Amidst the growing list of perpetrators and victims sparked by the #MeToo movement, New Jersey school districts should revisit their current practices and policies to make sure they are not tolerating and inadvertently reinforcing sexual harassment in the educational environment.

Schools are Not Immune to Sexual Harassment Schools are no different than other workplaces and environments; both students and employees can be vulnerable to sexual harassment. For example, a survey by the American Association of University Women (AAUW) also reported that 48 percent of students in grades 7-12 experienced some sort of sexual harassment in the 2010-2011 school year. On the employee side, a 2001 report from the U.S. Department of Education and the U.S. Department of Justice, “Indicators of School Crime and Safety,” noted that from 1995 to 1999, more than 68,000 incidents of violence (which includes sexual battery and rape) against teachers were reported.

These types of cases have found their way into the court system. In 2014, four teachers brought federal civil rights claims against an elementary school principal and the Albany, New York school district. In Utah, eight female employees sued the Iron County School District in federal court, alleging they were sexually harassed by a school counselor for several years despite complaints to the school district. In 2017, the teachers reached a $340,000 settlement, which also requires the school district to hold annual sexual harassment training for employees and administrators.

And just recently, in December 2017, two new stories of sexual harassment surfaced in New England schools. One involved a head chef in Massachusetts placed on administrative leave pending an investigation of a cafeteria worker’s allegations of sexual harassment. Another involved seventh-grade boys from New Hampshire being disciplined after girls in the school complained of sexual harassment; some of the same boys were involved in sexual harassment the year before.

Sexual Harassment Basics

Employees Employees are protected from sexual harassment as a form of sex discrimination prohibited by Title VII. The U.S. Equal Employment Opportunity Commission (EEOC) is the agency which enforces Title VII and produces guidelines regarding its enforcement. The guidelines provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,”

Its guidelines further delineate sexual harassment by two types: “quid pro quo” and “hostile environment.”

“Quid pro quo harassment” occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.”

Hostile or offensive environment harassment occurs when a member of one sex is required by another to endure sexual abuse in return for the privilege of being allowed to work and make a living and the harassment is “sufficiently severe or pervasive” to alter the conditions of [the victim’s] employment and create an abusive working environment.

The New Jersey Supreme Court has clarified that the “severe” or “pervasive” standard can be met by a single act when it is sufficiently egregious. In New Jersey, discrimination claims may also be brought under the N.J. Law Against Discrimination (NJLAD) which broadens sexual discrimination claims to include affectional or sexual orientation, as well as gender identity and expression, and discrimination.

Distinguishing between the two types of harassment is important when determining school districts’ liability.

Students Students have no recourse under Title VII and must proceed under Title IX because Title VII only applies to employer-employee relations. Student victims may pursue a private right of action against school districts under Title IX when they can show a school district’s culpability in allowing sexual harassment to exist under its watch. Students’ Title IX complaints are heard by the U.S. Office of Civil Rights.

Students may also file complaints under New Jersey’s Anti-Bullying Bill of Rights Act (ABR) or the NJLAD.

School District Liability

School districts must be aware that the trigger for damages is not the underlying discrimination but the district’s inadequate response to the discrimination, which in turn subjects an employee or student to further discrimination. A 1998 case, Gebser v. Lago Vista Independent School District, found that knowledge of a school supervisor’s wrongdoing was insufficient to impose liability on a school district when it has not had an opportunity to end the discrimination or intervene, and evidence shows the district diligently trains and investigates discrimination claims. Under Gebser, damages may be avoided “even if the harm ultimately was not averted,” according to a 2000 case, Doe v. Dallas Independent School District.

However, it should be noted that in 2017’s Remphrey v. Cherry Hill, the court recognized that the New Jersey Law Against Discrimination imposes a less burdensome requirement on students than that imposed under Title IX. Under NJLAD, the student need only show that a school granted a supervisor authority to control the school environment and that the supervisor either abused that authority or had actual or constructive knowledge of the harassment and failed to take effective measures to end the discriminatory conduct.

Furthermore, a school district will most likely not be held liable unless it has had a meaningful opportunity to respond to the discrimination about which it has been notified.

But where a school district has knowledge that its remedial action is inadequate or ineffective, it is required to take further remedial action to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, a district may be held accountable under the doctrine of vicarious liability if it has acted unreasonably in light of the known circumstances.

Students’ rights under Title IX parallel employees’ rights under Title VII. In these instances liability is found when a school district is deliberately indifferent to sexual harassment occurring during school hours or during school-sponsored events, of which it has actual knowledge, and the conduct is so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.

Prevention of Sexual Harassment

The EEOC Guidelines on Sexual Harassment state, “[p]revention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise the subject and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. The U.S. Department of Education also focuses on the prevention of discrimination by requiring schools to adopt and disseminate anti-discrimination grievance procedures and to appoint Title IX coordinators to manage schools’ compliance efforts.

The EEOC’s Guidelines further detail the components of an effective preventive program which include: 1) an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented; 2) a practice of affirmatively raising the subject with all supervisory and non-supervisory employees, expressing strong disapproval, and explaining the sanctions for harassment; 3) procedures for resolving sexual harassment complaints. The procedure should be designed to “encourage victims of harassment to come forward” and should not require a victim to complain first to the offending supervisor ; 4) an assurance of confidentiality as much as possible; and 5) the provision of effective remedies, including protection of victims and witnesses against retaliation. The EEOC considers an employer’s procedures to be part of the work environment and a district may demonstrate the use of these procedures in a defense against hostile work environment claims.

Effective Investigations

Determining Whether Conduct was Unwelcome Districts must be careful to ask the correct questions in conducting an investigation.

First a district should determine whether the alleged sexual advances were unwelcome because sexual conduct between adults becomes unlawful only when it is unwelcome. Conduct is considered unwelcome when it is unsolicited and the employee considers the conduct undesirable or offensive. During an investigation, it is important to develop detailed evidence from both the “victim” and “harasser” of the circumstances and nature of the complaint in light of the totality of the circumstances.

While questioning the “victim” and “harasser,” districts should ask for names of other possible employees with knowledge of the alleged harassment. These employees should be asked about the victim’s demeanor or behavior after the alleged harassment. They should also be questioned about the alleged harasser’s treatment of the victim before and after the alleged time of harassment. Any available corroborative evidence will help to determine the credibility of the victim and harasser and also assist the district’s investigator in interpreting each party’s subjective statements. For example, in one EEOC hearing, a violation of Title VII was found where statements of other employees supported the victim’s allegations that her supervisor made repeated sexual advances toward her; although the supervisor denied the allegations. Districts should also check if any other instances of harassment have been reported by the victim or against the harasser and what the district’s response was to those allegations.

Determining Whether the Conduct was Hostile Districts must look at several factors to determine if the alleged conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” Factors to consider include: (1) whether the conduct was verbal, physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive to the victim and to a reasonable person; (4) whether the harasser was a co-worker or a supervisor; (5) whether the harassment was perpetrated by more than one individual; and (6) whether the harassment was directed at more than one individual. A “hostile environment” claim generally requires a showing of a pattern of offensive conduct. In contrast, in “quid pro quo” cases a single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits.

The District’s Response to Sexual Harassment Allegations

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. When an employer asserts it has taken remedial action, the EEOC will investigate to determine whether the action was appropriate and, more importantly, effective.

In some instances the nature of the allegations will require school officials to contact other agencies. For example, school officials are required to contact law enforcement whenever any school employee in the course of his or her employment develops reason to believe that a crime involving sexual penetration or criminal sexual contact has been committed on school grounds. School officials must also report cyber-harassment that may constitute a criminal offense and sexting to law enforcement officials. In cases of student involvement, the Division of Child Protection and Permanency and law enforcement must be contacted if allegations involve a student and any person has a reasonable belief the child has been subjected to child abuse.

Many administrators make the mistake of contacting legal counsel only after they are confronted with a legal challenge. To avoid legal pitfalls, school districts should contact legal counsel to help review board policies and to assist with investigations when sexual harassment charges are alleged.