RECENT DEVELOPMENTS IN SEXUAL HARASSMENT LAW*
March 19 - 21, 2003
Elsa Kircher Cole
National Collegiate Athletic Association
Indianapolis, IN
Thomas P. Hustoles
Miller, Canfield, Paddock And Stone, P.L.C.
Kalamazoo, MI
I.
EVOLUTION OF SEXUAL HARASSMENT LAW
The statutory underpinnings of the evolution of sexual harassment regulations and case law include Title
VII of the Civil Rights Act of 1964, as amended, and Title IX of the Education Amendments of 1972.
Title VII addresses protection against discrimination on various grounds, including sex, in the
workplace. The statute provides in pertinent part that employers shall not “. . . discriminate against any
individual with respect to his [sic] compensation, terms, conditions, or privileges of employment on the
basis of such individual’s . . . sex . . ..” 42 U.S.C. Section 2000e(2)(a)(1). Title IX centers upon the
prohibition of sex discrimination by educational institutions that receive federal financial assistance.
Title IX states that no person “shall, on the basis of sex, be excluded from or participation in, be denied
the benefits of or be subject to discrimination under any education program or activity receiving Federal
financial assistance.” 42 U.S.C, Section 1681 (a).
Building upon case law developments in the late 1970s, the Equal Employment Opportunity
Commission, the federal agency which enforces Title VII, issued the 1980 “Guidelines on
Discrimination Because of Sex.” These guidelines included the seminal and most-often quoted and
utilized definition of sexual harassment:
“[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature ... when (1) submission to such conduct is made either
explicitly or implicitly a term or condition of an individual’s employment, (2) submission
to or rejection of such conduct by an individual is used as the basis for employment
decisions affecting such individual or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.”
Case law interpreting and applying this definition to real world disputes varied all over the map. The
Supreme Court’s early decisions which began to resolve this uncertainty included Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). In
Meritor, the Court affirmed that a claim of hostile environment sexual harassment is a form of sex
discrimination, and ruled that whether the alleged misconduct was unwelcome was more determinative
than whether the victim participated voluntarily. In Harris, the Court articulated with more specificity
the circumstances where misconduct is so severe and pervasive that a hostile or abusive working
The presenters would like to acknowledge the contributions of Mr. Hustoles’ partner, Donna Donati (Detroit
office) and Mr. Hustoles’ associates Jennifer L. Sabourin (Detroit) and Kalyn D. Redlowsk (Kalamazoo) to these
materials.
*
National Association of College and University Attorneys
1
environment will exist. These include an examination of all the circumstances including: the conduct’s
frequency, its severity, whether it is physically threatening, and whether it unreasonably interferes with
an employee’s work performance.
Another leading early Supreme Court case was Franklin v. Gwinnett County Public Schools, 503 U.S.
60, where the Court settled the disputed question of whether a Title IX individual plaintiff could sue for
money damages by holding that she/he could. The decision left open the critical question of the
circumstances under which such liability would be imposed.
This basic statutory, regulatory, and case law evolution set the stage for more recent developments that
will be the focus of this paper. Relatively recent case law and regulatory developments, selected state
case law developments, the expansion of same-sex harassment theories, and the newest trend relating to
gender identity and transgender status will be summarily explored in turn.
II.
RECENT FEDERAL CASE LAW DEVELOPMENTS -- HETEROSEXUAL SEXUAL
HARASSMENT
A.
THE UNITED STATES SUPREME COURT
In 1998, the U.S. Supreme Court issued two landmark decisions which helped define the scope
of employer/institutional liability regarding managerial or supervisory conduct for
“heterosexual” sexual harassment, i.e., male harasser to female victim (the most frequent) or
female harasser to male victim (which appears to be occurring with greater frequency). In 2001,
the Court affirmed the standard by which a sex discrimination hostile work environment claim
must be measured.
1.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 724 (1998)
The United States Supreme Court resolved the issue of employer liability for a
manager’s or supervisor’s sexual harassment of one of its employees in a pair of
decisions issued on June 26, 1998: Burlington Industries, Inc. v. Ellerth, 524
U.S. 724 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
In Ellerth, the plaintiff claimed Slowik, a mid-level manager who had
supervisory authority over her, subjected her to repeated “boorish and offensive
remarks and gestures,” and made specific threats regarding her job security with
the company. She focused her claims on three incidents: first, while on a business
trip, Slowik invited her to the hotel’s lounge, made comments about her breasts,
and when she gave no encouragement, told her to “loosen up” and warned that he
could make her life “very hard or very easy at Burlington;” second, during
Ellerth’s interview for a promotion (which she received), Slowik expressed
reservations about her because she was not “loose enough” then reached over and
rubbed her knee, and when he announced the promotion he told her she would be
with men who work in factories who “certainly like women with pretty
butts/legs;” and third, when Ellerth called Slowik to discuss a business issue, he
told her he did not have time for her unless she told him what she was wearing,
and when she followed up a day or two later, he denied her request, and asked her
if she was wearing shorter skirts yet, “because it would make [her] job a whole
heck of a lot easier.” Although she knew that Burlington had a policy against
sexual harassment, Ellerth did not inform anyone in authority about the manager’s
misconduct. She chose to resign when her immediate supervisor criticized her
shortly after her last encounter with Slowik.
National Association of College and University Attorneys
2
In Faragher, a female lifeguard alleged that her male supervisor(s) had created a
sexually hostile environment by repeatedly subjecting female employees to
offensive and uninvited touching, telling the female lifeguards he would like to
engage in sex with them, and making crude and demeaning remarks about women
in general. In addition, she alleged that a supervisor pantomimed an act of oral
sex, tackled her and remarked that but for a physical attribute he found
unattractive, and he would readily have had sex with her. Faragher did not
complain to higher management about the lifeguards’ conduct.
In its decisions, the Court made clear that employers can be liable for sexual
harassment by a supervisor even in situations where the employer lacks actual
notice of the misconduct, noting that supervisors who engage in sexual
harassment bind their employers under Title VII because they may rely on the
authority conferred to them by the employer in carrying out the harassment. The
Court then adopted the following new standard for determining employer liability
for sexual harassment by supervisors and managers:
[A]n employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment
created by a supervisor with immediate (or successively
higher) authority over the employee. When no tangible
employment action is taken, a defending employer may
raise an affirmative defense to liability or damages, subject
to proof by a preponderance of the evidence. . . The defense
comprises two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct promptly
any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. While proof that an
employer had promulgated an antiharassment policy with
complaint procedure is not necessary in every instance as a
matter of law, the need for a stated policy suitable to the
employment circumstances may appropriately be addressed
in any case when litigating the first element of the defense.
And while proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm
is not limited to showing an unreasonable failure to use any
complaint procedure provided by the employer, a
demonstration of such failure will normally suffice to
satisfy the employer’s burden under the second element of
the defense. No affirmative defense is available, however,
when the supervisor’s harassment culminates in a tangible
employment action, such as discharge, demotion, or
undesirable reassignment.
In sum, when an employee is subject to sexual harassment by a supervisor with
authority over him or her, and the harassment results in a tangible job detriment to
the employee, the employer is automatically liable for the supervisor’s conduct,
and the affirmative defense is not available. If the supervisor’s conduct does not
National Association of College and University Attorneys
3
result in a tangible job detriment to the employee, however, the employer may be
able to overcome the presumption that it is liable for the supervisor’s conduct by
presenting proof in support of the affirmative defense. In such cases, once an
employee presents sufficient evidence that the harassment occurred, the burden
therefore shifts to the employer to demonstrate why it should not be held liable for
the supervisor’s unlawful conduct.
Applying this new standard to the facts in Ellerth and Faragher, the Supreme
Court reached the following conclusions:
Ellerth: While accepting the district court’s finding that Ellerth had alleged
conduct that was sufficiently severe and pervasive to constitute a hostile work
environment claim, the Supreme Court held that Ellerth had not alleged a tangible
employment action that would prevent Burlington from asserting the affirmative
defense. As a result, the Court determined that Burlington would be permitted to
assert and attempt to prove the affirmative defense on remand to the district court.
Faragher: In contrast, although Faragher similarly did not suffer tangible
employment action, and therefore the City of Boca Raton therefore would
otherwise have had the opportunity to raise the affirmative defense, the Supreme
Court did not remand the case for further consideration. Because the City had
“entirely failed” to disseminate its policy against sexual harassment among the
beach employees, had made no attempt to keep track of the conduct of its
lifeguard supervisors, and its policy did not include any assurance that the
harassing supervisors could be bypassed in registering complaints, the Court held
“as a matter of law that the City could not be found to have exercised reasonable
care to prevent the supervisors’ harassing conduct.”
Despite some media reports to the contrary following the Supreme Court’s 1998
decisions in this area, the distinction between quid pro quo and hostile
environment harassment is still relevant for purposes of addressing the initial
question of whether the alleged victim can prove discrimination in violation of the
applicable antidiscrimination law. As the Supreme Court noted in Ellerth,
To the extent they illustrate the distinction between cases
involving a threat which is carried out and offensive
conduct in general, the terms are relevant when there is a
threshold question of whether a plaintiff can prove
discrimination in violation of Title VII. When a plaintiff
proves that a tangible employment action resulted from a
refusal to submit to a supervisor’s sexual demands, he or
she establishes that the employment decision itself
constitutes a change in the terms and conditions of
employment that is actionable under Title VII. For any
sexual harassment preceding the employment decision to
be actionable, however, the conduct must be severe or
pervasive.
2.
Gebser v. Lago Vista Independent School District, 524 U.S. 174 (1998)
The Supreme Court held, in a reasonably “bright line” test fashion, that a school
district may not be held liable for damages under Title IX for the sexual
National Association of College and University Attorneys
4
harassment of a student by a teacher unless an official of the school district with
the requisite authority to correct the situation has actual notice of the alleged
harassment and is “deliberately indifferent” to the alleged misconduct.
The Court thus fashioned a three element test for determining liability:
3.
(1)
An official has “actual knowledge” of the alleged harassment;
(2)
The official must have the authority to institute corrective
measures to resolve the problem; and
(3)
The official must have failed to adequately respond to the alleged
harassment, to the point of “deliberate indifference.”
Clark County School District v. Breeden, 532 U.S. 268 (2001)
As recently as 2001, the United Stated Supreme Court affirmed the standard by
which a sex discrimination hostile work environment claim must be measured:
Workplace conduct is not measured in isolation, instead,
‘whether an environment is sufficiently hostile or abusive’
must be judged ‘by looking at all the circumstances,
including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably
interferes with an employee’s work performance.’ Hence,
a recurring point in [our] opinions is that simple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the
terms and conditions of employment.
The plaintiff in Clark County alleged sex harassment hostile work environment
after being subjected to what she deemed sexually offensive comments. During a
meeting, plaintiff’s male supervisor met with plaintiff and another male employee
to review the psychological evaluation reports of four job applicants. The report
for one of the applicants disclosed that the applicant had once commented to a coworker, “I hear making love to you is like making love to the Grand Canyon.” At
the meeting, plaintiff’s supervisor read the comment aloud, looked at plaintiff and
stated, “I don’t know what that means.” The other employee then said, “Well, I’ll
tell you later,” and both men chuckled.
The U.S. Supreme Court reasoned that the ordinary terms and conditions of
plaintiff’s job required her to review the sexually explicit statement in the course
of screening job applicants. Her co-workers who participated in the hiring
process were subject to the same requirement, and plaintiff admitted during the
lower court proceedings that it did not bother or upset her to read the statement in
her file. Thus, the court concluded that the statements and the chuckling of the
supervisor and co-worker were at worst an ‘isolated incident that cannot remotely
be considered ‘extremely serious,’ as required. However, the ruling in Clark
County should not give employers a false sense of security. All comments of a
sexual and/or derogatory manner (even if the sexual comment seems trivial and
the employee’s reaction seems overblown) should be addressed by employers
immediately upon notice. If necessary, an additional copy of the employer’s
National Association of College and University Attorneys
5
sexual harassment policy should be distributed to the workforce with a signed
acknowledgement indicating the policy was read and reviewed.
Some questions to consider when evaluating whether particular conduct might
constitute sexual harassment include:
*
How would you objectively describe the behavior?
Eliminate any qualifying comments and/or assumptions such as “he was kidding”
or “she didn’t mean it that way.” Just state the facts: who was present, what was
said or done, where did the incident occur, etc.
*
Was the behavior welcome?
To make this assessment, ask:
1.
Was the other person initiating and participating equally?
Again, just analyze the facts, and refrain from making any assumptions. Actually
count the number of times each person initiates and participates in the behavior.
2.
What did the body language of each person indicate?
Did anyone appear to be uncomfortable? Was anyone moving away or towards
anyone else? If so, how did the other participants respond?
*
Was the behavior sexual in nature?
To make this assessment, consider:
1.
Was there an explicit or implicit sexual tone or connotation?
2.
Would the alleged harasser have acted in the same manner if he or she was
not interested sexually in the other person?
*
Does the person initiating the behavior have some kind of “leverage” or
power over the other person?
If so, the other person may have felt compelled to participate and/or limited in his
or her ability to indicate the behavior is unwelcome.
While none of these factors is dispositive, consideration of the factors will help
determine whether the conduct could be viewed as unlawful sexual harassment.
If the conduct was clearly unwelcome and was sexual in nature, it is more likely
to be held to be unlawful sexual harassment than conduct that is not sexual in
nature and/or where welcomeness is ambiguous. It must be emphasized,
however, that there are no bright line rules here. These matters are evaluated on a
case-by-case basis, based upon the totality of the particular circumstances.
B.
SELECTED OTHER RECENT FEDERAL CASES
1.
Waters v. Metropolitan State University, 52 Fed.Appx. 1, 2002 WL 31398957
(8th Cir. (Minn.)) (unpublished opinion)
The plaintiff, who was an adult student at the University, alleged that her
philosophy professor violated her equal protection right to an education free of
sexual harassment. After completing a course taught by the professor, the
plaintiff enrolled in an independent study course with him, but was unable to
complete it due to a personal tragedy. The plaintiff remained in contact with the
National Association of College and University Attorneys
6
professor over the next few months, and received an extension on her
assignments. During the next semester, plaintiff called her professor to thank him
for his friendship and support over the past few months, and a month later, the
professor called plaintiff to tell her that he “wanted to pursue this friendship
more” and invited her over to his apartment. Plaintiff went to his apartment and
continued to do so upon his request four or five other times over the next week.
By the next month, the two had entered into what was termed by plaintiff a
“consensual sexual relationship” which lasted until early the next year. The
plaintiff made a formal sexual harassment complaint to the University two months
later, and filed a district court claim alleging that the professor harassed her by
pressuring her to have sex with him and to withdraw from the University.
Plaintiff did not appeal the district court’s summary dismissal of her Title IX
claim against the University, but argued that the court erred in analyzing her claim
against the professor as a Title IX suit as opposed to a § 1983 claim in his
individual capacity.
The United States Court of Appeals for the 8th Circuit agreed with the district
court in its finding that when the professor approached the plaintiff about
pursuing a sexual relationship and allegedly dropping out of school, the professor
was not acting under color of state law. The court reasoned that he did not
approach her in his official capacity as a teacher or an advisor since she was no
longer taking a class with him, had not named him as her official advisor, and had
not been actively pursuing her University studies at all at the time of the
professor’s romantic overtures. Moreover, the court noted that even if the
professor had been acting “under color of state law,” the plaintiff failed to
requisitely demonstrate that the professor’s actions constituted sexual harassment
since the facts of the case did not show that his advances were “unwelcome” or
that the plaintiff “merely acquiesced” to his advances. Thus, the appeals court
held that the professor’s behavior did not constitute sexual harassment for
purposes of the 14th Amendment, and affirmed the district court’s grant of
summary judgment.
2.
King v. Board of Control of Eastern Michigan University, 221 F.Supp.2d 783
(2002)
Six female plaintiffs sued the University, claiming that they were discriminated
against in a study abroad program that received federal assistance when fellow
male students sexually harassed them, and supervisors were indifferent to their
complaints. Sixteen college students participated in the University’s five-week
study abroad program in South Africa which was administered by University
professors, one of whom accompanied the students on the trip. During the first
week of the trip, two of the male students along with the accompanying
professor’s assistant, allegedly began to refer to the female students as “sweetie,”
“darling,” and “sweetheart.” When two of the women asked to be called by their
names, the males allegedly began to refer to them by gender-specific slurs, such
as “bitches,” “sluts,” “whores,” and “bimbos.” The women also reported that the
male students often solicited South African women for sex from the tour bus and
offered to “sell” the female students to South African men. At a student meeting
chaired by the professor’s assistant, the females expressed objections to the slurs
and derogatory behavior, were allegedly told that the men would do as they
National Association of College and University Attorneys
7
pleased, and were instructed by the assistant to “stop bitching.” The six plaintiffs
and another female student withdrew from the program and returned to the States
one week before the program was scheduled to end, due to the continuous
harassment.
Before classes began in South Africa, the women claimed that they asked the
accompanying professor to schedule a group meeting to discuss the men’s
inappropriate conduct. The professor agreed, but did not attend, instead sending
his assistant who informed the students that any complaints should go through
him to the professor. A heated discussion concerning the men’s behavior ensued
at the meeting, and the assistant allegedly told the women to “stop bitching.” The
assistant reported back to the professor that “nothing of substance was discussed
at the meeting.” Plaintiffs also allege that when they approached the professor
about the meeting, he informed her that he was not the person with whom she
should speak. Further, they alleged that the professor was present at times when
the plaintiffs were referred to in a derogatory manner and when the male students
propositioned the South African women for sex, and did nothing. Two plaintiffs
called the professor who was in the States and complained about the harassment
as well as the accompanying professor’s apathy. The accompanying professor
had a meeting that night with the students, but he in no way addressed the
complaints about the men’s behavior, and instead told the group that it was his
program and that anyone trying to stop it would “feel his wrath until victory was
won.” The next day, the seven females left the program.
Plaintiffs filed suit against the University, alleging sexual harassment and
deliberate indifference in violation of Title IX. The University filed a motion to
dismiss, alleging that Title IX does not apply to individuals living outside of the
United States. In its holding, the court reviewed the broad language of Title IX,
which defines “program or activity” as “all of the operations of . . . a college,
university, or other postsecondary institution, or a public system of higher
education.” As such, the court found that Title IX is not limited by any
exemption for study abroad programs, and “sweeps within its scope every single
university education program. . . .” The court also looked to the legislative
history of Title IX and found that its drafters “did not intend for there to be any
exceptions in the area of services to students, meaning no exceptions for
particular programs or activities, except as specified in the statute itself.”
Moreover, the court found, the regulations issued to enforce the statute “do not
require a student to be physically located in the United States to receive Title IX
protections.” Accordingly, the district court denied the University’s motion to
dismiss the women’s claims.
3.
Herberg v. California Institute of the Arts, Cal.App. 2Dist., No. B148834,
Aug. 13, 2002
The plaintiff was an 82-year-old administrative employee at the Institute and sued
her employer for sexual harassment under California’s Fair Employment and
Housing Act. At the Institute’s end-of-the-year show, students in an art class
were permitted to display their original work at the Institute’s main gallery.
Because of its censorship policy of not censoring any work on the basis of
content, the students did not need to obtain faculty approval before exhibiting
their work. On a day of the show, two students exhibited their piece which
National Association of College and University Attorneys
8
depicted plaintiff and other faculty members engaged in various sexual acts.
Plaintiff heard about the artwork and became so upset that she left work
immediately and never returned. The next day, one of the drawing’s creators
voluntarily removed the work from the gallery. The Institute’s exhibit review
committee met thereafter to address a complaint made by plaintiff’s daughter.
The committee found that the Institute did act in accordance with its educational
policy and censorship goals.
The Institute moved for summary judgment, and the district court granted its
motion. The California Court of Appeals affirmed, finding that even though the
artwork was upsetting to the plaintiff, its 24 hour display in the main gallery was
not severe or pervasive sexual harassment. It also found that it did not begin to
approach the severity of rape, violent sexual assault, or even milder forms of
unwelcome physical contact necessary for a single incident of severe harassment
to be sufficient to establish employer liability for sexual harassment.
Consequently, the court concluded that no reasonable jury could conclude that the
artwork’s 24 hour presence in the gallery constituted severe harassment and
granted the Institute’s motion.
4.
Singleton v. Chicago Sch. Reform Bd. of Tr. of the City of Chicago, 2002 WL
2017082 (N.D. Ill.)
Plaintiff, a former tenure-track teacher in the Chicago school system, sued
defendant alleging violations of Title VII, Title XI, and § 1983 claiming that the
school board had remained deliberately indifferent to the repeated sexual
harassment she endured by the school principal, and that he subsequently
terminated her for formally filing a complaint of harassment. Plaintiff asserted
that the school principal approached her in the school parking lot and invited her
for dinner and drinks, and that when she declined, the principal stated that she was
“probably tired of teaching and would much rather be laid out in Playboy
magazine as a centerfold.” She also asserted that the principle treated her
differently from other school employees and restricted her job responsibilities,
and that he stalked her in school hallways, often visited her classroom, and stared
at her when she changed her hairstyle or wore new clothing. Plaintiff alleged that
on another occasion, the principal called her into his office and told her that he
had been “watching her,” and that after she left for the day, he would often go
through her things. Plaintiff asked whether he was watching her as part of an
evaluation process, to which the principal allegedly replied, “[w]hy, should I? So
you can improve your performance?” Because of this comment, plaintiff claimed
that in order to distance herself from the principal, she left the school and did not
return to her teaching duties again.
Soon thereafter, plaintiff filed a complaint against the principal and requested a
transfer to a different school, and also sent an application for a leave of absence,
citing job-related stress, to the principal. Plaintiff claimed that an education
officer spoke with the principal, but did not conduct any further investigation, and
that she was never informed of the status of her application for a leave of absence.
Later, plaintiff reported her complaint to the school board’s Title IX officer, who
investigated the matter and released a final report concluding that plaintiff’s
complaints were “unsubstantiated.” In the meantime, plaintiff began to work
outside of the Chicago school system.
National Association of College and University Attorneys
9
The following year, the school board and plaintiff were engaged in an arbitration
hearing in regards to her complaint. At the hearing, plaintiff became aware that
the principal had resigned from his position. When plaintiff approached the
school board about her returning to her teaching position, she was informed that
she would not be allowed to do so, even though she never officially “lost” it. The
school board also indicated that it had granted her leave of absence, and that it had
expired. Plaintiff asserted that she was never informed that her request for such
leave had even been granted. The board officially terminated plaintiff’s
employment approximately five months later, asserting that plaintiff, in violation
of school policy, engaged in secondary employment while on a board-approved
leave of absence.
Plaintiff subsequently filed suit, arguing that her termination was a “mere pretext
to hide unlawful retaliation.” The school board and its members motioned for
summary judgment. The U.S. District Court for Northern Illinois, Eastern
Division granted the motion. In regards to her Title VII claim, the court found
that plaintiff’s claim was untimely, since she filed it almost two years after the
alleged unlawful conduct occurred, which was clearly not within Illinois’ 300 day
requirement. In considering plaintiff’s retaliation claim, the court noted that
plaintiff’s protected conduct (her sexual harassment complaint) occurred more
than one year before her employment was terminated by the board, and that in
plaintiff’s application for leave of absence, it was clearly stated that plaintiff may
not accept employment elsewhere, or there would be grounds for dismissal.
Consequently, the court held that the board’s decision to terminate plaintiff was a
disciplinary action that resulted from a policy violation; thus, plaintiff failed to
demonstrate a causal connection between her sexual harassment complaint and
the board’s alleged retaliation toward her. Finally, the court held that because the
principal resigned from his position prior to the date on which plaintiff claimed
that the board failed to take corrective action, it was “factually impossible” for the
board to take action against the principal. “In any event,” the court explained,
“the appropriate personnel investigated plaintiff’s allegations in a diligent
manner,” and “[a]lthough plaintiff may be dissatisfied with the results of the Title
IX officer’s investigation and the decision of the arbitrator, the record reveals
plaintiff’s allegations were thoroughly investigated.” Accordingly, the court
granted the school board’s motion for summary judgment on the Title IX claim.
5.
K.P. v. Corsey, 228 F.Supp.2d 547 (2002)
Plaintiff was a high school student, and member of the school’s track and field
team, who sued her school district and track coach under Title IX and § 1983.
Plaintiff alleged that she had been sexually harassed by her track coach and that
the school district had prior actual notice of her coach’s illegal behavior, and was
therefore liable for his sexual harassment. Plaintiff asserted that while she was in
her coach’s car, which was parked behind school bleachers, her coach told her
that he needed to conduct a “fat test” which required her to remove her pants and
underwear and to pull up her shirt and bra while the coach made comments about
the type of her body and specific areas of her body. Plaintiff further alleged that
her coach made physical contact with a private area of her body, and drove her
home in his car after the incident. At first, the plaintiff only told her boyfriend
and a friend about the incident, but told her mother about it nearly one year later.
National Association of College and University Attorneys
10
The next morning, plaintiff and her mother met with the school’s vice principal
and director of athletics, who summoned the principal and assistant school district
superintendent. The state Division of Youth and Family services was contacted,
and an investigation subsequently conducted. After the coach pleaded guilty to
third-degree aggravated sexual contact at his criminal trial, he was suspended and
later terminated.
The U.S. District Court for New Jersey found that the school district had no prior
notice of the track coach’s “undesirable proclivities,” since “no person working
for the school district had any previous warning of [the coach’s] behavior, nor had
there been any previous complaints against him.” In regards to the deliberate
indifference charge, the court noted that the “school district had a very specific
policy prohibiting sexual harassment and discussed the subject during teacher
training sessions.” Moreover, the court noted, the response of the school district
to plaintiff’s complaint was “swift and decisive.” According to the court, the
school board’s actions constituted the “opposite of deliberate indifference,” and
accordingly granted summary judgment to the school district on plaintiff’s Title
IX claim.
Regarding plaintiff’s 1983 claim, the court found that plaintiff
properly made a claim against the coach under this law, however, whether the
school district may be liable under it is a “different matter.” The court found that
there was obviously no custom or policy that led to the sexual harassment of the
plaintiff, and instead found that the district had both procedures allowing it to
quickly report the harassment to the proper authorities and a policy to prevent
harassment of its students. Further, the court noted that the track coach was not
an employee who had policy-making authority since he was not a school
administration member. The court, therefore, held that the school district could
not be liable under 1983 and granted its motion for summary judgment.
6.
Kidd v. Commonwealth of Pa., 37 Fed.Appx. 588, 2002 WL 1343624 (3rd Cir.
(Pa.)) (unpublished opinion)
Plaintiff, a liquor enforcement officer at the Pennsylvania State Police Bureau of
Liquor Enforcement, sued her employer under Title VII and § 1983, alleging that
her supervisor, on one occasion, called her a “bitch” during an argument, and that
a co-worker pointed a loaded gun at her. However, after a police investigation
was conducted, the latter claim was found to be uncorroborated.
In its unpublished opinion, the 3rd Circuit found that the “[d]erogatory comments
and unsubstantiated oral reprimands without more are not enough [to establish a
claim of sexual harassment]. . . . [T]he adverse employment decision must rise to
the level of alter[ing] the employee’s compensation, terms, conditions, or
privileges of employment, deprive him or her of employment opportunities, or
adversely affect his or her status as an employee.” Moreover, the court concluded
that using the epithet “bitch” on one occasion was not sexual harassment under
the circumstances.
7.
Doe v. Benicia Unified School District, 206 F.Supp.2d 1048 (2002)
Plaintiff was a former student at defendant’s elementary school and was sexually
abused on school grounds by the school’s custodian. She sued the school district,
alleging that the school officials, based on their supervisory authority over the
custodian violated her right to be free from invasion of her liberty interest in her
National Association of College and University Attorneys
11
bodily integrity under the 14th Amendment of the U.S. Constitution. After a
couple of school-sponsored functions, plaintiff and her friend assisted the
custodian with putting chairs away when the functions ended. A month later,
plaintiff and her friend assisted the custodian in cleaning classrooms after school.
The school principal noticed this, told the students to leave, and later admonished
the custodian for allowing the children to assist him with his work. A month or so
later, the custodian called plaintiff’s home on at least two occasions. Plaintiff’s
father answered and informed the school principal, who reported the situation to
the maintenance director of the school system. The custodian was strongly
reprimanded, and was closely monitored during the remainder of the school year.
That summer, plaintiff was walking alone, on her way to a friend’s house, through
the elementary school grounds. While walking, she came into contact with the
custodian who took her into a school bathroom and molested her. Two months
later, the custodian was found guilty of assault, and sentenced in state prison for
three years.
The district court found that plaintiff failed to establish the first element necessary
for a court to find liability on the part of school officials by failing to show a
pattern of inappropriate sexual behavior that pointed plainly toward the
custodian’s sexual abuse. The court found that putting chairs away is not sexual
behavior, nor did it point to sexual abuse. Further, the court noted that even
though it did not need to address the issue of deliberate indifference since there
was no genuine issue of material fact in regards to the school official’s knowledge
of inappropriate sexual behavior, it closed its opinion by stating that the
custodian’s reprimand following the phone call incident was not a deliberately
indifferent response to the inappropriate nonsexual behavior, and emphasized that
mistaken or ineffective responses do not constitute deliberate indifference.
8.
Johnson v. Independent School District No. 47, D. Minn., No. 00-CV-2073
JMR/RLE, April 2, 2002
Plaintiff brought suit on behalf of her daughter, a special needs student of the
school district, under Title IX. Plaintiff claimed that school officials acted with
deliberate indifference to the teasing her daughter suffered after a caption in her
school yearbook suggested that she used her musical instrument in a sexual
manner. The plaintiff’s daughter played the flute in the school band during her
junior year of high school, and one day in September was approached by three
yearbook staff members in the band room. The staff members took her picture,
and while they were leaving, yelled out quotes from the movie “American Pie,”
including “one time at band camp.” The quote refers to a character in the movie
who often tells stories of times at band camp, particularly wherein she used her
flute for self-pleasure. Plaintiff’s daughter did not comprehend the reference until
her sister explained it to her.
The daughter alleged that soon thereafter, she was subjected to continuous verbal
harassment by two students who, in the school’s hallways and out of teachers’
sight, made comments such as “did you have fun with your flute last night?” and
“does it turn you on?” Plaintiff’s daughter reported the harassment to the school’s
case manager, but did not explain the “one time at band camp” inference. The
case manager told her that she’d take care of it. The teasing subsided some time
National Association of College and University Attorneys
12
during the school year, and near the school year’s end, the daughter discovered
that the “band camp” phrase was going to be placed next to her picture in the
yearbook. When she approached the school yearbook advisor about the situation,
the yearbook had already been printed and bound. The yearbook advisor learned
of the quote’s inference from a student teacher, and discussed the matter with the
yearbook advisor from the previous year. She suggested that “stickers” be placed
over the caption in all yearbooks, which, if removed, would leave an opaque
residue than would make the quote illegible. Although all yearbooks were given
such stickers, plaintiff’s daughter claimed that several students were able to
remove the sticker and expose a legible “band camp” caption.
Plaintiff and her daughter met with the school’s principal and complained that the
stickers had only drawn more attention to the caption, and requested that the
yearbooks be recalled. The principal apologized, asked for the names of the
harassing students, and since the daughter did not know them all, the principal
suggested that they hold a follow-up meeting. He also suggested that plaintiff
look into filing a harassment charge with the school’s Title IX officer. At the
follow-up meeting two days later, ways to remedy the situation were discussed by
the school staff, and the principal again recommended that plaintiff meet with the
Title IX officer.
The U.S. District Court for Minnesota noted initially that the “band camp” quote
was not “facially offensive,” since neither the plaintiff’s daughter nor the staff
understood its meaning initially. The court further noted that even though
plaintiff’s daughter asserted that two students teased her about using her flute in a
sexual manner, no evidence existed which suggested that any physical contact
was made. Accordingly, the court found as a matter of law that the events,
although unfortunate, “[did] not rise to the level of ‘severe, pervasive and
objectively offensive’ conduct which must be present in order to maintain a Title
IX claim.” Further, the court concluded that plaintiff failed to show that the
teasing and harassment her daughter experienced denied her equal access to an
educational program or activity, especially in light of the fact that she was the
student-of-the-month award winner for May, and was also able to complete her
school finals. Regarding plaintiff’s deliberate indifference claims, the court found
that once the school became aware that it was faced with a problem, the staff
attempted to solve it, and even though “in hindsight [the sticker remedy] might
have been insufficient, it was reasonable at the time.” Moreover, the principal
attempted to investigate the situation upon learning of the teasing, and also
explained the process for harassment complaints and offered the school’s Title IX
services to plaintiff. Therefore, the court concluded that the school’s response to
the harassment was not clearly unreasonable in light of the known circumstances,
and granted the school board’s motion for summary judgment.
9.
Hernandez Loring v. Universidad Metropolitana, 186 F.Supp.2d 81 (2002)
The plaintiff was a female associate professor, who, alleging quid pro quo sexual
harassment, sued the University. While plaintiff was working as an associate
professor, she applied for promotion to the rank of professor. After she was
denied the promotion, she questioned the committee’s procedure, and alleged that
the president of the evaluation committee had sexually harassed her. She asserts
that at a faculty luncheon, the committee president accosted her and told her that
National Association of College and University Attorneys
13
she was “so tasty that getting laid with you just once is not enough: at least three
or four times is needed.” She also asserts that on several occasions, he entered the
womens’ restroom, opened his “fly” and invited her to “lay down” with him, and
that after she was denied the promotion, he told her, “this happened to you for
being such a bitch.”
On remand from the 1st U.S. Circuit Court of Appeals, the district court concluded
that plaintiff failed to establish a clear link between the five-member committee’s
denial of her application, and her refusal to submit to its president’s sexual
advances. The court noted that the plaintiff failed to offer details on how the
committee president blocked her promotion, and that there was no evidence, apart
from plaintiff’s own testimony, that the president ever made the “critical
admission.” Moreover, the court found that in light of the sworn affidavits of the
other committee members asserting that they assigned the candidates’ scores
responsibly and voluntarily, it could not conclude that the committee president’s
“personal contempt tainted not only his evaluation, but also the evaluations of an
entire review committee.”
10.
Oden v. Northern Marianas College, 284 F.3d 1058 (2002)
Plaintiff, a music student at the college, filed suit against the college and several
school officials, alleging violations of Title IX on grounds that the college had
been deliberately indifferent to the sexual harassment she endured from her music
instructor. Plaintiff asserted that her music teacher, over a period of two months,
continuously kissed her and grabbed her body in an appropriate manner. Upon
receiving notice of the complaint, the college aided plaintiff in documenting her
claim, provided her with one-on-one counseling sessions, conducted a hearing,
and sanctioned the music instructor with discipline. The 9th Circuit Court of
Appeals found that these actions by the college were “[f]ar from” deliberate
indifference, and that the college “actively engaged in investigating and resolving
[plaintiff’s] allegations.” Further, the plaintiff contended that the college acted
with deliberate indifference because almost a year lapsed between the time she
filed her initial complaint and the date of her hearing. The court noted, however,
that valid reasons existed for the delay, and that the reasons would, at most,
qualify as “bureaucratic sluggishness,” and not deliberate indifference.
Accordingly, the court granted the college’s motion for summary judgment.
11.
Gawley v. Indiana University, 276 F.3d 301 (2001)
Plaintiff was a police officer for the University’s police department who sued the
University under Title VII, claiming that she was constructively discharged after
her supervisor made sexually offensive remarks to her and touched her in an
inappropriate manner. Plaintiff claimed that she had been sexually harassed by a
lieutenant in the police department’s uniform division who was assigned
command responsibilities over subordinates in emergency situations, and had
limited disciplinary authority over lower-ranking officers. Plaintiff asserts that at
least three times a day, the lieutenant would make comments to the effect that her
pants were too tight, that she was overweight, and that she was “getting bigger
than a barge.” He also allegedly commented on her breast size and groped her
breast while fitting her for a bulletproof vest. Plaintiff asserts that she asked him
to stop at least 10 times. Plaintiff lodged a formal complaint against the
National Association of College and University Attorneys
14
lieutenant through internal department procedures, and an investigation took
place. She also complained at the University’s Office of Women’s Affairs as well
as the Office of Affirmative Action (OAA). The lieutenant eventually received a
counseling memorandum regarding his behavior, and his harassment of plaintiff
stopped.
Plaintiff asserted that during the investigation, she suffered additional retaliation
for filing the complaint, in that her case reports began to be subjected to greater
scrutiny than other police reports and that she was told she’d be demoted if she
did not complete additional training requirements which were voluntary to others.
Plaintiff subsequently resigned.
The 7th U.S. Circuit Court of Appeals relied on Ellerth and found that
independent of whether the lieutenant was plaintiff’s supervisor, the University
was still entitled to an affirmative defense since no tangible employment action
occurred due to the alleged harassment. This finding was in light of the fact that
the lieutenant did not fire plaintiff, fail to promote her, or give her significantly
different responsibilities. The court also found that plaintiff failed to produce
evidence showing “that the University failed to take reasonable action in
preventing and correcting the harassing behavior,” and noted that plaintiff herself
conceded that the University had a system in place for employees to report sexual
harassment and that upon using it, the University took action to cease the
harassment. Further, the court found that plaintiff failed to make use of the
University’s formal procedures during seven months of escalating harassment,
and that coupled with “the insufficiency of her repeated informal efforts to stop
the harassment constituted an unreasonable failure to take advantage of the
University’s corrective procedures.” Finally, the court held that plaintiff failed to
state a claim of retaliation since no “materially adverse action” was taken against
her, as well as a claim of constructive discharge since “quitting was not the only
option available to [plaintiff] because of the University’s procedures for victims
of harassment.”
12.
Lutz v. Purdue Univ., 133 F.Supp.2d 1101 (2001)
Plaintiff began working for the University as a visiting associate professor, and
even though he received poor evaluations for his inadequate teaching skills, he
was granted two additional one-year contracts to teach. Plaintiff’s supervisor
heard of the complaints, and the head of plaintiff’s department felt he was a poor
teacher after sitting in on one of his lectures. On one occasion, plaintiff noticed
two new icons on his computer screen entitled “condom” and “nightmare.”
Plaintiff’s description of the images he saw when he clicked on the icons was
vague and inconclusive, but he complained to his supervisor and department head
that he was “very offended” by what he saw in the “fraction of a second” he
looked at the pictures.
Shortly thereafter, plaintiff’s supervisor informed him that the University had
decided not to offer him a third one-year contract. At the end of the month,
plaintiff informed the personnel director of the University that he believed that the
University had withheld continued employment from him because of his earlier
report of the obscene icons. Later that year, plaintiff filed suit against the
University, alleging that the icons constituted sexual harassment and that the
National Association of College and University Attorneys
15
school retaliated by not extending him an offer to teach for another year after he
complained of the icons.
The district court found that because plaintiff’s claim was based on Title VII, it
was not barred by the Eleventh Amendment. The court also held that even if the
icons were highly offensive, a sexual harassment claim was clearly not present,
and looked to the Supreme Court case of Oncale in noting that Title VII “does
not prohibit all verbal or physical harassment in the workplace; it is directed only
at discrimination . . . because of . . . sex.” The court further noted that “[s]exual
subject matter simply does not equal sexual harassment.” In analyzing the
University’s decision to not offer plaintiff a third contract, the court stated that it
did not have to determine whether the decision was reasonable, wise, or
appropriate, as long as it was the true reason for the failure to rehire. Because
plaintiff was unable to rebut the University’s evidence that plaintiff had received
negative evaluations of his teaching ability, the court concluded that he failed to
show that his discharge was pretextual, and granted the University’s motion for
summary judgment.
13.
Saxe v. State College Area Sch. Dist., 240 F.3d 200 (2001)
Plaintiffs, a member of the Pennsylvania state board of education as well as two
boys enrolled in the school district to whom the board of education member is a
legal guardian, filed suit against the school district, alleging that the Pennsylvania
public school’s sexual harassment policy was unconstitutionally overbroad since
it placed restrictions on the boys’ ability to “speak out about the sinful nature and
harmful effects of homosexuality.” Plaintiffs alleged that they “openly and
sincerely identify themselves as Christians. They believe, and their religion
teaches, that homosexuality is a sin.” Plaintiffs also alleged that they feel
compelled by their religion to speak out on topics, especially those that regard
moral issues.
The U.S. District Court for Middle Pennsylvania ruled against plaintiffs and held
that the school district’s anti-harassment policy was constitutional since it did not
prohibit anything already prohibited by the law. On appeal, the 3rd U.S. Circuit
Court of Appeals reversed, holding that the “mere fact that speech is defined as
‘harassing’ under federal anti-discrimination statutes does not categorically
exclude such speech from First Amendment protection.” The court noted two
U.S. Supreme Court opinions that stand for the proposition that “[i]f there is a
bedrock principle underlying the First Amendment, it is that the government may
not prohibit the expression of an idea simply because society finds the idea
offensive or disagreeable,” and that speech may not be regulated “because of the
emotional impact, or secondary effect, it may have on a listener.” The court
further noted that even though preventing discrimination in schools and in the
workplace is “not only a legitimate, but a compelling governmental interest,” no
rule exists to remove harassment from the First Amendment’s protection. In light
of the school district policy that prohibited negative speech about personal
characteristics such as “clothing,” “appearance,” “hobbies and values,” and
“social skills,” the policy “strikes at the heart of moral and political discourse,”
the court found. “That speech about ‘values’ may offend is not cause for its
prohibition, but rather the reason for its protection.”
National Association of College and University Attorneys
16
In regards to the policy’s prohibition against behavior that has the “purpose or
effect” of interfering with education, the court found the policy to “sweep in those
simple acts of teasing and name-calling that [the Supreme Court’s decision in
Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)] explicitly held
were insufficient for liability.” Furthermore, in light of the rule set forth in
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) that
student speech may be regulated generally, but only when it would disrupt or
interfere with the work of the school, or with other students’ rights, the court
found that the policy in the instant case was both vague and overbroad since
several of its passages have the capability of denigrating or belittling an individual
due to personal characteristics.
The court further found that the policy was not “susceptible to a reasonable
limiting construction” because “it reaches any speech that interferes or is intended
to interfere with educational performance or that creates or is intended to create a
hostile environment. . . In short, the policy, even narrowly read, prohibits a
substantial amount of non-vulgar, non-sponsored student speech.” That being
found, the court noted that in order for the policy to have stood, the school board
needed to show that its restrictions were necessary to prevent substantial
interference or disruption; however, it noted that it did not believe that the
harassment prohibited by the policy would rise to the level of the standard in
Tinker. The court concluded by indicating that even if it did rise to the requisite
level, the ban on speech that creates an “intimidating, hostile or offensive
environment poses a more difficult problem” since the policy’s language prohibits
“substantially more conduct than would give rise to liability” under the prior
relevant Supreme Court decisions. It also provided that when harassment, or
negative or derogatory speech about racial customs, religious tradition, language,
sexual orientation, and values does not pose a threat of substantial disruption, it is
within a student’s First Amendment rights. Accordingly, the court affirmed the
students’ right to speak out against homosexuality and threw out the public
school’s sexual harassment policy.
III.
RECENT FEDERAL REGULATIONS
The Equal Employment Opportunity Commission and the Department of Education, Office for Civil
Rights have recently issued regulations which should be consulted.
A.
OFFICE FOR CIVIL RIGHTS (“OCR”)
Immediately prior to the last change in Presidential administrations, OCR issued a
document entitled “Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties.” The OCR in this guidance takes a
different stance in terms of institutional liability than the Supreme Court did in Gebser,
summarized previously in this outline, and in Davis v. Monroe County Bd. Of Educ.,
526 U.S. 629 (1999) [a case dealing with student-to-student harassment which is beyond
the scope of this paper]. The Supreme Court held in those two cases that an institution
would not be liable for money damages pursuant to Title IX in a suit by a private plaintiff
unless an “official who has the authority to address the alleged discrimination and to
institute corrective measures...has actual knowledge” of the harassment and is
“deliberately indifferent” to it.
National Association of College and University Attorneys
17
The OCR, in contrast, takes the position in its guidance that the “appropriate official”
does not, as the Supreme Court suggests, have to be someone who is in a position to
correct the situation, but can be “any school employee a student might notify of sexual
harassment.” Moreover, the OCR reiterates its own notice standard (first formulated in
its 1997 Guidance on the same topic) that notice is deemed to have been given if a school
“knew or should have known” that harassment took place, as opposed to the “actual
notice” standard. The OCR maintains that as an enforcing agency it can impose a more
strict standard of accountability on institutions than in the context of private plaintiff
lawsuits.
To access the full text of the OCR Guidance, see:
www.ed.gov/offices/OCR/shguide/index/html.
B.
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
In June of 1999, the EEOC issued what it described as “a comprehensive policy guidance
explaining the circumstances under which employers can be held liable for unlawful
harassment by supervisors.” The guidance was promulgated to explain the EEOC’s
position as to (a) analysis of the Supreme Court decisions in Ellerth and Faragher; (b)
steps employers should take to prevent and correct harassment; and (c) the nature of
employees’ obligations to bring complaints of harassment to their employers’ attention.
For the complete text of this Guidance, see www.eeoc.gov/docs/harassment.html.
IV.
POST-ELLERTH/FARAGHER STATE LAW DEVELOPMENTS
Some state courts have declined to follow the federal liability principles set forth in the paired United
States Supreme Court decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 724 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These cases are discussed below.
A.
Stevenson v. Precision Standard, Inc., 762 So.2d 820 (2000)
A female employee sued her employer, her supervisor, and her employer’s parent
corporation on claims of battery, the tort of outrage, and invasion of privacy, which all
arose out of alleged sexual harassment by her supervisor. The facts of this case were
sharply disputed. The plaintiff testified that her supervisor had, on several occasions,
invited her out for drinks, on one occasion invited her to the lake to go out on his boat,
and on one occasion made a statement to her to the effect that there was a “tiger in that
safari outfit” she was wearing. Plaintiff also testified that after she refused these
overtures, she noticed that her job duties began to increase and that she was continuously
harassed about her performance. The plaintiff did not report any of the overtures to
management, but her union filed two separate grievances, which the court found, did not
contain any allegations of sexual harassment. On cross-examination, the plaintiff
admitted that company employees often met at a known bar, and that on several
occasions she had stopped by for purposes other than “getting drunk.” She also admitted
that it was another employee, and not her supervisor, who initially brought up the subject
of going to the lake. Plaintiff testified that the sexual harassment culminated when her
supervisor called her into his office, exposed himself, and asked for oral sex. Her
supervisor denied the allegation. Plaintiff testified that she reported the incident to the
company president almost three weeks later, and he ordered that she be transferred to
another department. After the transfer, the alleged harassment stopped. The evidence
National Association of College and University Attorneys
18
indicated that even though plaintiff was transferred, the company did not take any steps
to investigate her complaint. Plaintiff also testified that after she reported the sexual
harassment incident, she was subjected to several “random” drug tests within a fourmonth period. A jury returned a verdict against the company but exonerated the
supervisor. On appeal, the Jefferson Circuit Court granted the employer’s new trial
motion.
In its ruling on appeal, the Supreme Court of Alabama held that the jury verdict based on
a finding of negligent or wanton failure to investigate a complaint of sexual harassment
by a supervisor, where the employee failed to prove sexual harassment by the supervisor,
could not stand. In so holding, the court considered the rule in Faragher, and declined to
extend its own precedent to recognize a cause of action based on an employer’s
negligence, independent of proof of wrongful conduct of an employee. Since the
evidence of the case did not support a judgement against the company on any theory
other than respondent superior, the court awarded summary judgment in favor of the
company.
B.
Chambers v Trettco, Inc., 463 Mich 297 (2000)
The Michigan Supreme Court developed Michigan law and expressly rejected the sexual
harassment liability principles of Faragher and Ellerth in this case Ms. Chambers
alleged that during the four day period in which she was supervised by a temporary
supervisor, she was subjected to offensive conduct, including the supervisor rubbing the
plaintiff’s buttocks, grabbing her breasts, and repeatedly propositioning her for sexual
favors. When plaintiff’s permanent supervisor returned from vacation, plaintiff reported
the conduct. The plaintiff’s permanent supervisor immediately contacted the employer’s
regional director who in turn removed the harassing supervisor from the location and then
commenced an investigation. Plaintiff was assured that she would never have to report to
the harassing supervisor again. A few months later, plaintiff was terminated for failing to
report to work for several consecutive days. The plaintiff subsequently filed a lawsuit for
sexual harassment.
In refusing to follow Faragher and Ellerth, the Supreme Court of Michigan described
the differences between Title VII and the Michigan Elliott Larsen Civil Rights Act as
follows:
As noted earlier, the Michigan Civil Rights Act expressly includes sexual
harassment as a prohibited form of sex discrimination, and further
provides detailed definitions for sexual harassment that can be easily
identified by the labels “quid pro quo” and “hostile work environment.”
This stands in contrast to the analogous federal law. . . . Finally, adopting
the principles announced in Faragher and Ellerth would be inconsistent
with our decision in [Radtke v. Everett, 442 Mich 368 (1993)], in which
we applied agency principles to hold that it is the plaintiff’s burden to
prove that the employer failed to take prompt remedial action upon
reasonable notice of the creation of a hostile work environment, even
where the harassing conduct is committed by a supervisor.
The Court noted that if it did adopt the principles of Faragher and Ellerth, there would
be a significant change in determining the vicarious liability of employers in sexual
harassment cases. Further, the Michigan Supreme Court addressed the holdings issued
National Association of College and University Attorneys
19
by the United States Supreme Court and stated that the cases both: “(1) conflate the
concepts of quid pro quo harassment and hostile environment harassment, and (2) shift
the burden of proof from the employee to the employer regarding whether the employer
should be held vicariously liable ‘for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the employee.’”
After clarifying the state of the law in Michigan, the Michigan Supreme Court held that
Chambers had not stated a claim for quid pro quo sexual harassment because “there was
no tangible (adverse or otherwise) employment action that was shown to be causally
related to plaintiff’s submission to or rejection of [the temporary supervisor’s]
harassment.” The court remanded the case to the Michigan Court of Appeals in light of
its clarification of Michigan law, in order to address plaintiff’s hostile work environment
claim. The Supreme Court defined the issue as follows: “the central question to be
addressed on remand is whether plaintiff presented sufficient evidence to demonstrate
that defendant failed to rectify a problem after adequate notice.” Notice of sexual
harassment will be adequate if, by an objective standard, the totality of circumstances
were such that a reasonable employer would have been aware of a substantial probability
that sexual harassment was occurring.
On remand, the Michigan Court of Appeals found that the company took prompt and
appropriate remedial measures once the plaintiff advised her permanent supervisor that
she was being sexually harassed and, therefore, the company had no liability for the
hostile environment claim. Thus, the court overturned the $150,000 verdict in plaintiff’s
favor in Chambers v. Trettco (On Rem), 244 Mich App 614 (2001).
Specifically, the court found that “. . .Plaintiff’s general indication to defendant’s regional
director over the telephone that something was wrong did not sufficiently alert him to the
problem to the extent that the director, and thus defendant, could reasonably be charged
with actual or constructive notice that sexual harassment was taking place. Nor did the
evidence otherwise indicate that anyone with supervisory responsibility knew of
plaintiff’s four-day plight until she spoke with her normal supervisor after the offending
temporary supervisor was no longer visiting plaintiff’s workplace. . .”
C.
Pollack v. Wetterau Food Distribution Group, 11 S.W.3d 754 (1999)
In this case, the plaintiff, a former employee, brought an action against her former
employer, claiming violations of the Missouri Human Rights Act (MHRA) based on
hostile environment sexual harassment and constructive discharge. Over a period of
approximately three years, the plaintiff endured hostile environment sexual harassment
from her manager at work. Plaintiff’s manager continuously pressured her to go out with
him, followed her around the workplace, sent her numerous cards, letters, and flowers to
her both at home and work, called her at home, and even appeared at her home,
uninvited, several times. One evening, plaintiff’s manager, who was visibly intoxicated,
appeared at her door and pushed his way into her apartment. Plaintiff told him to leave,
but he refused. He was loud and called her names, until plaintiff threatened to call the
police and he left. At work, he began to use his authority to keep plaintiff away from
other male employees and enlisted the help of several line supervisors to keep track of
her. The chief union steward aided the manager in his pursuit of plaintiff, and when
plaintiff complained to him of the harassment, he laughed and told her to give her
manager a chance because he was “a nice guy.” During this period, plaintiff never
reported the harassment to higher management because she was frightened for her job,
National Association of College and University Attorneys
20
but constantly asked her harassing manager to leave her alone to no avail. When plaintiff
resigned, she informed the company’s personnel director of her manager’s sexual
harassment of her over the years. Plaintiff also told the personnel director that she did
not want to get her manager in trouble by filing a complaint for fear of retaliation by him.
Even though the company appeared to have a sexual harassment policy in place during
plaintiff’s tenure, many employees who testified at trial, including plaintiff, indicated that
they were unaware of its existence and that they never saw it posted on the company
bulletin board.
Following plaintiff’s resignation, plaintiff met several times with the company’s attorney
who served as the director of labor relations. During the first meeting, he asked plaintiff
if she wanted an investigation conducted on her sexual harassment complaints. Plaintiff
said that she did not, due to her fear of retaliation by her former manager. At the next
meeting, plaintiff advised the director that her manager had been known to use illegal
drugs and alcohol at work, and the manager was subsequently fired for failing a drug test.
After the manager’s termination, the director called plaintiff and offered her $10,000 in
cash or her job back if she signed a release. Plaintiff refused both offers, and
subsequently filed a charge of discrimination with the Missouri Commission on Human
Rights (MCHR), which issued her a right to sue. The trial court concluded that the
company was liable for hostile environment sexual harassment and constructive
discharge, and held that even though the plaintiff had not reported the harassment to
management until the day of her resignation, the company was liable either because the
MHRA imposes a system of strict liability, or because the harassment was pervasive
enough that the company knew or should have known of the harassment. The court also
found that the company failed to have in effect a sexual harassment policy that was made
known to employees, and that it failed to post notice of the policy where it could be
readily seen. Further, it found that the policy had no guarantees against retaliation, and
that the company hosted no training programs about sexual harassment and did nothing to
give employees reason to believe the policy would be enforced.
On appeal, the Missouri Court of Appeals held that because plaintiff established a
continuing violation in this case, the filing period became irrelevant. This was because
plaintiff’s manager subjected her to the same forms of harassment on a regular basis, and
thus, her claim was “based upon a series of closely-related, similar events that occurred
within the same general time period and stemmed from the same source. . . .” Moreover,
the court noted that the manager’s harassment continued unabated until the day of her
resignation. Thus, it was sufficiently demonstrated that the violation continued into the
statutory period, the court held. In regards to the company’s argument that the trial court
erroneously considered evidence of harassment that occurred outside of the workplace,
the Court of Appeals held that because a person is more likely to be intimidated and
frightened by harassing behavior that occurs at work if she is also being subjected to the
same sort of behavior at home, it was “entirely appropriate” for the trial court to consider
harassment that occurred outside of the workplace as well. The company also argued on
appeal that plaintiff could not claim that she was constructively discharged since she
assumed that the company would not take action to stop her manager’s harassment, and
because she quit without providing the company with an opportunity to remedy the
situation. Again, the Court of Appeals rejected the argument, holding that in some cases,
an employee’s failure to complain may be indicative of factors other than the tolerability
of her working conditions; thus, the court should consider the totality of the
circumstances, not merely the fact that the plaintiff failed to complain of the harassment.
National Association of College and University Attorneys
21
In this case, the court found, the plaintiff was faced with a situation that any reasonable
person would have reason to believe that she had nowhere to turn for help with the
situation, and that the circumstances support the finding that plaintiff was faced with
intolerable working conditions and that she acted reasonably in resigning, despite her
failure to complain.
Finally, in regards to the finding of strict liability on the part of the company for
plaintiff’s sexual harassment claim, the Missouri Court of Appeals refused to follow the
holdings of Faragher and Ellerth on the grounds that the applicable regulation issued by
the MCHR (which was granted broad authority by the Missouri State Legislature to issue
legislative regulations that are binding on the courts) unambiguously holds employers
liable for any sexual harassment perpetrated by their supervisors regardless of the
principles of notice or fault. Because, the Court of Appeals found, this case involved
supervisory sexual harassment, the trial court properly applied this regulation and held
the company liable regardless of whether it knew or should have known of its manager’s
harassment.
D.
Myrick v. GTE Main Street, Inc., 73 F.Supp.2d 94 (1999)
The plaintiff, a marketing consultant, brought an action against her employer and her
supervisor, alleging, among other things, that her supervisor sexually harassed her
through his “use of offensive sexual language and behavior” in violation of
Massachusetts law. The company moved to amend its answer so as to include the
affirmative defense that it exercised reasonable care in correcting and preventing any
behavior that was sexually harassing, based on the Ellerth and Faragher holdings. The
District Court, however, noted that Massachusetts law does not recognize the affirmative
defense articulated in those cases since it is contrary to the Supreme Judicial Court’s
interpretation of Massachusetts law in College-Town v. Massachusetts Comm’n
Against Discrim., 400 Mass 156 (1987), which holds that “an employer is vicariously
liable for sexually harassing conduct of its supervisory personnel and has no reasonable
care defense.” Accordingly, the District Court denied the company’s motion to amend its
answer to include that defense.
V.
RECENT DEVELOPMENTS – SAME-SEX HARASSMENT
After a patchwork quilt of decisions in various jurisdictions, the Supreme Court clarified federal law as
to liability for same-sex harassment in a decision familiarly known as Oncale, and numerous federal
decisions followed applying Oncale to various factual circumstances. In addition, various jurisdictions
have enacted specific ordinances dealing with discrimination based upon sexual orientation, and many
colleges and universities have added “sexual orientation” as one of the protected categories in their nondiscrimination policies.
A.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 629 (1998)
The Supreme Court held that same-sex sexual harassment is actionable under Title VII,
and adopted a broader view than had previously been held by various Federal Circuit
court decisions. Mr. Oncale had worked on an offshore oil rig as a member of an eightman crew. He alleged that during his employment, three male employees (two of whom
had supervisory authority) subjected him to sexually humiliating conduct in front of other
employees. He also claimed that these three male employees either physically assaulted
him in a sexual manner or threatened to rape him. When Oncale resigned from his
National Association of College and University Attorneys
22
position, he specifically requested that his records indicate that he voluntarily left because
of sexual harassment.
The Court reasoned that nothing in the statutory language of Title VII precludes same-sex
sexual harassment from being actionable. The Court also rejected that argument that the
recognition of liability for such harassment will impose a civility code on the American
workplace. In so ruling, the Court re-emphasized that Tittle VII does not cover all
physical or verbal harassment in the workplace:
“We have never held that workplace harassment, even harassment
between men and women, is automatically discrimination because of sex
merely because the words used have sexual contention or connotations.
‘The critical issue, Title VII’s text indicates, is whether members of one
sex are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.’ [citations omitted]”
The Supreme Court also observed in the course of the opinion that:
*
Title VII protects men as well as women.
*
Although male-to-male sexual harassment may not have been the
principal evil with which Title VII was concerned, statutory
prohibitions often go beyond the principal evil to cover reasonably
comparable evils.
*
Harassing conduct may be, but does not need to be, motivated by
“sexual desire” to support an inference of discrimination on the
basis of sex.
*
Title VII is not a general civility code, and does not prohibit
ordinary socializing, such as male-to-male horseplay or flirtation
between the sexes; and requires neither asexuality or androgyny in
the workplace.
*
As with other cases the Supreme Court has considered to be
unlawful, harassing conduct must be so objectively offensive as to
alter the working conditions of the victim’s employment; and that
this objective severity must be judged from the perspective of a
reasonable person in the plaintiff’s situation, considering the
totality of the circumstances.
*
In an athletic note, the Court stated that “[a] professional football
player’s working environment is not severely or pervasively
abusive - - and, thus there is no sexual harassment . . . where the
coach smacks him on the buttocks as he heads onto the field, even
if the same behavior would reasonably be experienced as abusive
by the coach’s secretary, male or female, back at the office.”
Although the Court did not set forth express guidelines for when same-sex harassment is
“because of sex” so as to come within the ambit of Title IX, it offered that a same sex
plaintiff could create an inference of discrimination by providing evidence in one of three
veins:
*
The harasser is a homosexual (supporting a conclusion that the
harassment may be motivated by sexual desire); or
National Association of College and University Attorneys
23
*
The harasser is motivated by a general hostility to the presence of
men or women in the workplace; or
*
The harasser, as shown by direct comparative evidence, treated
members of one sex differently than members of the other sex.
Same-sex harassment case law decided before Oncale should not be relied on. PostOncale decisions regarding same-sex harassment, whether they involve students under
Title IX or employees, tend to follow the Oncale framework summarized above.
B.
Schroeder v. Hamilton School District, 123 S.Ct. 435 (2002) (cert. denied)
The United States Supreme Court recently refused to consider this case which involved
an openly homosexual male elementary and middle school teacher plaintiff who sued the
school district for which he was working on grounds of sexual orientation discrimination
in violation of the Equal Protection Clause of the 14th Amendment of the United States
Constitution and 42 U.S.C. § 1983. The plaintiff claimed that the school district failed to
take effective steps to prevent the harassment and taunts he received from faculty
members, students, and parents because of his homosexuality, thereby denying him equal
protection of the law. The plaintiff asserted that the school district had previously held
several student orientation and faculty training sessions in regards to the school’s sex and
race discrimination policies, however, no such programs for sexual orientation
discrimination existed; thus, plaintiff contended, the district handled his harassment
complaint differently than previous complaints of race or gender harassment.
The appeals court found that the events alleged by the plaintiff neither illustrated that he
had been discriminated against because of his homosexuality nor that he had been treated
differently than his non-homosexual colleagues. The court noted that the school had a
sensitivity particular to racial issues since blacks had only recently begun to attend it, and
that the “events merely demonstrate[d] the school district’s priorities for use of time and
resources in favor of its students.” Further, the court emphasized that the students
responsible for the taunts, who could be recognized, were promptly disciplined by the
school administrators, and that the school administrators also made an effort to discover
the anonymous students. Because there was no evidence that the school district officials
did not make a sincere effort to deal with the plaintiff’s complaints, or were deliberately
indifferent to his situation, and because the majority of the harassment was anonymous,
the court stated that it was skeptical about whether much more could have been done by
the school district to prevent the harassment. Accordingly, the court upheld the district
court’s grant of summary judgment.
C.
Parkman v. University of South Carolina, 44 Fed.Appx. 606, 2002 WL 1792098 (4th
Cir. (S.C.)) (unpublished opinion)
Plaintiff, a University head librarian, was given a series of written reprimands after a
student library assistant resigned, claiming that plaintiff had subjected him to same-sex
harassment. A few years later, a female assistant began working for plaintiff who
eventually filed a “charging document” against him with the University’s equal
opportunity programs office, alleging that he had called her “stupid” and a “power
hungry bitch,” had treated her less favorably than her male co-workers, and had made
sexual advances toward male students and student assistants in the music library.
Plaintiff received a copy of this, as well as another charging document filed by a male
graduate student assistant. This document accused plaintiff of physically touching him
National Association of College and University Attorneys
24
against his will, making suggestive comments to him, and referring to plaintiff’s female
assistant as a “power hungry bitch.” Plaintiff then filed written responses which denied
that he ever engaged in unprofessional conduct or made sexual advances toward male
students or student assistants. Plaintiff was temporarily reassigned to a special project
related to the music library, without a reduction in his pay or benefits, while an
investigation was launched. The investigation revealed that plaintiff had violated the
University’s sexual harassment policy. The dean then required plaintiff to attend sexual
harassment prevention training and permanently assigned him to the special projects
librarian position. Plaintiff appealed the reprimand and reassignment, claiming that he
had been denied his procedural due process rights. This appeal was denied, so plaintiff
filed an appeal to the University’s faculty grievance committee, which found that the
EOP office had violated plaintiff’s rights by refusing to provide him with the names and
statements of the witnesses against him, and referred the case to the University’s general
counsel. After several failed attempts to mediate, plaintiff filed suit alleging that the
University and several school officials violated his due process rights under § 1983.
The district court granted summary judgment to the University, and plaintiff appealed to
the 4th U.S. Circuit Court of Appeals. The court first noted that because plaintiff’s
reassignment left his tenure status and rate of compensation intact, a property interest
protected by the Due Process Clause was not implicated. It further reasoned that because
plaintiff remained employed by his public employer after a public announcement of the
reasons for his reprimand and reassignment was made, “he suffered no damage to his
employment status and cannot be heard to complain that he has been made
unemployable,” and “any harm that came to [plaintiff’s] chances for career advancement
with the University did not result from the publication of the reasons for the . . .
reprimand/reassignment, but from the reasons for such action.” In addressing plaintiff’s
invasion of privacy claim, the court again affirmed the district court’s ruling that no
evidence had been offered to show that the University or its employees invaded his
privacy, and also that he based his privacy claim “solely on speculation.”
D.
Baynard v. Alexandria City School Board, 535 U.S. 954 (2002) (cert. denied)
The U.S. Supreme Court declined to consider the 4th U.S. Circuit Court of Appeals’
ruling wherein the plaintiff, a former elementary school student, sued his school
principal, superintendent, and the school board under Title IX and § 1983. Plaintiff
asserted that both the school board and its employees were aware that he was being
sexually molested by his sixth-grade teacher, and failed to end the abuse by taking
corrective measures. Prior to plaintiff’s complaint, another former elementary student
had contacted the school’s principal and informed her that he had been sexually molested
approximately 15 years earlier by the sixth-grade teacher. He told the principal that he
did not want to report the abuse to authorities; he merely wanted to warn the principal so
as to prevent future incidents. The principal did not report the incident or take any
further action, citing that she thought the abuse was an isolated incident.
Plaintiff was sexually abused by this teacher from the time he entered his sixth-grade
class until he went to college. At one time the school librarian noticed plaintiff
inappropriately sitting on the teacher’s lap, and reported it to the principal. The teacher
convinced the principal, however, that it was only a “father-son chat.” One month later,
another school teacher informed the principal that she had heard from her neighbor that
the sixth-grade teacher abused children. It was at this time when the principal reported a
National Association of College and University Attorneys
25
possible danger to the students to the school board’s personnel director, who immediately
began an investigation. After the investigation, which was closed due to lack of
evidence, the sixth-grade teacher resigned, but continued to abuse plaintiff. When
plaintiff entered college, he finally reported the abuse.
The court of appeals found that, in light of what the principal knew by the time the
teacher reported to her what she heard about the sixth-grade teacher, a reasonable jury
would be able to conclude that the conduct of which she was aware provided her with at
least constructive knowledge of an unreasonable risk of constitutional injury. The court
also found that “[the principal’s] failure to respond to mounting evidence of potential
misconduct by [the teacher] exhibited deliberate indifference.” Regarding the school
board’s liability, the court found that even though the principal should have been aware
of the potential for the abuse, “there was no evidence in the record to support a
conclusion that [the principal] was in fact aware that a student was being abused.”
Further, the court found that the principal did not have the power to take corrective action
on behalf of the school board, and therefore could not be considered its functional
equivalent. Thus, the court held, no rational jury could have concluded that her
knowledge of the ongoing abuse should be imputed to the school district.
E.
Laday v. Catalyst Technology, Inc., 2002 U.S. App. Lexis 16476 (5th Cir. 2002)
The male plaintiff alleged that when his male supervisor observed him in his vehicle with
his girlfriend, his supervisor commented “I see you got a girl. You know I’m jealous.”
After this comment, the plaintiff alleged that he was bending down when his supervisor
approached him and fondled his posterior. The plaintiff reported the incident, and told
his supervisor not to touch him. The plaintiff’s colleagues taunted him for reporting the
incident. The court followed Oncale, finding that the alleged conduct came within the
category of proof showing that the alleged harasser made explicit or implicit proposals of
unwanted sexual activity and provided credible evidence that the harasser was
homosexual. For the first time, a court addressed the question of what “constitutes
credible evidence that the harasser was homosexual.” The court concluded that there
could be two types of evidence supporting such proof: (1) evidence suggesting that the
harasser intended to have some kind of sexual conduct with the plaintiff rather than
merely to humiliate him for reasons unrelated to sexual interest; or (2) proof that the
alleged harasser made same-sex sexual advances to others, especially to other employees.
The court found that the plaintiff’s claim could go to a jury since the plaintiff had offered
evidence of both types.
F.
P.H. v. School District of Kansas City, MO., 265 F.3d 653 (2001)
Plaintiff, a male high school student, sued the school district, alleging violations of §
1983 and Title IX on the grounds that school officials had knowledge of and remained
indifferent to his two-year sexual relationship with his teacher. For approximately over a
two-year period, plaintiff and his teacher spent a significant amount of time together
every school day, and also engaged in daily oral sex. Plaintiff began to miss 25 percent
of his classes, was excessively tardy, and his grades began to plummet. Several teachers
noticed this and complained to the school’s officials. The principal approached the
professor who always had a logical explanation for the amount of time he spent with
students. Plaintiff’s mother discovered the sexual abuse situation and reported it to
school officials. The school principal immediately removed the teacher from the
National Association of College and University Attorneys
26
classroom, initiated a full investigation, and reported the situation to a local division of
family services.
In regards to plaintiff’s civil rights claims, the 8th U.S. Circuit Court of Appeals
found that the plaintiff failed to demonstrate “a material issue of fact showing that
[the school district] had notice of the conduct and was deliberately indifferent to
or tacitly authorized the inappropriate behavior,” since his tardiness did not
indicate sexual abuse. Further, the court found that immediately after plaintiff’s
mother complained, the school district took corrective action. Regarding the Title
IX claim, the court again affirmed the district court’s grant of summary judgment
to the school district in light of the fact that even though concern arose as to
plaintiff’s tardiness, allegations of sexual abuse never surfaced, and when
questioned about the time he spent with students, the teacher always had a logical
explanation.
G.
Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir.
2001)
The plaintiff alleged harassment and retaliation by his supervisor and department chair.
He claimed that his supervisor engaged in unwanted and offensive sexual conduct in a
hotel room at an academic conference, and that he was told that he had to “get along”
with the supervisor, and that his immigration status might be jeopardized if he no longer
worked at the University. Although the plaintiff testified that his supervisor first
promised that such incidents would not happen again, the unwanted and offensive sexual
advances allegedly occurred at several subsequent conferences and in Houston. The
supervisor’s insurance company settled the claims individually made against the
supervisor for $290,000 before trial. A jury returned a verdict in the amount of $448,000
against the University for the same-sex harassment. The Fifth Circuit unanimously
affirmed, noting the repeated, aggressive sexual advances, the refusals by the plaintiff,
and the humiliating and degrading nature of the conduct. The court also concluded that
the University had failed to exercise reasonable care to prevent and properly correct the
harassment. For reports on this case in the Chronicle of Higher Education, see Courtney
Leatherman, “Jury Awards $448,000 to Fired Texas Professor,” November 19, 1999; and
Piper Fogg, “Court Upholds Verdict Against University of Texas Medical Center in Case
of Same-Sex Harassment,” August 13, 2001. For other cases reaching analogous
conclusions, see Shepherd v. Slater Steels Corporation, 168 F.3d 998 (7th Cir. 1999);
Cooke v. Stefani Management Services, Inc., 250 F.3d 564 (7th Cir. 2001).
H.
Rene v. MGM Grand Hotel, 305 F.2d 1061 (9th Cir. 2002)
Plaintiff was an openly gay man who alleged sexual harassment by his male coworkers
and supervisor. Plaintiff presented "extensive evidence" that his supervisor and
coworkers subjected him to a hostile work environment on "almost a daily basis" over a
two year period. The conduct included whistling and blowing kisses at plaintiff, calling
him "sweetheart" and "muneca" (Spanish for doll), telling crude jokes and giving
sexually oriented joke gifts, and forcing plaintiff to look at pictures of naked men having
sex. Plaintiff stated "on more times than he could count" the harassment involved
offensive physical conduct of a sexual nature. Plaintiff stated he was caressed, hugged,
and his coworkers would touch his body like they would a woman. Coworkers grabbed
National Association of College and University Attorneys
27
plaintiff in the crotch and poked their fingers in his anus through his clothing. Plaintiff
stated that he thought he was treated this way because he was gay.
MGM moved for summary judgment arguing that sexual orientation claims are
impermissible. The district court granted its motion. The 9th Circuit reversed, noting
that "it appears that [plaintiff's] otherwise viable cause of action was defeated because he
believed he was targeted because he is gay. This is not the law. We have surveyed the
many cases finding a violation of Title VII based on the offensive touching of the
genitalia, buttocks, or breasts of women. In none of those cases has a court denied relief
because the victim was, or might have been, a lesbian. The sexual orientation of the
victim was simply irrelevant. If sexual orientation is irrelevant for a female victim, we
see no reason why it is not also irrelevant for a male victim." Relying on a prior 9th
Circuit opinion - Nichols v. Azteca Restaurant Enterprises, 256 F. 3d 864 (9th Cir.
2001) (holding that same-sex gender stereotyping is actionable harassment under Title
VII), the court noted that the similarities between Nichols and Rene are "striking." The
Court noted, "In both cases, a male gay employee was 'teased' or 'mocked' by his male
co-workers because he walked like a woman. And in both cases, a male gay employee
was referred to by his male co-workers in female terms - 'she', 'her' and 'female whore' in
Nichols; 'sweetheart' and 'muneca' (doll) in the present case to remind him that he did not
conform with their gender based stereotypes." The court concluded that this type of
harassment was actionable and that plaintiff presented a case of "actionable gender
stereotyping harassment."
The court held that the sexual orientation of the plaintiff is not relevant to prove same sex
harassment and gender stereotyping harassment may be actionable.
I.
Bibby v. Philadelphia Coca Cola Bottling Company, 260 F.3d 257 (3rd Cir. 2001)
Plaintiff male employee claimed to have been subjected to same sex sexual harassment
by employer. Conduct included one physical assault with no sexual component and one
incident of serious name calling with a sexual component. The comments towards
plaintiff included, “everybody knows you’re gay as a three doll bill,” “everybody knows
you’re a faggot,” and “everybody knows you take it up the ass.” The physical assault
was when a co-worker slammed plaintiff up against the locker after telling the plaintiff to
get out of the locker room. Plaintiff was also referred to as a “sissy.” In 1993, plaintiff,
who is gay, experienced some medical difficulties, including weight loss, breathing
problems and vomiting blood. Plaintiff claimed he was perceived by his employer and
co-workers as having HIV/AIDS, but did not file a perceived disability claim under the
ADA. Finally, plaintiff complained that there was graffiti of a sexual nature on the
bathroom wall, some of which contained plaintiff’s name, which was allowed to remain
on the walls for “much longer than other graffiti.”
The issue on appeal was whether plaintiff presented evidence sufficient to support a
claim of same-sex sexual harassment under Title VII.
The court examined the history of same sex harassment claims, noting that in the U.S.
Supreme Court’s 1998 decision in Oncale v. Sundowner, the Supreme Court
unanimously held that Title VII does provide a cause of action for same sex harassment.
The current issue in same sex harassment cases is how they are proven. The 3rd Circuit
stated:
National Association of College and University Attorneys
28
“As the Supreme Court noted in Oncale, when the harasser and victim are
of the opposite sex, there is a reasonable inference that the harasser is
acting because of the victim’s sex. Thus, when a heterosexual man makes
implicit or explicit proposals of sexual activity to a woman co-worker or
subordinate, it is easy to conclude or at least infer that the behavior is
motivated by her sex. Similarly, if a man is aggressively rude to a woman,
disparaging her or sabotaging her work, it is possible to infer that he is
acting of a general hostility to the presence of women in the workplace.
These inferences are not always so clear when the harasser and victim are
of the same sex.”(emphasis added)
The employee was required to prove that the conduct at issue was not “merely tinged
with offensive sexual connotations, but actually constituted discrimination because of
sex.” The court then stated there are several situations in which same sex harassment can
be seen as discrimination because of sex. The first is where there is evidence that the
harasser sexually desires the victim. Thus, when a gay or lesbian supervisor treats a same
sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser
acts as he or she does because of the victim’s sex. Same sex harassment might also be
found where there is no sexual attraction, but where the harasser displays hostility to the
presence of a particular sex in the workplace. Finally, same sex harassment may be
proven by presenting evidence that the harasser’s conduct was motivated by a belief that
the victim did not conform to the stereotypes of his or her gender. The court analyzed
that plaintiff’s claim was actually that he was discriminated against because of his sexual
orientation, which was not actionable the Title VII thereby affirming summary judgment
for the employer.
J.
EEOC v. Kraft Foods North America, Inc. (U.S. District Court, N.D. Alamakee)
In the most recent national legal development, on October 25, 2002, the EEOC issued the
following press release describing a lawsuit it has filed:
“EEOC Sues Kraft Foods North America, Inc. For Same-Sex Harassment Of Men
Suit Says Male Workers Were Groped, Propositioned, and Sexually Assaulted by Male
Supervisor
BIRMINGHAM, Ala. - The U.S. Equal Employment Opportunity Commission (EEOC)
today filed suit against global food giant Kraft Foods North America, Inc. and its
subsidiary Nabisco, Inc. under Title VII of the Civil Rights Act of 1964 on behalf of a
class of male employees who were subjected to egregious same-sex harassment and
retaliation by their male supervisor at a sales and distribution facility in Birmingham,
Alabama. Kraft Foods, which recently acquired Nabisco in a merger, is based in
Northfield, Illinois, and employs approximately 113,000 people worldwide.
The suit, EEOC v. Kraft Foods North America, Inc., filed in the United States District
Court for the Northern District of Alabama, Southern Division, charges Kraft with
creating a sexually hostile work environment for male employees and retaliating against
them for complaining about the harassment. In particular, the suit alleges that male
employees were the subject of sexual comments, were propositioned for sex, were
touched and grabbed, and were sexually assaulted by a Nabisco male supervisor.
The Commission seeks monetary damages for the male employees who were subjected to
this conduct as well as certain equitable relief to make certain that this conduct does not
National Association of College and University Attorneys
29
recur. Under the Civil Rights Act of 1991, which amended Title VII, individuals are
entitled to up to $300,000 each in compensatory and punitive damages - in addition to
other relief - for egregious discrimination by large employers (those with 500 employees
or more). The EEOC filed suit after exhausting its conciliation efforts to reach a
voluntary pre-litigation settlement.
‘The EEOC has long held that sexual harassment of men by men at work violates federal
civil rights laws - a position that was affirmed by the Supreme Court in 1998,’ said
Charles E. Guerrier, Regional Attorney for the federal Agency's Birmingham District
Office, which filed the suit. ‘No person should be required to run a gauntlet of sexual
abuse in return for the privilege of being allowed to work and make a living.’
Sexual harassment charge filings with the EEOC by men have shown a steady increase
over the years from 10% of all sexual harassment filings in Fiscal Year 1994 to nearly
14% of all such filings in FY 2001. The Commission does not statistically track samesex, male-on-male, harassment charges because the agency does not track the sex of the
alleged harasser. Nevertheless, anecdotal evidence shows that most sexual harassment
allegations by men are against other men.
Cynthia Pierre, District Director of the EEOC's Birmingham office, said: ‘Employers
have an obligation under the law to make certain that those whom they put in charge of
the workplace do not create an offensive and sexually-charged environment for men or
women. Additionally, when an employer learns of such unlawful conduct, that employer
must take prompt and effective action to make certain that the harassment stops and the
environment that fostered such harassment is dismantled. Failure to do so, will result in
action by the EEOC.’"
K.
GUIDANCE FROM OCR
The Department of Education, Office for Civil rights (“OCR”), in the “Revised Sexual
Harassment Guidance” cited above, states as follows:
“Although Title IX does not prohibit discrimination on the basis of sexual
orientation, sexual harassment directed at gay or lesbian students that is
sufficiently serious to limit or deny a student’s ability to participate in or
benefit from the school’s program constitutes sexual harassment
prohibited by Title IX under the circumstances described in this
guidance.”
L.
STATE STATUTES, MUNICIPAL ORDINANCES, AND POLICIES
PROHIBITING DISCRIMINATION BASED UPON SEXUAL ORIENTATION
According to the National Center for Lesbian Rights, as cited by the Women’s Sports
Foundation in its excellent publication, “It Takes a Team: Making Sports Safe for
Lesbian, Gay, Bisexual, and Transgender Athletes and Coaches,” [p. 33], eight states plus
the District of Columbia have statutes prohibiting discrimination or harassment on the
basis of sexual orientation in educational facilities [California, Connecticut,
Massachusetts, Minnesota, New Jersey, Vermont, Washington, and Wisconsin]. The
same source indicates that 12 states and the District of Columbia, as well as “hundreds”
of municipalities, have statutes or ordinances which prohibit discrimination on the basis
of sexual orientation in employment [California, Connecticut, Hawaii, Maryland,
Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island,
National Association of College and University Attorneys
30
Vermont, and Wisconsin]. This information and other information about the National
Center for Lesbian Rights can be accessed at <www.ncrights.org>. [870 Market Street,
Ste. 570, San Francisco, CA 94102; (415) 392-6257].
In addition, many colleges and universities have adopted policy statements prohibiting
discrimination based upon sexual orientation, or generally prohibiting unprofessional
misconduct.
M.
Warren v. Reading School District, 278 F.3d 163 (2002)
Plaintiff filed suit on behalf of her son, a fourth-grade student, against the school district,
the principal, and its superintendent, alleging violations of Title IX and § 1983. After
plaintiff’s son transferred into his fourth-grade class, his teacher began to play a “game”
with him entitled “shoulders” which, as the court explained, is considered “a
masturbatory exercise engaged in for sexual gratification.” This type of game-playing
occurred two or three times per week during the school year, and at least one other time
the following summer. The next fall, plaintiff read an entry in her son’s journal that
described playing “shoulders,” and after questioning him about what it was, plaintiff
reported the teacher’s conduct to the county’s child and youth services division, which
informed the school district about it. The teacher was soon suspended and later resigned.
During the trial, the parent of another student testified that he approached the principal
about possible inappropriate activity with his son, but the principal told him that she was
too busy to listen to him, and referred him to the school guidance counselor, who did not
respond to his complaint. The 3rd U.S. Circuit Court of Appeals, in regards to the
principal’s liability, found that the principal was an “appropriate person” who had
authority to institute corrective measures on the school district’s behalf, and that a
reasonable jury could find that the principal knew of and remained indifferent to the
sexual misconduct. As for the guidance counselor, the court found that because his
primary duty was dealing with children who have behavioral and academic problems
(and not teacher misconduct), he was not an “appropriate person” to take corrective
action. Finally, the court held that a new trial needed to take place due to the false theory
under which the case had initially been submitted to the jury, which allowed for a
possible verdict based upon the guidance counselor’s knowledge and deliberate
indifference, rather than the principal’s.
N.
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (2002)
Plaintiff, a high school student, sued the school committee, alleging sexual harassment
and retaliation in violation of Title IX. Plaintiff alleged that she suffered profound
distress after the school’s discipline matron entered the bathroom and peered directly into
a crack between the door and the wall while plaintiff was using the bathroom. Plaintiff
also asserted that she reported the incident to the school psychologist, but school officials
failed to investigate or take action against the matron. Further, she asserted that after she
complained, the matron stalked her, “continually leering,” “scowling,” and “pointing” at
her.
This 1st U.S. Circuit Court of Appeals found that plaintiff failed to show that the alleged
harassment was based on sex, and that the person alleged to engage in the harassment
was responsible for general discipline, including the female restrooms. It also stated that,
“[g]iven the plethora of potential problems that persistently plague high schools in this
day and age- drugs, alcohol, and the like- [the matron’s] actions, though insensitive, do
National Association of College and University Attorneys
31
not exceed her mandate.” Regarding the school officials’ alleged failure to investigate,
the court noted that the claim was not actionable when conduct creating a sex-based
hostile environment was not present. Finally, the court upheld the dismissal of plaintiff’s
retaliation claim since it lacked several necessary elements, such as that the matron knew
of her complaint, or that any repercussions arose from it.
VI.
NEWEST TREND – PROHIBITION OF HARASSMENT BASED UPON GENDER
IDENTITY/TRANSGENDER STATUS
There is an escalating trend across the country to specifically include anti-discrimination protection to
persons on the basis of gender identity or transgender status. A representative example of how laws and
ordinances define this protected status can be found in the definition in the State of Rhode Island statute:
“Gender Identity or Expression” includes a person’s actual or perceived gender, as well
as a person’s gender identity, gender-related self image, gender-related appearance, or
gender-related expression, whether or not that gender identify, gender-related self image,
gender-related appearance, or gender-related expression is different from that
traditionally associated with the person’s sex at birth.”
A.
STATE STATUTES AND MUNICIPAL ORDINANCES PROHIBITING
DISCRIMINATION ON THE BASIS OF GENDER IDENTITY OR
TRANSGENDER STATUS
As listed by the Transgender Law & Policy Institute, at www.transgenderlaw.org/ndlaws/
index.htm., two states (Rhode Island and Minnesota), eight counties, and 45 cities have
laws which generally prohibit discrimination on the basis of gender identity or
expression. In addition, six cities and one county are listed as prohibiting such
discrimination in public employment only.
B.
FEDERAL CASES HOLDING THAT DISCRIMINATION ON THE BASIS OF
GENDER NON-CONFORMITY OR TRANSGENDER STATUS IS A FORM OF
DISCRIMINATION ON THE BASIS OF SEX
The National Center for Lesbian Rights has collected federal cases holding at least in
some part that discrimination on the basis of gender non-conformity and/or transgender
status is a form of discrimination on the basis of sex. This collection includes one U.S.
Supreme Court citation [Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), cited as
recognizing that “sex stereotyping” can constitute sex discrimination], nine federal
Circuit Court of Appeals decisions, and thirteen federal District Court decisions. This
compilation, with short summaries, can be accessed at www.ncirights.org or at
www.transgenderlaw.org/cases.federalcases.htm.
C.
STATE CASES RECOGNIZING PROTECTION FOR TRANSGENDER PEOPLE
UNDER STATE LAW
The Transgender Policy Institute has summarized, at www.transgenderlaw.org.org.
ndcaselaw.index.htm, the following compilations.
Three states [New York,
Massachusetts, and New Jersey] have court interpretations concluding that sex
discrimination protection includes transgender people. Two States, Connecticut and
Hawaii, have state fair employment agency rulings to the same effect. Two state courts
[Massachusetts and New Jersey] and two state administrative agencies [Florida and
National Association of College and University Attorneys
32
Illinois] have ruled that transsexual people are protected under state disability laws, and
the Oregon Bureau of Labor and Industry found the same in limited circumstances. In
addition, the D.C. Superior Court, with jurisdiction over the District of Columbia, has
interpreted a D.C. statute prohibiting discrimination based upon ‘personal appearance’ to
include transgender people.
D.
COLLEGES AND UNIVERSITIES WITH “TRANSGENDER INCLUSIVE”
POLICIES
As listed by the Transgender Law & Policy Institute, at www.transgenderlaw.org/college/
index.htm., the following colleges and universities have “pro-actively” adopted
transgender inclusive non-discrimination policies:
American University, Brown
University, DePauw University, University of Iowa, Kalamazoo College, Knox College,
Rutgers University, and the University of Washington.
In addition, the same website indicates that other colleges have adopted policies pursuant
to state or municipal requirements: University of Minnesota system and other colleges
and universities in Minnesota; colleges and universities in Rhode Island; and colleges and
universities in New York City, including City University of New York, Columbia
University, and New York University.
E.
OTHER RECENT CASE LAW
In Cruzan v. Special School District No. 1, 294 F.3d 981 (2002), the court held that a
Minnesota school district which allowed a “transgendered” co-worker to use the
women’s faculty restroom did not unlawfully discriminate on the basis of sex by creating
a “hostile environment” for the plaintiff co-worker.
F.
OCR GUIDANCE
The OCR “Revised Sexual Harassment Guidance” previously cited states:
“Though beyond the scope of this guidance, gender-based harassment,
which may include acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex or sex-stereotyping, but not
involving conduct of a sexual nature, is also a form of sex discrimination
to which a school must respond, it if rises to a level that denies or limits a
student’s ability to participate in or benefit from the educational program.”
VII.
CONCLUSION/ FURTHER READING
The long period of statutory, regulatory, and case-law development beginning in the 1970s culminated
in 1998 and 1999 with landmark Supreme Court decisions in Gebser, Davis, Faragher and Ellerth, and
Oncale that clarified institutional liability for faculty-student, student-student, supervisory, and same sex
harassment under Title VII and Title IX. Subsequent decisions have for the most part applied these
decisions to particular circumstances, and advocates have advanced the case for including sexual
orientation and gender identity protection in anti-discrimination policies.
After the dust has settled from this relative flurry of Supreme Court activity, the most effective way for a
college or university to minimize liability for discriminatory harassment has not changed significantly.
That is, the institution must endorse from the top and widely promulgate an easy to understand antiharassment policy and complaint procedure, and regularly train supervisors and at least inform
employees and students regarding that policy. The institution must also be able to demonstrate a pattern
National Association of College and University Attorneys
33
and practice of prompt investigation, and where appropriate, immediate efforts to address and correct
harassing misconduct. Good faith behavior to promptly redress legitimate complaints is not only the fair
and right thing to do, but also functions as the best defense to any subsequent lawsuit.
For further selected reading, consider:
*
"Sexual Harassment On Campus: A Legal Compendium" (NACUA, 4th Edition, 2003;
Elsa Kircher Cole, Editor)
*
"How to Investigate a Sexual Harassment Complaint" (NACUA Pamphlet, 2nd Edition,
2002; Elsa Kircher Cole and Thomas P. Hustoles)
*
"Evolving Law in Same-Sex Harassment and Sexual Orientation Discrimination" (Mary
Ann Connell paper; presented at 23rd Annual Stetson University College of Law
Conference on Law and Higher Education)
*
"It Takes a Team!: Making Sports Safe for Lesbian, Gay, Bisexual, and Transgender
Athletes and Coaches" (Women's Sports Foundation, 2002)
*
Edward N. Stoner II and Catherine S. Ryan, "Burlington, Faragher, Oncale, and
Beyond: Recent Developments in Title VII Jurisprudence," 26 J.C.&U.L. 645 (2000).
*
William Kaplin, "A Typology and Critique of Title IX Sexual Harassment Law After
Gebser and Davis, " 26 J.C.&U.L. 615 (2000).
National Association of College and University Attorneys
34
Case Citations for Sexual Harassment in Employment Law:
Recent Developments
Baynard v. Alexandria City School Board, 268 F.3d 228 (4th Cir.), cert. denied, 535 U.S. 954
(2002)
Bibby v. Philadelphia Coca Cola Bottling Company, 260 F.3d 257 (3rd Cir. 2001)
Chambers v. Trettco Inc., 463 Mich. 297 (2000)
Cruzan v. Special School District No. 1, 294 F.3d 981 (8th Cir. 2002)
Doe v. Benicia Unified School District, 206 F.Supp. 2d 1048 (E.D.Cal. 2002)
Fierro v. Saks Fifth Avenue, 13 F.Supp. 2d 481 (S.D.N.Y. 1998)
Fort Wayne Educ. Assn. v. Fort Wayne Community Schools, No. 02A03-0006-CV-229 (Ct.
App. Ind. Aug. 9, 2001)
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (1st Cir. 2002)
Gawley v. Indiana University, 276 F.3d 301 (7th Cir. 2001)
Herberg v. California Institute of the Arts, Cal.App. 2Dist., No. B148834, Aug. 13, 2002
Hernandez Loring v. Universidad Metropolitana, 186 F.Supp. 2d 81 (D.P.R. 2002)
Johnson v. Independent School District No. 47, D.Minn., No. 00-CV-2073 JMR/RLE, April
2, 2002
King v. Board of Control of Eastern Michigan University, 221 F.Supp. 2d 783 (E.D.Mich.
2002)
K.P. v. Corsey, 228 F.Supp. 2d 547 (D.N.J. 2002)
Laday v. Catalyst Technology, Inc., 2002 U.S. App. Lexis 16476 (5th Cir. 2002)
Lutz v. Purdue Univ., 133 F.Supp. 2d 1101 (N.D.Ind. 2001)
Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001)
Myrick v. GTE Main Street, Inc., 73 F.Supp. 2d 94 (D.Mass. 1999)
National Association of College and University Attorneys
35
Oden v. Northern Marianas College, 284 F.3d 1058 (9th Cir. 2002)
Parkman v. University of South Carolina, 44 Fed. Appx. 606, 2002 WL 1792098 (4th Cir.
(S.C.)) (unpublished opinion)
P.H. v. School District of Kansas City, Mo., 265 F.3d 653 (8th Cir. 2001)
Pollack v. Wetterau Food Distribution Group, 11 S.W.3d 754 (Mo. App. 1999)
Rene v. MGM Grand Hotel, 305 F.2d 1061 (9th Cir. 2002)
Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001)
Schroeder v. Hamilton School District, 282 F.3d 946 (7th Cir.), cert. denied, 123 S.Ct. 435
(2002)
Scrivener v. Socorro Independent School Dist., 169 F.3d 969 (5th Cir. 1999)
Sconce v. Tandy Corp., 9 F.Supp. 2d 773 (W.D.Ky. 1998)
Singleton v. Chicago Sch. Reform Bd. of Tr. of the City of Chicago, 2002 WL 2017082
(N.D.Ill.)
Stevenson v. Precision Standard, Inc., 762 So. 2d 820 (Ala. 2000)
Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999)
Warren v. Reading School District, 278 F.3d 163 (3rd Cir. 2002)
Waters v. Metropolitan State University, 52 Fed. Appx. 1, 2002 WL 31398957 (8th Cir.
(Minn.)) (unpublished opinion)
Watkins v. Professional Security Bureau, Ltd., 1999 U.S. App. Lexis 29841 (4th Cir. Nov. 15,
1999)
National Association of College and University Attorneys
36