... and Justice for All

Title IX Liability Requires Proof of Actual Knowledge of Actionable Sexual Harassment followed by Deliberate Indifference Resulting in Further Actionable Sexual Harassment, Sixth Circuit Rules

The Sixth Circuit has ruled that Title IX liability requires "proof that a school had actual knowledge of actionable sexual harassment, and that the school's deliberate indifference to it resulted in further actionable sexual harassment against" the complaining student in Kollaritsch v. Michigan State Board of Trustees. This resulted in the dismissal of four students' claims.

The Court took pains to analyze the proof components. First, it distinguished mere "harassment" which it "conservatively" described as "some type of aggressive and antagonistic behavior" that is uninvited, unwanted and non-consensual." "Actionable" sexual harassment, on the other hand, must be "(a) severe, (b) pervasive, and (c) objectively offensive." "Severe" means "something more than just juvenile behavior" even if it is "antagonistic, non-consensual, and crass." The court reiterated the Supreme Court's admonishment that "simple acts of teasing and name-calling ... even where these comments target differences in gender" are not enough. To further emphasize the standard for "actionable sexual harassment" the court pointed to a prior decision, Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, (6th Cir. 2012), where it held that harassment consisting of a shove, an "obscene sexual gesture," and a "request for oral sex" was not actionable sexual harassment.

The "pervasive" element requires "multiple incidents of harassment; one incident of harassment is not enough." "Pervasive," the court emphasized, "means 'systemic' or 'widespread.'"

Whether behavior is "objectively offensive" is not determined by the complainant's "perceptions"; the "behavior [must] be offensive to a reasonable person under the circumstances, not merely offensive to the victim, personally or subjectively."

The only ground the court broke in the decision was a holding that a student's perception of vulnerability to further sexual harassment was not enough to trigger Title IX liability.

As Judge Thapar remarked in his concurring opinion, if universities are going to get into the Title IX claim investigation and adjudication business, "we should expect them to do better."

Robert L. Abell
www.RobertAbellLaw.com

 

 

 

 

University of Kentucky Sues Its Own Newspaper

In an unusual twist, the University of Kentucky has filed suit against its own newspaper, the student-run Kentucky Kernel. See University to Sue Kernel. The Kernel sought via the Kentucky Open Records Law documents concerning a sexual harassment complaint by a student against a former faculty member and related investigation. The Kentucky Attorney General Andy Beshear ruled that the records should be disclosed by the University. So, UK, which faces a Title IX lawsuit in federal court based on its handling of a reported rape by a student, see Woman Who Accused Ex-Football Player of Rape Files Civil Rights Complaint Against University of Kentucky, has sued the Kernel as part of an effort to have overturned the Attorney General's ruling. 

Whatever the merits of UK's position, the optics don't look good: it has sued its own student newspaper.

Robert L. Abell
www.RobertAbellLaw.com

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President Bush Should Support Fair Pay Law

President Bush should follow the recent signing of the anti-genetic discrimination bill with support for passage of the Lilly Ledbetter Fair Pay Act, which would restore the ability of women who are unfairly and wrongly underpaid because of gender discrimination to recover the fair pay they have earned.  That ability was taken away last year by the Supreme Court in a 5-4 decision that disregarded the overwhelming consensus of the intermediate federal appeals courts and a common sense appreciation for the regular workplace. 

Lilly Ledbetter worked as an area supervisor for Goodyear in Alabama, the only woman out of a total of 15 area supervisors.  After nearly 20 years of faithful service and hard work, she learned that she was being paid from $500 to $1500 less per month than all her male counterparts including a number with lesser seniority.  She filed suit, a jury ruled that gender discrimination was the basis for her being underpaid and she was awarded some $250,000 of wages she had rightfully and fairly earned. 

             The Supreme Court took it away, ruling 5-4 that Ledbetter could recover only that lesser pay that occurred within the last six months of her employment.  Goodyear, of course, like many employers – studies have shown that one-third of private sector employers prohibit employees from discussing their pay – kept a tight lid on salary and pay information.  As a result, Ledbetter, despite her undeniable qualifications and hard work, was grossly underpaid in comparison with her male counterparts for many, many years.  Only when she found out what had been done to her did she file suit.  But the Supreme Court ruled no matter, she waited too late.

                The Lilly Ledbetter Fair Pay Act simply seeks to restore what every woman working in America had before the Supreme Court’s decision: that is, a realistic opportunity to recover in court the earnings and benefits that they deserve based on their performance and qualifications but have been denied because of their gender. The House of Representatives passed the bill overwhelmingly, but it died in the Senate in the face of a Republican-led filibuster with both of Kentucky’s Senators, McConnell and Bunning, standing tall against equal pay for equal work.

                It would seem a very American notion: that women (and everyone else for that matter) should be paid fairly and equally for the work their skills, abilities and labor enables them to do.  President Bush’s support for the anti-genetic discrimination bill is a sensible and reasoned response to a real world, real life problem. The Lilly Ledbetter Fair Pay Act is the same, and the President, along with Kentucky’s Senators, should line up in support of equal pay for equal work.

Robert L. Abell
www.RobertAbellLaw.com