After reading sexist blog commentary by a University Nebraska chemistry professor, blogger Absinthe ponders whether a university professor's blog can create a hostile environment that is actionable under Title IX.
She suggests that a university's liability might turn on factors such as whether the blog was written during the work day or after hours, and whether it uses university equipment -- such as computers, networks, etc. -- or not. But while these and similar factors might be dispositive under common law principles of vicarious liability, Title IX does not so narrowly define a university's liability to only conduct that is part of an employee's scope of work. Otherwise, there could be no liability when, say, a professor writes harassing notes to his students after work and on his own stationery. The other day I blogged about a high school band director who was in a sexual relationship with his student, which was (naturally) carried on after school hours and off school property. This did not preclude a judge's conclusion that Title IX's legal standard for sexual harassment could be met.
However, courts do require that for a school to be liable under Title IX for the conduct of an employee, that conduct must result actual harm to a colleague (or a student) by compromising her ability to do her job (or to get an education). In the case Absinthe describes, the professor posted on his blog a sexist and offensive commentary about female professors in his discipline. Such remarks would likely and appropriately spark outrage, debate, and faculty discord, but I think a court would be unlikely to conclude that a blog post, standing alone, causes an actual compromise to a colleague's employment.