SEXUAL HARASSMENT Information for Educators Adapted from a presentation by JoAnn Wright, Attorney at Law to MISD Administrators on September 15, 2003

WHAT IS SEXUAL HARASSMENT? Sexual harassment is a form of discrimination on the basis of sex that is prohibited in both the workplace under Title VII and in the school context under Title IX. Sexual harassment may be difficult to define when circumstances require that a line be drawn between conduct involving jokes or comments of a sexual nature that a reasonable person would not find offensive and conduct that is objectionably hostile and offensive.

The Equal Employment Opportunity Commission (EEOC) has defined sexual harassment to be: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that… unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive working environment.

EMPLOYEE-TO-STUDENT HARASSMENT

Students subjected to sexual abuse by a school employee typically raise a federal constitutional claim under the “due process clause” of the 14 th Amendment to the U.S. Constitution, claiming that the abuse deprived them of a constitutional right: To “bodily integrity”; To be free from sexual abuse at school; To be protected from sexual abuse by school employees; and/or To a safe school environment. Violation of the Student’s Substantive Due Process Rights

Sex Discrimination Students subjected to sexual abuse by a school employee may also raise claims of sex discrimination under: The “equal protection clause” of the 14 th Amendment; and Title IX of the Education Amendments of 1972 prohibiting discrimination on the basis of sex in schools receiving federal funds.

Civil Rights Students subjected to sexual abuse by a school employee may also raise civil rights claims under the Civil Rights Act, Section 1983.

STUDENT-TO-STUDENT HARASSMENT

Student-to-Student Harassment Recent supreme court case – Davis v. Monroe County Board of Education 119 U.S (1999) LaShonda Davis was allegedly subjected to harassment from a fellow 5 th grade student. He made vulgar and suggestive comments and gestures. LaShonda allegedly reported this to her teachers and the principal, but nothing was done to discipline the student or separate the two. The perpetrator was finally charged through the juvenile court process. LaShonda filed suit in district court against the school and the principal for violations of her civil rights and violations of Title IX alleging that the conduct of the harasser created a hostile environment that had a negative effect on her. Her grades dropped, she was unable to concentrate on her studies, and she wrote a suicide ote. The district court and the court of appeals dismissed her claim. Continued…

The Supreme Court however, found that a cause of action can exist for student-to-student sexual harassment. In order to be liable, including liability for money damages, there must be: Harassment that is severe, pervasive and objectively offensive; Actual knowledge of the harassment; Deliberate indifference to the harassment, and A deprivation of the victim’s access or benefits of educational opportunities.

What Does This Mean for Educators TODAY? It is very important to monitor student conduct in light of this decision. If female students are being teased, subjected to sexual disparagement, or harassed, it must be corrected and the perpetrators disciplined. Do not just ignore the conduct as “boys will be boys.”

Other Notable Cases: Students may be suspended for sexual harassment – Aaron A. v. Ector County Independent School District Don’t ignore repeated harassment – A school may be held liable for its own decision to remain idle in the face of known student-to-student harassment in its school – Murrell v. School District No. 1 Don’t ignore claims of harassment – Davison v. Santa Barbara High School District Don’t stand around and watch it happen – Intervene if you witness peer harassment – Carroll K. v. Fayette County Board of Education Continued…

Take prompt action – Take quick and effective steps to correct the situation – Soper v. Hoben Harassment due to perceived homosexuality can constitute sexual harassment – Ray v. Antioch Unified School District Don’t take allegations of student harassment lightly – Vance v. Spencer County Public School District Do the right thing – Take immediate and appropriate action – Vaird v. School District of Philadelphia; and Don’t join the harassment – Snelling v. Fall Mountain Regional School District

Supervisor-To-Subordinate Harassment

School District Liability in Sexual Harassment Complaints Brought by Employees Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; Submission to or rejection of such conduct by an individual is uses as the basis for employment decisions affecting such individual; or 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. EEOC Guidelines, 29 CFR SS (a)

Two Types of Sexual Harassment “Quid Pro Quo” Sexual Harassment “Hostile Environment” Sexual Harassment

“Quid Pro Quo” Sexual Harassment Something for something – a supervisor conditions the granting of benefit upon the receipt of sexual favors from a subordinate or punishes the subordinate for rejecting the offer. The acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment in order to create liability.

“Hostile Environment” Sexual Harassment When one or more supervisors or coworkers creates an atmosphere that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive environment. It must be sufficiently severe or pervasive so as to “alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Savings Bank v Vinson

“Hostile Environment” Sexual Harassment Standard of Reasonableness: Applying the “reasonable person” or “reasonable man or woman” approach to determine whether a hostile environment exists: Conduct that many men consider objectionable may offend many women. Ellison v. Brady Was the conduct welcomed? The challenged conduct must be “unwelcome” in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the coduct as undesireable or offensive. Henson v. City of Dundee Where the employee never verbally rejects the supervisor’s sexual advances, yet ther is not contention or evidence that the employee ever invited them, evidence that the employee consistently demonstrated unalterable resistance to all sexual advances is sufficient to establish their unwelcomeness. Chamberlain v. 101 Realty Co.

“Hostile Environment” Sexual Harassment Duty of supervisors to “police” the workplace It is no defense to claim that the employee “assumed the risk” by entering employment in a workplace where humor, language, and conversations are rough hewn and vulgar. Wverick v. Bayou Steel Corp. and Waltmam v. International Paper Company

Sexual Favoritism as Sexual Harassment Is there a cause of action under Title IX when it involves only consenting adults? No, generally in the absence of any pattern of sexual harassment, an employer is usually not liable under Title VII when that employer gives preferential treatment to one with whom he/she is having a private, voluntary sexual relationship. Is there a cause of action if favoritism is coupled with a pattern of improper sexual conduct by the employer? Yes, a Title VII cause of action may exist if favoritism is coupled with a pattern of improper sexual conduct by the employer. Priest v. Rotary

What Can You Do To Help Prevent Sexual Harassment? Raise your awareness of: what conduct constitutes sexual harassment; and how to identify potential harassment situations Encourage victims of harassment to come forward.