Tuesday, June 11, 2013

Sexual Harassment Roundup

Here is another installment in our regular effort to provide summaries of all Title IX sexual harassment decisions issued by the courts:

A state court in Pennsylvania agreed that Slippery Rock University lawfully terminated a professor of sports management who, while leading a class trip to Spain, got drunk with his students and made sexual remarks to them. After the trip, a student complained to the professor about his conduct, and he responded by apologizing and by reporting to his Dean what had occurred. Eventually, a disciplinary proceeding ensued that resulted in the professor's termination, due largely to the fact that he had committed an act of sexual harassment in the past, and had agreed that he should be fired if it happened again.  The professor then appealed the decision to an arbitrator, who ordered him reinstated, finding that the university did not provide proper notice to the professor of the charges against him.  The university, in turn, appealed to the court, where the judge determined that, in fact, the notice was proper. As a second reason for overturning the arbitrator's decision, the judge noted that retaining the professor would put future students at risk of harm and the university at risk of liability under Title IX. Therefore, the arbitrator's decision was "against public policy" and should be overturned on that ground.  Slippery Rock Univ. v. Ass'n of Pa.  State College and Univ. Professors, 2013 WL 2450495 (Pa. Comm. Ct. June 7, 2013).

The parents of a disabled student sued a school district, alleging school officials' deliberate indifference to sexual assault by his peers that the student endured in the school bathroom.  However, the court determined that the school was not liable under Title IX because the parents had failed to allege that they notified school officials that he had been sexually assaulted, rather than bullied in a more generic way. C.L. ex rel. R.L. v. Leander Independent School Dist., 2013 WL 2452724 (W.D. Tex. June 4, 2013).

A former student's lawsuit against a community college based on sexual harassment by her professor was dismissed for being filed too late. The statute of limitations that applies to Title IX claims is based on the state's statute for tort claims, which in this case (in Pennsylvania) was two years. Despite the fact that the professor allegedly continued to harass the plaintiff until about a year before she filed suit, the professor was terminated as an employee of the college during that time. Because institutional liability for harassment does not extend to a harassment over which the school has no control (such as by former employees), the court reasoned that she needed to have filed a claim against the institution within two years of the professor's termination. Because she failed to do this, the plaintiff's case was dismissed as untimely. Gjeka v. Delaware County Community College, 2013 WL 2257727 (E.D.Pa., May 23, 2013).

A court dismissed a case against a school district in which a bullied student's parents allege that school officials were indifferent to bullying endured by their son.  The complaint failed to state a claim because the plaintiffs did not allege that the bullying was because of sex (such as targeting the victim for gender nonconformity, or consisting of sexual conduct). Baker v. Hamilton City Schools Bd. of Educ., 2013 WL 1131068 (S.D.Ohio, March 18, 2013).

The Sixth Circuit Court of Appeals affirmed a lower court's dismissal of a case alleging that school district officials were deliberately indifferent to known threat of sexual abuse by a teacher. Prior to the reports of sexual abuse, school officials had reprimanded and warned the teacher to curtail physical contact with students, based on reported incidents in which he had grabbed or pinched a student. Such response was not unreasonable, the court determined, because the earlier reports of physical contact were of a nonsexual nature. McCoy v. Board of Educ., Columbus City Schools, 2013 WL 538953 (6th Cir. Feb. 13, 2013).