, was nominated to the Supreme Court, after enduring hearings before the Senate Judiciary Committee on the issue of whether he may have sexually harassed a subordinate, Anita Hill.

1993. The Supreme Court (in Harris v. Forklift Systems) issued its second decision on sexual harassment, holding that an employee can recover for a discriminatorily abusive work environment even if the victim’s psychological well-being is not adversely affected. The Court clarified the standard of when employers would be held liable: when an employee subjectively perceives a sexual or gender-based hostile work environment and the offensive conduct was severe or pervasive to create an objectively hostile work environment.

1998. The Supreme Court (in Oncale v. Sundowner Offshore Services) decide that so-called same-sex harassment is illegal. Men can sexually harass men or women, and women can sexually harass men or women. The sexual orientation of the harasser and the victim is irrelevant. The Court cautioned that Title VII was not a "general civility code for the American workplace." Moreover, the Court urged other courts to consider the harassment’s "social context" and instructed that "common sense" should prevail.

1998. In a pair of decisions last June (Burlington Industries v. Ellerth and Faragher v. City of Boca Raton), the Supreme Court announced that employers can be held legally responsible for sexual harassment committed by supervisors even if they didn't know about it. Also last June, the Court decided the Gebser case establishing the liability standard for sexual harassment between a teacher and student, holding a school district liable if it has actual notice and is deliberately indifferent to the teacher’s misconduct.

Along the way, other issues that have sparked national attention may have contributed to the development of sexual harassment law. Consider, for example, the Navy Tailhook scandal where women attending a Las Vegas convention of navy personnel were forced to run through a gauntlet of men and be subjected to unwelcome touching. While sometimes we may believe otherwise, the courts and Congress are not immune from what is happening in the boardrooms and on the assembly lines.

The Law Today

The present law relating to sexual harassment in the workplace can be summarized as follows:

• When an employee sexually harasses another employee, the employer is liable if it knew or should have known of the harassment and, nevertheless, failed to take appropriate corrective action.
• When a supervisor sexually harasses another employee, the employer is automatically responsible. If no tangible employment action occurred to the victim, i.e. she was not fired or lost a promotion, then the employer can try to show that it took appropriate measures to prevent and to promptly correct the sexual harassment once it learned about it. Also, if the employer has one, it can raise the issue of its internal complaint procedure if the complaining employee failed to follow its process of handling complaints.

What employers should have learned as a result of the Faragher and Ellerth decisions is that the following tools are an essential part of their personnel practices:

• Sexual harassment policy
• An internal complaint procedure that is reasonable
• Formal communication or training of their workers about their policy and the procedure to follow in reporting sexual harassment
• A procedure to handle internal investigations when sexual harassment complaints arise
• The commitment to discipline any offenders and to otherwise to take remedial action when they discover sexual harassment in the workplace.

Schools should certainly implement the same measures. Teachers and other school administrators, like managers and supervisors in the workplace, need to know how to spot inappropriate conduct among children that crosses the line and may be considered unlawful harassment. The teachers too must refrain from sexually-charged conduct in interfacing with their colleagues and with their students.

No question, the Court’s latest decision is going to cost the school districts across the country – and, consequently, us taxpayers – a bundle of money. As with employers, the choice is simple. Pay now, or pay more later. Prevention in the form of sensitivity training and education is much more cost-effective than defending a lawsuit. Hopefully, a prevention program can spare an intended victim from the debilitating effects that sexual harassment can have.

Too often, employers believe that they are immune to the phenomenal verdicts that are being reported across the country. As a consequence, they have failed to invest in a prevention program and strategy to try to ensure a harassment-free environment. With this latest decision from the Court, we should all realize that the court system has little tolerance for the violation of others’ rights. Though the legal standards differ depending on whether the entity being sued is an employer or a school, a common principle stands out -- sexual harassment is unacceptable. Stop it from happening or, at least, do something to stop it once you actually know about it. You don’t want to be the next headline.

Julie A. Moore, Esquire of Employment Practices Group in North Andover, Massachusetts, specializes in risk-management, workplace training and internal investigations on sexual harassment and other employment issues. She is admitted to practice law in Massachusetts and New Hampshire. She can be reached at jmoore@employmentpg.com or 978-975-0080.