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).

Title IX Covers Harassment in Truck Driving Program

Truck driving is a male-dominated occupation. One source I read says that women are only about 5% of truck drivers nationwide. Like any gender disparity, I expect this one has its defenders; those who say that women are just less interested in doing that type of work, or naturally unqualified for some reason. But as illustrated by the facts of a recent case, women seeking to integrate male professions face discrimination and harassment, suggesting an alternative explanation for women's underrepresentation in this profession.

In 2007, Selenia Wilborn was the only woman in her class in the Tractor-Trailer Truck Driving Program operated by a community college consortium in Alabama. Even though Wilborn was deemed a qualified for the program by the administrator in charge of admissions, her instructor initially refused to accept her to the program due to his belief that women should "be at home making babies." Eventually when two other students dropped out, Wilborn was added in order to the fill the class. But the instructor targeted Wilborn from day one, making sexual jokes in her presence and finding opportunities to touch her. Another instructor participated in the harassment as well, including by allowing a pornographic film to be shown in class. Wilborn reported the harassment to program administrators after the first time it happened; the next day in class, the instructor told the students that if they had problems with the class, they needed to be keep them in the class. Wilborn continued to report her instructors' harassing conduct to the administration, but to no avail. Later, an instructor failed Wilborn on her road test, faulting her for stalling the truck after he grabbed the gear shift out of her hand. He called her "dumbass" and reiterated his position that women should have babies instead of drive trucks. Rather than retake the test, Wilborn quit the program. It was clear to her at that point that the instructors were doing everything they could to keep her from getting her license.

Wilborn sued the community college that administers the program, alleging that the harassment she faced violated Title IX and other laws (including Title VII, on the theory that the truck driving program acted as an employment agency due to its role in placing students in truck driving jobs). A federal court recently decided that the Title IX claims based on sexual harassment survived the college's motion for summary judgment. The court agreed that a jury could find that Wilborn had directed her complaints to the appropriate administrator, who while lacking supervisory authority over Wilborn's instructors, was nevertheless the administrator authorized to receive students' grievances. The fact that this administrator took no action in response to Wilborn's complaints clearly satisfies the deliberate indifference standard.

However, even though the court allowed Wilborn's sexual harassment claim to proceed, it did grant the defendant's motion for summary judgment on her Title IX claims for direct discrimination and retaliation. The court reasoned that both claims were precluded by Wilborn's decision to quit the program, rather then get kicked out. I disagree with the court here. I think that Wilborn sufficiently alleged that she was essentially forced out -- a constructive discharge, to borrow from employment law. Setting aside the harassment, which is covered by her other claim, Wilborn seems to argue that the road test was not administered fairly due to her sex. That should have been enough to predicate a claim for sex discrimination or retaliation for reporting harassment by the instructors.

Fortunately, Title IX may provide Wilborn some relief in the form of a damages award or settlement on her sexual harassment claim. If that happens, this truck driving program and other vocational programs will have stronger motivation to institute and enforce policies to curtail discrimination and harassment. Meanwhile, however, the case offers an explanation for why there are so few female truck drivers.

Decision: Wilborn v. Southern Union State Community College, 2010 WL 1294131(M.D.Ala. Mar 30, 2010.