Sexual Harassment Liability
in School and at Work
Determined by US Supreme Court

Many of the decisions to come out of the US Supreme Court's 1997-98 term no doubt made it a memorable year for the justices--not the least of which was yet another decision adverse to the President in his assertion of executive privilege to shield various subordinates from orders to testify under subpoena.

Three Significant Rulings

Without question, however, the court issued more crucial decisions on the topic of sexual harassment in 1997-98 than in any previous term. Rulings in three cases have significantly changed the boundaries of sexual harassment liability for both employers and educational institutions.

The most controversial of the three is Gebser v. Lago Vista Independent School District, a 5-4 decision favorable to schools that might be sued over sexual harassment toward students by school employees.

Late in the 1990-91 school year, Alida Gebser, an eighth-grader in the middle school of a Texas school district, met a teacher in the district's high school when she joined his book discussion group. When school resumed in the fall, Gebser was assigned to classes taught by this teacher. On a number of occasions throughout the academic year, the two had sexual intercourse, often during class
time.

Gebser never reported the relationship; however, after the two were discovered having sex in his car, the school district fired the teacher. Shortly thereafter, Gebser and her mother sued the district, alleging sexual harassment as outlawed by Title IX of the Education Amendments of 1972.

Pursuant to Title IX, an individual may not be subjected to discrimination on the basis of sex in any educational program or activity that receives federal funds.

Writing on behalf of the majority, Justice O'Connor concluded that an action against a school for damages over an employee's sexual harassment may be initiated only if "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the [school's] programs and fails adequately to respond."

According to Justice O'Connor, it is beyond dispute "that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher's conduct is reprehensible and undermines the basic purposes of the educational system.

"The issue in this case, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner."

A Bewildering Variety of Stances

In Oncale v. Sundowner Offshore Services, Inc., the court addressed what it termed "a bewildering variety of stances" that lower courts had taken on whether workplace sexual harassment, as prohibited under Title VII of the Civil Rights Act, might occur "when the harasser and the harassed employee are of the same
sex."

Joseph Oncale worked on an off-shore oil rig in the Gulf of Mexico as part of an eight-man crew. On various occasions, however, Oncale was "forcibly subjected to sex-related, humiliating actions against him" by his male co-workers. These included being physically assaulted in a sexual manner and threatened with rape.

Title VII prohibits employment discrimination on the bases of race, color, religion, sex and national origin. In considering cases under Title VII, courts have long deemed sexual harassment between persons of different genders to be a form of unlawful sex discrimination.

In Oncale's case, however, a lower court had determined that Title VII did not provide him a basis for claiming sexual harassment by male co-workers. In a rare unanimous ruling, however, the Supreme Court reversed that holding.

Writing on behalf of the court, Justice Scalia conceded that "male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII." Nevertheless, he observed, "nothing in Title VII necessarily bars a claim of discrimination 'because of . . . sex' merely because the plaintiff and defendant (or the person charged with acting on behalf of the defendant) are of the same sex."

Finally, Faragher v. City of Boca Raton purports to resolve another issue concerning sexual harassment in the workplace: the circumstances under which an employer may be held liable for hostile environment conduct by a supervisor.

While she was working as a lifeguard for the City of Boca Raton, Florida, Beth Ann Faragher had been subjected to repeated acts of harassment by two male supervisors. One would frequently make lewd remarks and speak of women in offensive terms. The other told Faragher, "Date me or clean the toilets for a year."

Ultimately, Faragher resigned and sued the City of Boca Raton in federal court, claiming that the city was liable for the hostile environment sexual harassment by her supervisors.

In his opinion for the court, Justice Souter voiced dissatisfaction with arguments typically advanced in lawsuits against employers over hostile environment behavior by supervisors. One is based in what is often termed respondeat superior, which holds an employer liable for the actions of its employees when those actions are performed within the course and scope of their employment.

The problem, Justice Souter contended, is that sexual harassment is almost never within the course and scope of any employee's job. On this basis, then, it would be virtually impossible to hold an employer liable for its harassing supervisors.

Meanwhile, others claim that supervisors--merely by virtue of being supervisors--are always acting on behalf of their employer. Accordingly, an employer could nearly always be liable for sexual harassment by its supervisors.

Justice Souter concluded that an employer may be liable "to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."

In such a lawsuit, however, an employer may present a valid defense to prevail over such a suit if the employer exercised reasonable care to "prevent and correct promptly" the harassment, and the victimized employee "failed to take advantage of any preventive or corrective opportunities" offered by the employer.

Dissenters Highlight Flaws in Gebser Majority Opinion

On behalf of the four dissenters in Gebser, Justice Stevens argued that the majority was "not faithful" to either Supreme Court precedent or the Court's "duty to interpret, rather than to revise, congressional commands."

Justice Stevens concluded that, "[a]s a matter of policy, the Court ranks protection of the school district's purse above the protection of immature high school students that those rules would provide."

Typically, the law regarding sexual harassment in schools has mirrored the law of sexual harassment in the workplace. Gebser, then, represents a significant departure from that trend.

For this reason, some commentators have been critical of the apparent irony of the decision. Many would argue that schools should be held to a higher standard than employers in protecting potential victims from harassment. The effect of Gebser, some contend, is to make it easier for a school to escape liability
for sexual harassment.

Gebser does not alter, however, most other aspects sexual harassment law for educational institutions. For example, the holding does not affect the definitions of quid pro quo and hostile environment sexual harassment--long recognized as forms of unlawful sex discrimination.

Moreover, the decision does not relieve an institution of the obligation to enact and vigorously enforce policies prohibiting sexual harassment by employees or students.

Published in the Fall 1998 Edition of In Brief