Lessons to Be Learned from Sexual Harassment Case Studies�

Personnel Administrators of North Carolina

October 23, 2019

Colin Shive

Tharrington Smith, LLP

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© 2019 Tharrington Smith, LLP

(QUICK!) Affordable Care Act Update

• The IRS is done issuing penalty notices for the 2015 and 2016 calendar years.
• The IRS has started issuing penalty notices for the 2017 calendar year and appears to be escalating its enforcement activities.
• IRS staff are giving greater scrutiny to the methodology and data underlying employers’ determination of full-time employees.
• The IRS is requiring individuals who receive Premium Tax Credits to purchase coverage on an exchange to obtain documents from their employers proving that they are entitled to the Premium Tax Credits.

Now That’s Done…

Scenario 1

• Transfer Policy
• Policy Code: ____/_____ Alternative Learning Programs/Schools
• Students generally are assigned to a school based on attendance area. However, the superintendent or Board may assign any student to a school outside of his or her attendance area when the superintendent or Board determines that such action is in the best interest of the student and would not contravene the overall intent of the board’s school assignment policies.

• Additional Discipline?
• N.C. Gen. Stat. Ann. § 115C-390.7
• A principal may recommend to the superintendent the long-term suspension of any student who willfully engages in conduct that violates a provision of the Code of Student Conduct that authorizes long-term suspension. Only the superintendent has the authority to long-term suspend a student.
• If the student recommended for long-term suspension declines the opportunity for a hearing, the superintendent shall review the circumstances of the recommended long-term suspension. Following such review, the superintendent (i) may impose the suspension if is it consistent with board policies and appropriate under the circumstances, (ii) may impose another appropriate penalty authorized by board policy, or (iii) may decline to impose any penalty.

• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Female student raised allegations that male student had been sexually harassing her for at least a month despite her pleas for him to stop.
• Complaint investigated by Assistant Principal. Assistant Principal interviewed multiple witnesses and determined allegations were substantiated.
• Male student received a 10-day suspension and was transferred to an alternative school for the last semester of his senior year.
• Male student’s admission to college revoked.

• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Male student filed federal lawsuit alleging that the School Board’s handling of the sexual harassment allegations against him violated his rights under:
• (1) Title IX
• (3) Fourteenth Amendment (Due Process)
• (4) Fourteenth Amendment (Equal Protection Claims)

• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Title IX and Equal Protection Claims
• “Courts have recognized two theories that could support an Equal Protection or Title IX claim in student-discipline cases: a ‘selective enforcement’ theory and an ‘erroneous outcome’ theory.”
• “[U]nder the ‘erroneous outcome’ theory, a plaintiff can claim that he or she is innocent and was ‘wrongly found to have committed an offense,’ ” while “under the ‘selective enforcement’ theory, ‘regardless of the student's guilt or innocence,’ a plaintiff can argue that ‘the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender.’ ”

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• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Title IX and Equal Protection Claims
• “[T]o support a Title IX or equal protection claim under the selective enforcement theory, a ‘male plaintiff ‘must demonstrate that a female was in circumstances sufficiently similar to his own and was treated more favorably by the [school].’”
• “In order to make out an erroneous outcome claim under Title IX or the Equal Protection Clause, a plaintiff, ‘in addition to claiming innocence,’ must ‘have evidence in the record (1) sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding and (2) establishing a particularized causal connection between the flawed outcome and gender bias.’”

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• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Plaintiff also suggests that three PowerPoint slides that the school system used in Hess’s Title IX training are evidence of hypervigilance in Title IX enforcement resulting in gender bias. These slides mention the “#MeToo Movement” and the accompanying media attention, and state that Title IX enforcement is important and sexual harassment is illegal. . . . These slides contain prudent advice for school officials tasked with handling sexual harassment allegations, and nothing in them suggests that school officials should enforce the school's Title IX obligations discriminatorily against male students. And even accepting Plaintiff's claim that these slides promote “hypervigilance” in Title IX enforcement, they make no mention at all of gender and would, at best, “reflect a bias against people accused of sexual harassment and in favor of victims and indicate nothing about gender discrimination.” Courts have widely held that vigilance in enforcing Title IX, even when it results in bias in favor of victims and against those accused of misconduct, is not evidence of anti-male bias.

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• Possible Claims from Student?
• Doe v. Fairfax County School Board (September 11, 2019)
• Due Process Claim Dismissed
• “Here, the undisputed facts demonstrate that Plaintiff received all of the process due to him with regard to both his initial suspension and his eventual reassignment to an alternative school. Prior to the Plaintiff’s initial suspension, Hess informed the Plaintiff and his parents of the allegations against him and the Plaintiff voluntarily provided a written statement in which he denied the charges. Plaintiff and his parents were subsequently informed of and participated in a disciplinary hearing conducted by a hearing officer for the Division Superintendent, where they had the opportunity to present Plaintiff's case in response to the sexual harassment charge, including by submitting statements of two character witnesses. After the hearing officer issued a written decision explaining her finding that Plaintiff had committed a serious offense in violation of Defendant's sexual harassment policy and would be reassigned to Mountain View, Plaintiff appealed that decision to the School Board, which upheld the hearing officer's decision after allowing Plaintiff to submit written statements on his behalf.”

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• State Board Policy SSCH-006
• “Any student who is the victim of a violent criminal offense committed against him or her while he or she was in or on the grounds of a public elementary, middle or secondary school or charter school that he or she attends shall be allowed to attend another school in the LEA, provided there is such a school in the LEA that offers instruction at the student’s grade level and provided the student’s choice shall not be limited to persistently dangerous schools.”

• State Board Policy SSCH-006
• Violent Criminal Offenses are the following crimes:
• Homicide as defined in G.S. §14-17 and 14-18;
• Assault Resulting in Serious Bodily Injury as defined in G.S. §14-32.4;
• Assault Involving Use of a Weapon as defined in G.S. §14-32 through 14-34.10;
• Rape as defined in G.S. §14-27.2,14-27.3 and 14-27.7A;
• Sexual Offense as defined in G.S §14-27.4, 14-27.5 and 14-27.7A;
• Sexual Assault as defined in G.S. §14-27.5A and 14-33(c)(2);
• Kidnapping as defined in G.S. §14-39;
• Robbery with a Dangerous Weapon as defined in G.S. §14-87; and
• Indecent Liberties with a Minor as defined in G.S. §14-202.1, 14-202.2 and 14-202.4.

Scenario 2

• Definition of Harassment and Hostile Environment
• For purposes of this policy, harassment or bullying behavior is any pattern of gestures or written, electronic, or verbal communications, or any physical act or any threatening communication that:
• a) places a student or school employee in actual and reasonable fear of harm to his or her person or damage to his or her property; or
• b) creates or is certain to create a hostile environment by substantially interfering with or impairing a student's educational performance, opportunities, or benefits or by adversely altering the conditions of an employee’s employment.

• Definition of Harassment and Hostile Environment
• “Hostile environment” means that the victim subjectively views the conduct as harassment or bullying and that the conduct is objectively severe or pervasive enough that a reasonable person would agree that it is harassment or bullying. A hostile environment may be created through pervasive or persistent misbehavior or a single incident, if sufficiently severe.

• Definition of Harassment and Hostile Environment
• Harassment and bullying include, but are not limited to, behavior described above that is reasonably perceived as being motivated by any actual or perceived differentiating characteristic or motivated by an individual’s association with a person who has or is perceived to have a differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, socioeconomic status, academic status, gender identity, physical appearance, sexual orientation, or mental, physical, developmental, or sensory disability. Examples of behavior that may constitute bullying or harassment include, but are not limited to, verbal taunts, name-calling and put-downs, epithets, derogatory comments or slurs, lewd propositions, extortion of money or possessions, implied or stated threats, assault, impeding or blocking movement, offensive touching, and visual insults such as derogatory posters or cartoons.

• Definition of Harassment and Hostile Environment
• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
• a) submission to the conduct is made, either explicitly or implicitly, a term or condition of an individual's employment, academic progress, or completion of a school-related activity;
• b) submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual, or in the case of a student, submission to or rejection of such conduct is used in evaluating the student's performance within a course of study or other school-related activity; or
• c) such conduct is sufficiently severe, persistent, or pervasive that it has the purpose or effect of unreasonably interfering with an employee's work or performance or a student's educational performance, limiting a student's ability to participate in or benefit from an educational program or environment, or creating an abusive, intimidating, hostile, or offensive work or educational environment.

• Definition of Harassment and Hostile Environment
• Sexually harassing conduct may include, but is not limited to, deliberate, unwelcome touching that has sexual connotations or is of a sexual nature, suggestions or demands for sexual involvement accompanied by implied or overt promises of preferential treatment or threats, pressure for sexual activity, continued or repeated offensive sexual flirtations, advances or propositions, continued or repeated verbal remarks about an individual's body, sexually degrading words used toward an individual or to describe an individual, sexual assault, sexual violence, or the display of sexually suggestive drawings, objects, pictures or written materials. Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, but not involving sexual activity or language, may be combined with incidents of sexually harassing conduct to determine if the incidents of sexually harassing conduct are sufficiently serious to create a sexually hostile environment.

• Definition of Harassment and Hostile Environment
• Sexually harassing conduct may include, but is not limited to, deliberate, unwelcome touching that has sexual connotations or is of a sexual nature, suggestions or demands for sexual involvement accompanied by implied or overt promises of preferential treatment or threats, pressure for sexual activity, continued or repeated offensive sexual flirtations, advances or propositions, continued or repeated verbal remarks about an individual's body, sexually degrading words used toward an individual or to describe an individual, sexual assault, sexual violence, or the display of sexually suggestive drawings, objects, pictures or written materials. Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, but not involving sexual activity or language, may be combined with incidents of sexually harassing conduct to determine if the incidents of sexually harassing conduct are sufficiently serious to create a sexually hostile environment.

• Definition of Harassment and Hostile Environment
• The Board prohibits unlawful gender-based harassment. Gender-based harassment is also a type of harassment. Gender-based harassment may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping but not involving conduct of a sexual nature.

• PROPOSED Regulations
• The proposed regulation would adopt a clear definition of sexual harassment actionable under Title IX:
• A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment);
• Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
• Sexual assault

• PROPOSED Regulations
• Consistent with U.S. Supreme Court precedent, the proposed regulation would hold a school liable under Title IX only when it is “deliberately indifferent” to known sexual harassment, meaning its response is “clearly unreasonable in light of known circumstances.”

Court Decisions in the #MeToo Context

• High school student newspaper published anonymous student letter complaining of “chauvinism” among male P.E. teachers.
• The newspaper ran the following response from a male P.E. teacher:
• “Dear Editor, As a male physical education teacher at Lake Braddock, I was somewhat taken aback by the recent letter accusing some members of our staff of chauvinism. I cannot speak for every member of the staff, but as for myself, I like girls, and the many things they can accomplish. My two females at home are a sixteen year old whom I permit to chauffeur my son to and from his many activities, and my wife who is an adequate cook and housekeeper. My wife also does light yard work enabling me to play golf, and pursue many other masculine activities. Hopefully this letter will convince those girls in physical education at Lake Braddock that we have the utmost respect for their feminine talents. Sincerely, Don Seemuller”

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• Students and parents complained, and the teacher ended up with a “Needs Improvement” rating in “Professional Responsibility” and no step increase.
• The teacher sued. On appeal, the court held that the teacher’s speech was?
1. Sexual harassment and entirely outside the ambit of the First Amendment
2. Speech on a matter of private concern
3. “Curricular speech”
4. Speech “pursuant to official duties
5. Speech on a matter of public concern

• cshive@tharringtonsmith.com
• 919.821.4711