Friday, February 08, 2013

Court dismisses case challenging harassment, retaliation, and homophobia in the college athletics environment

A recent judicial opinion sheds light on the interrelationship of sexual harassment, retaliation and homophobia in the college sports environment, as well as the limits of law to address each.  The plaintiff in this case is a former student-athlete named Idana DeCecco. She sued the University of South Carolina over a set of incidents involving the head soccer coach, Shelley Smith and the assistant soccer coach, Jamie Smith, who are married to each other.  DeCecco's case stems from an incident in 2008, in which assistant coach Jamie Smith arranged a "private talk" with DeCecco in an empty locker room behind closed doors.  DeCecco claims that, at one point during the talk, Jamie Smith touched her knee, at which point she "freaked out" and immediately sought to leave the room.  Upon opening the door, however, she was confronted by an angry and accusing Shelley Smith.  DeCecco alleges that from that point on, Shelley Smith retaliated her by limiting her playing time and reducing her scholarship.  Including in that retaliation, DeCecco claims, is an inquiry Shelley Smith made into whether DeCecco was dating another player on the team.  Eventually, DeCecco transferred to another school to get away from what she called a "toxic environment" at USC.

DeCecco filed a lawsuit against the university, relying on Title IX and other law to seek damages stemming from Jamie Smith's sexual harassment and Shelley Smith's retaliation against her, but last month, the federal district court in South Carolina dismissed her case in full.  First, the court reasoned that USC did not know that Jamie Smith posed a risk of sexual hostility to student-athletes, even though other players had complained about his having made inappropriate comments, including about players' appearance.  The court also reasoned that USC lacked notice of the locker room incident itself, given that DeCecco failed to report it as sexual harassment to anyone with supervisory authority over him. 

DeCecco's failure to report the locker room incident as one of sexual harassment also prevented her from being able to pursue a retaliation claim as well.  To challenge retaliation under Title IX, the plaintiff must engage in protected activity, such as blowing the whistle on sex discrimination or harassment, and suffer some materially adverse consequence because of it.  If Shelley Smith indeed retaliated against DeCecco, the court reasoned, it was not because DeCecco had protested or reported Jamie Smith's behavior, it was due to Shelley Smith's ostensible jealousy over what she apparently perceived to have occurred in the locker room -- a motivation that does not qualify as either retaliation or sex discrimination under Title IX.

As for Shelley Smith's inquiry into DeCecco's dating status, the court interpreted this as a benign application of the team's neutral policy prohibiting relationships among teammates, and concluded that it therefore did not constitute sex discrimination against DeCecco.

In all, the court's reasoning reflects a high burden on student-athletes to protect themselves from harassment and retaliation by coaches.  In order to be on notice of Jamie Smith's capacity to sexually harass DeCecco, other players would have had to complain much more specifically about what his "inappropriate" comments entailed, as the university was not faulted for failing to have followed up for these details.  In order for Shelley Smith's reaction to the locker room incident to count as retaliation, DeCecco would have had to actively complain to her about Jamie Smith's conduct, even though the retaliation was motivated by her perception of what had occurred. Meanwhile, things that the coaches can use as leverage over players, playing time, scholarships, and, I'd argue, enforcement of the intra-team dating policy, are unexamined as weapons that create and sustain a power imbalance that keep athletes like DeCecco from speaking up about coaches' bad behavior.  Even if the court is right that the dating policy is neutral because it pertains to teammate relationships, not same-sex relationships, if the policy is being deployed in such a way to scare or suppress a player from complaining about harassment or retaliation, it's discriminatory.  

Regardless of its legal liability, USC failed to ensure the safety and well-being of one of its student athletes. In that sense, the case should serve as a reminder to college and universities to carefully monitor the climate within athletics, not only for evidence of harassment, retaliation, and homophobia, but to ensure that players are encouraged and supported to report discrimination when it occurs.

The decision is: DeCecco v. University of South Carolina, 2013 WL 168221 (D.S.C.  Jan. 16, 2013).
Cross-posted at LGBT Issues in Sport Blog