Negligence

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School Law for Teachers
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School Law for Teachers
Sexual Harassment
May 2001
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Overview

• Two categories for sexual harassment cases -
• Adult (adult to adult)
• Employee initiated workplace discrimination on
  the basis of race, sex, religion, color or
  national origin
  (Title VII of CRA of 1964
  actions)
• Student (adult to student or peer to peer)
• (Title IX of Educational Amendments of 1972
  actions)

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Adult to Adult Harassment Employer to Employee
or Peer to Peer
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Sexual harassment of employees Title VII of Civil
Rights Actof 1964
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Sexual harassmentof employees

• Violates Title VII when
• submission is term of employment or
• submission or rejection is basis for decisions or
• situation unreasonably interferes with work
  performance or
• situation creates hostile environment

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• Does your school have an policy on sexual
  harassment for adults who work there?
• Should it?
• What would the spin-offs of such a policy be?

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Critical inquiry
Stop!

• Is the sexual conduct unwelcome?

School
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Quid pro quo sexual harassment of employees

• To obtain sexual favors individual with authority
  makes threats or promises
• Just the threat or promise is needed to pursue

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Hostile environment

• Severe or pervasive conduct that alters
  conditions of employment and creates abusive
  working environment
• ie
• sexual remarks or sexual touching
• one severe incident like assault
• pornography or graffiti

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Hostile environment factors

• Verbal, physical, or both
• Frequency?
• Hostile and patently offensive
• Co-worker or supervisor
• Did others join?
• Directed at more than one
• Tangible harm not necessary

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• What are the two types of harassment?
• Is allegation enough to pursue charges?
• What constitutes a hostile work environment?

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Same gender harassment

• Claims can be brought under Title VII
• Members of one sex exposed to disadvantageous
  terms which members of the other sex are not

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Harassment of employees by supervisors

• Employer may be vicariously liable for
  hostile environment created by supervisor

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Tangible employment actions

• Hiring
• Firing
• Failing to promote
• Reassignment with different responsibilities
• Significant change in benefits
• If no tangible employment action taken, employer
  can raise affirmative defense

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Affirmative defense

• Two necessary elements
• Employer exercised reasonable care to prevent and
  correct
• Employee unreasonably failed to take advantage of
  preventive or corrective opportunities

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Sexual harassment by coworkers or third parties

• Employer may be liable if manager or
  supervisor
• knew or should have known
• failed to take timely corrective action

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• What is tangible action?
• What is non-tangible action?
• What is defense for tangible action?
• What is defense for non-tangible action?
• What are the two parts of an affirmative defense?

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Student Harassment by Adults
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Sexual harassment of studentsTitle IX of the
Education Amendments of 1972
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Quid pro quo sexual harassment of students

• Educational decision based on student's
  submission to unwelcome sexual conduct
• Equally unlawful if student resists and suffers
  or submits and avoids the threatened harm.

A
if...
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Hostile environment harassment

• Must be
• committed by employee, another student or a third
  party
• severe
• pervasive and
• objectively offensive
• To be liable school district must have had
  substantial control over the harasser.

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Hostile environment factors

• Effect on education
• Type, frequency, and duration
• Relationship between harasser and subject
• Number of students involved
• Age and gender of students

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Sexual behavior between students and school
employees

• Always wrongful for elementary students
• Older secondary students, consider
• nature of conduct
• relationship
• students age
• authority over student
• ability to consent

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Same gender harassment

• No Supreme Court ruling under Title IX
• OCR Guidance says Title IX covers same gender
  harassment

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Liability for harassment of students by employees

• Responsible school official must
• have actual knowledge
• have authority to correct
• respond with deliberate indifference

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Peer on Peer Harassment
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Peer sexual harassment

• Severe, pervasive and objectively
  offensiveconduct
• Denial of educational benefits
• Actual knowledge
• Deliberate indifference

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Remember Davis Test?

• Conduct is severe, pervasive, and objectively
  offensive
• Harassment deny education
• School had knowledge
• School responds with deliberate indifference

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Activity

• With a partner configure a paragraph that
  describes how a school could be liable for peer
  on peer harassment.
• With this in mind what minimum attributes should
  a peer on peer harassment policy have?

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Unresolved issues in peer harassment cases

• Definition of sexual harassment varies with age
• Who must have actual knowledge?
• ANY PROFESSIONAL!!!

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Third party harassment of students

• OCR Guidance Schools could be responsible for
  third party harassment of students
• Davis decision School must exercise substantial
  control over the harasser

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Preventive steps for schools

• Anti-discrimination policies
• Age-appropriate language and instruction
• Reporting when, whom
• No retaliation
• Prompt investigation
• Training for all staff see it, stop it
  report it