Sexual harassment roundup

Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. 

A cheerleading coach's teasing of a female student's "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX.  Nor was the school district deliberately indifferent to the student's complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her.  Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015).

A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male student's sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned.  Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015).

Pervasive bullying that included keying the word "cunt" into a female classmate's car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015).

A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructor's bad boundaries, including inappropriate comments and touching.  However, a trial is warranted to determine precisely how much of the instructor's earlier bad behavior had been reported, and, consequently, whether the college's response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference.  Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015).

A university was not deliberately indifferent to a graduate student's report of sexual harassment by a professor, having responded to the student's complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor.  The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard.  The fact that the professor was the student's supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).