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”??

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.

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.

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.

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.