Sunday, August 19, 2007

Title IX and the Hostile (Internet) Environment

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.


absinthe said...

Indeed, I am aware that the fact that his probable use of university computers to write his blog does not violate any laws in and of itself. I merely mentioned it in my blog because it makes me angry, especially since a) his blog post paints his female colleagues as lazy whiners, and b) my tax money goes to pay for the computer he uses.

I am also aware that his blog post alone would almost certainly not be actionable under Title IX. However, if it is combined with other similar obnoxious behaviour in the workplace, it certainly would show a pattern of hostility towards women.

EBuz said...

I agree -- the blog post could certainly be part of what makes a hostile environment. I hope his female colleagues print it out and add it to the file they are undoubtedly keeping on him!

Gerard Harbison said...

Your post makes the claim that I posted on my blog 'a sexist and offensive commentary about female professors in his discipline.' That claim is categorically false; I posted a satirical commentary about two bloggers, Zuska and Absinthe, running an idiotic survey about potty equity. No reasonable person could read it as referring to female professors in my discipline. Indeed, the female professors in my discipline are actually out there publishing; not sitting in front of a computer whining about how they can't do science because there aren't enough women's toilets...and writing sexist commentary about anyone who disagrees with them. Or is it OK to make crude comments about the genital anatomy of those who happen to disagree with you?