Ignoring Limits on Harassment Liability

Back in 1999, in Davis v. Monroe County Board of Education, the Supreme Court laid down a test for when sexual harassment rises to the level of “discrimination” for purposes of Title IX, the federal law banning sex discrimination in schools. Recognizing the fact that students frequently insult and tease one another in ways that would be intolerable in the workplace, the court set the bar higher for plaintiffs suing schools rather than employers. Instead of having to show just that harassment was “severe or pervasive” enough to create a “hostile or offensive environment,” as employees do, students have to show that harassment was severe and pervasive enough to interfere with access to an education.

Oddly, this protection against lawsuits has been overlooked not just by some lower court judges, but also by the very schools that benefit from it. In Jennings v. University of North Carolina, the Fourth Circuit Court of Appeals is rehearing en banc a recent panel decision which ruled 2-to-1 against a harassment claim based on inappropriate sexual discussions between a male coach and female athletes, which the plaintiff witnessed.

The panel majority argued that the conduct was not “severe or pervasive” enough to create a “hostile environment,” since the discussions were seldom aimed at the plaintiff. (Courts have typically given little weight to such “second-hand harassment”). The dissent argued that the conduct was severe or pervasive enough to create a hostile environment. The University seems not to have disputed that the “severe or pervasive” standard applied, or that the plaintiff could prevail merely by showing the existence of a “hostile environment,” even though other courts have recognized that harassment of students by school employees must be both severe and pervasive enough to interfere with access to an education.

But the standard for harassment claims against schools is more exacting, by design. In the higher education context, there are additional reasons for a more demanding standard. As Justice Kennedy observed in his dissent in the Davis case, the lower courts have repeatedly invalidated college harassment codes on First Amendment grounds. Most of the cases Justice Kennedy cited involved codes that banned speech that creates a hostile environment, much like workplace harassment law.

While a single offensive utterance doesn’t create a hostile work environment all by itself, a complainant can allege a hostile environment based on the offensive utterances of many different speakers, even if none of them individually make many offensive statements or intend to create a hostile environment. That effectively forces many employers to adopt “zero tolerance” policies banning racist or sexist speech.

By contrast, the Fourth Circuit’s own ruling in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), prevented a university from prohibiting racist and sexist student speech that allegedly created a “hostile and distracting learning environment.”

Moreover, students routinely have R-rated discussions in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As the Eleventh Circuit observed in Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987), “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.”

By relying on workplace standards, the university may well lose a case it would otherwise win. As a result, colleges in the Fourth Circuit may end up having to police private sexual conversations among students in ways that are difficult to enforce, especially if the full Fourth Circuit rejects the panel’s reasoning and treats comments overheard by a plaintiff, but not aimed at her, as harassment.


  • The Sigma Xi citation should actually be 993 F.2d 386 (at least according to lexis).

  • Yes, that’s right, the Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University citation should be to 993 F.2d 386 (4th Cir. 1993).

    By the way, it’s worth noting that even under the more lenient workplace standard applied in Jennings v. University of North Carolina, 444 F.3d 255 (4th Cir. 2006), the plaintiff might not be entitled to prevail.

    Nearly all of the comments the plaintiff complains of were not aimed at her. See Gleason v. Mesirow Financial, 118 F.3d 1134 (7th Cir. 1997) (discouting significance of “second hand harassment”).

    Moreover, her coach might well have asked male players about their sexual exploits, just as he did his female players (it’s sadly common for such discussions to occur with male athletes), calling into question whether his crude comments constituted harassment “because of sex,” as the law requires for a plaintiff to recover. See, e.g., Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998) (dismissing a Title IX claim based on a supervisor’s graphic, demeaning descriptions to a female employee of his sex life with his wife, since there was no evidence that he “would not have acted in exactly the same way to a student who happened to be male”); Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 132 P.3d 211, 42 Cal.Rptr.3d 2 (2006) (frequent, recurrent discussions of sex and sexual fantasies by plaintiff’s co-workers did not state actionable harassment claim, since they were either not based on sex, or involved second-hand harassment; holding that second-hand harassment is entitled to little weight).

    Moreover, a lot of the comments that plaintiff sought to sue over were comments she was not even aware of at the time. See Jennings v. University of North Carolina, 444 F.3d 255, 277 (4th Cir. 2006).

    Courts have tended to treat comments the plaintiffs wasn’t even aware of at the time as being irrelevant. Cotrill v. MFA, Inc., 443 F.3d 629, 636-37 (8th Cir. 2006) (offensive conduct the plaintiff didn’t know about at the time it occurred cannot support a harassment claim).

    And even inappropriate queries about a plaintiff’s sex life frequently are deemed by some courts not to create a hostile work environment. Powell v. Yellow Book, 445 F.3d 1074 (8th Cir. 2006) (offensive remarks, including but not limited to discussions of sexual fantasies, discussions of sexual exploits, and sexual advances, did not qualify as severe or pervasive enough to constitute illegal sexual harassment).

    But the fact that the court granted rehearing en banc suggests that the likelihood of reversal of the panel’s decision in favor of the university is fairly high. The majority of Fourth Circuit panel decisions reheard en banc are reversed.

  • Both of the standards discussed above are vague and subjective. As a result, no woman can know whether her Title IX rights have been violated unless she files a lawsuit and hears the verdict.

    Unfortunately, the cost of such a lawsuit, including years of litigation and the risk of having to pay hundreds of thousands of dollars of legal fees if you lose, is so high that most women wouldn’t even bother trying to vindicate these rights.

    By creating such subjective and ambiguous standards, the supreme court has effectively denied many women their Title IX rights.

  • Cracking down on dirty talk at college: What else could the Founding Fathers have had in mind as the high and proper business of the Congress and federal courts when they set out our fair Constitution?

  • So, AM, your complaint is that women – without a clear standard – can’t know if their rights have been violated?

    Did I read that correctly?

    Seriously, for future reference: if you aren’t sure whether your rights have been violated, you probably shouldn’t sue anyone.

    Just a thought.

  • Sdrawkcab,

    I tried to respond to your post, but it didn’t make it through for some reason.

    Any way, women might respond to your advice by saying “If it’s not clear whether you violated my legal rights, assume you did.”

    What you’re saying is that any uncertainty about the law should be resolved in favor of the person accused of violating that right, which is a silly rule.

  • AM, not silly in the least.

    if you aren’t sure whether your rights have been violated, then how can the comments made possibly meet either of the standards?

    “I think I’ve been subjected to a hostile and offensive environment, but I’m not sure”??