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School Board Journal
May / June, 1996

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Don't wait until too late
Be prepared for a sexual harassment charge

By ALAN M. MULLINS

Harassment in the workplace has long been an issue for all employers, including schools. Now, more and more courts are finding that schools have a duty to protect students, even more than employees, from harassment. It is likely that as the law becomes further developed, school districts will have to take action to prevent and respond to sexual harassment that occurs on school grounds, no matter who is involved.

Wise school boards will take action now to make clear that harassment will not be tolerated. In addition to the legal consequences, the damage to a school district of harassment charges is difficult to overstate: any accusation is profoundly damaging to school-community relations, even if it is later dismissed as unfounded. Being prepared to meet such a charge can minimize the damage.

In essence, school districts have a responsibility to provide schools that are free of sexual harassment period. To meet that responsibility, school boards need to institute sexual harassment policies, complaint procedures, and investigation procedures. Moreover, they need to ensure that these are communicated within the school community.

Sexual harassment policies and procedures should be reviewed periodically. This applies especially to those regarding students, because the law is still developing in that area.

Once policies and procedures are in place, they must be followed faithfully. School administrators must act promptly when sexual harassment is alleged. If harassment has occurred, action designed to deter further harassment must be taken.

What is harassment?

Sexual harassment is defined as all forms of unwelcome sexual activity or overtures, and any form of sexual relations between school staff and students. This can include requests for sexual favors or verbal or physical conduct of a sexual nature. Victims are not limited by sex, age, sexual orientation, marital status or general occupation. Neither are harassers. Harassment can be employee to employee, employee to student, student to student and uncommon, but not impossible student to employee. In addition, other people who come on to school grounds may be either victims or perpetrators of harassment, including staff or students from a visiting school, employees of a contractor, delivery persons, volunteers or parents.

Any attempt to artificially restrict the potential situations in which harassment can occur may restrict the ability of a school system to prevent or detect harassment.

Harassment comes in many forms. Examples may include: a supervisor's demand for sexual favors, uninvited touching of another's body, sexually demeaning or suggestive comments, obscene jokes, kidding or pictures, or even overly-persistent requests for dates.

The general rule is that the activity must be unwelcome and that fact must be made known to the instigator. However, sexual relations between a school employee and a student qualify as harassment even if the relations are consensual.

There have been no court decisions as to whether students must object to other types of sex-related activity such as comments or jokes by employees for the activity to legally constitute harassment. However, school boards would be wise to prohibit and act upon any such activity by employees, regardless of legal status. Even mild sexual advances by employees to students are inappropriate in a school setting.

Legally, there are two types of sexual harassment. The first is quid pro quo harassment in which an employee supervisor or school employee requires an employee or student to submit to sexual demands to receive job or educational benefits. Such conduct is generally recognized as inherently wrong, and is easy to identify. School districts are liable for quid pro harassment, in which an employee uses undue authority to exert influence over the victim, even if school officials were not aware that the harassment was occurring.

Hostile environment

The second classification, far more common and far more complex, is "hostile environment." A hostile environment is created when unwelcome sexual conduct unreasonably interferes with an individual's work or school performance, or creates an intimidating, hostile or offensive workplace. A school district may be liable for creating or permitting a hostile environment if: (1) the activity was unwelcome; (2) the harassment was based on sex; (3) the activity was sufficiently severe to constitute an abusive environment; and (4) there is a basis on which to impute liability to the school, usually failure to take appropriate action to stop the harassment.

In a hostile environment case, courts look to determine not only that the complaining party found the activity to be offending and to interfere with his or her work or education, but also whether a reasonable person would have had the same reaction. A hostile environment does not exist if: (1) a complaining party is affected, but a reasonable person would not have been, or (2) if a reasonable person would find the conduct offensive, but the person subjected to it does not.

Whereas quid pro quo harassment is readily apparent, a hostile environment depends upon a combination of many factors, some of which are subjective. Activity can be annoying or offensive, but not to the point that it interferes with the victim's work or education. What is harassment to one person might be acceptable to another.

It also should be noted that quid pro quo harassment can only be committed by a district employee. But a hostile environment can be created by employees, students, delivery people or anyone on the school grounds. For example, a delivery person who is regularly on school grounds may persistently seek dates from a school employee to the point that it affects the employee's work.

Because hostile environment harassment is so dependent on particular facts and situations, school districts are liable only if they knew, or should have known, about the harassment and failed to take proper remedial action. Proper action means that the response must be reasonably measured to deter further sexual harassment. If it is not, the school district will be held liable along with the harasser. As case law develops, it is possible that a school district could be found liable for hostile environment harassment even if officials did not know about it, if the district failed to have a policy or statement in place prohibiting harassment, along with a reasonable complaint procedure.

Civil rights

Liability for harassment is based on the fact that sexual harassment is held to be a civil rights violation. There are three primary sources of liability for school related sexual harassment: Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 1983 of the Civil Rights Act of 1871.

Title VII prohibits all discrimination, including that based on sex, in employment. Title IX provides that "no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to, discrimination under any educational program or activity receiving federal financial assistance." Although Title VII and Title IX specifically cover discrimination, sexual harassment is held to be a form of discrimination because it interferes with the victim's ability to work or receive an education based on his or her sex.

Section 1983 does not contain any explicit rights or prohibitions as do Title VII and Title IX. Rather, it provides a remedy when an identifiable civil right is violated. Typically, Section 1983 is used when a school employee has had sexual relations with a student and school personnel did not adequately investigate when concerns were made known to them. Liability may also arise if school officials investigate but fail to take actions which deter further harassment.

The liability is based on the fact that courts have determined that students have a civil right to bodily integrity. A school employee who abuses his or her position of trust by engaging in sexual relations with a student violates that right. Section 1983 also has been used in some employment cases.

As with all civil rights violations, the liability can be great. Schools can be held liable for compensatory damages related to physical contact, psychological damage, physical injury, lost wages, lost educational opportunities, and many others. In addition, they can be liable for punitive damages and for attorneys' fees. There are numerous cases discussing school districts' actions regarding sexual harassment. The biggest lesson to be learned from these cases is that schools must be prepared for sexual harassment and must take immediate and effective action when a claim arises. The most important message for school boards is: take action now so that your schools are prepared to prevent sexual harassment and to effectively react to it when it occurs.

Simply punishing the offender after harassment occurs is not enough. Schools must take action to prevent harassment before it occurs. The first line of defense against harassment in all its forms is to assume nothing. Making assumptions about who is likely to be harassed or where or how harassment occurs only leaves opportunities for harassment to go unchecked.

Policy

The first action the school board must take is to implement a comprehensive sexual harassment policy. Not just employees, but everyone who comes on school grounds, including employees, students, parents, volunteers and all visitors should be covered by language that prohibits their involvement in sexual harassment and language that protects them against harassment.

However, a policy prohibiting sexual harassment is totally inadequate if it provides no enforcement mechanisms. Therefore, a complaint procedure and an effective investigation procedure must be instituted so that harassment can be weeded out and eliminated.

Schools already are required by the Illinois Human Rights Act to have sexual harassment policies regarding employees in place. Policies should be re-examined periodically in light of additional case law that may have been decided since they were originally approved. In addition, school districts have been held liable for sexual harassment that occurs outside of the employment relationship, especially in cases where students are harassed. Therefore, schools must have policies in place covering students and others as well. Most of the components of an employee sexual harassment policy can be applied to a policy covering students and others, but some amendments are needed to cover the differences between students and employees.

Non-employee sexual harassment policies need to be tailored to the characteristics, needs and peculiarities of your school district. For additional guidelines, see "Student Sexual Harassment Policy Guidelines," on page 16.

In addition to a policy, a procedure must be established providing for thorough and effective investigation of any sexual harassment complaint. For guidelines, see "Investigating Harassment Complaints," on page 18.

The final step is to ensure that the harassment policies, complaint procedures and investigation procedures are made known to staff, students, and others who enter school property. The sexual harassment policy should be printed in employee and student handbooks. Harassment should be included in the offenses which will subject employees or students to discipline. The complaint procedure should also be printed in those handbooks and displayed where other important notices are posted. Students need to be educated as to what sexual harassment is, that such activity is improper, and that students do not have to be the victims of such behavior.

Finally, if an investigation determines that harassment occurred, or if the findings are inconclusive, schools must take action which will deter future harassment. The harasser must be told in no uncertain terms that harassment will not be tolerated and that he or she will be disciplined if it occurs again. Whether additional action is taken, and the extent of such action, depends on the circumstances of each case, but can include discharge, expulsion and criminal charges. At the very least, the harasser should receive a verbal reprimand.

Whatever the action taken, the harasser and not the victim must be required to suffer the consequences. For instance, moving the victim but not the harasser to a different school is not a legitimate response. Remember, the action taken must deter not only the harasser, but other potential harassers as well.

Hopefully, your school district will never have to contend with a charge of sexual harassment. But given the seriousness of such complaints, and the potential impact on a community, all school boards should be fully prepared to respond if it should happen.

Alan M. Mullins is an attorney with the Chicago firm of Ancel, Glink, Diamond, Cope & Bush, P.C. He can be reached at 312/782-7606.

Student sexual harassment policy guidelines

Following are some guidelines for establishing student sexual harassment policies.

1) All policies should include a definition of sexual harassment including examples that are understandable by children at all age levels in the district's schools. All students must be aware that there is a mechanism in place to protect them from harassment. Do not assume that children of any age are too young to be the victims of harassment.

2) It should be specifically stated that sexual harassment of students by anyone on school grounds or by any school employee at any time is prohibited. The policy should also prohibit the sexual harassment of anyone on school grounds.

3) The policy should refer to victims and harassers in neutral terms. It should not limit the characteristics of victims and harassers in any way, such as by their sex, age, sexual orientation, marital status or position in the school district. A school board must be open to the possibility that any person on school grounds, regardless of status, may be a victim or harasser. To ignore that possibility increases the chances that harassment will occur and not be discovered. In addition, mentioning some characteristics but not others sends a message that some people are not covered by the policy.

4) Victims of harassing conduct should be advised to inform the harasser that the conduct is objectionable and unwelcome.

5) The policy should make it clear that action, including discipline, will be taken against perpetrators of harassment.

6) It also should be made clear that retaliation for a harassment complaint will not be tolerated and also will lead to discipline. In addition, it should be stated that an employee or student will not suffer any consequences from the school district for making a good faith complaint.

7) A complaint process must be established. Care must be taken in designating the person to whom students can make complaints so that complaints are not lost because students were afraid or intimidated to talk. At the least, a second person should be designated in case the first one is the object of the complaint. Appointing a person of each sex to receive complaints also should be considered.

8) The policy should establish time limits in which various actions taken by school personnel are to be completed. Time limits not only insure that complaints are responded to in a timely manner, but they also advise the complaining party and the accused of what to expect.

9) School staff must report all suspected incidents in which a staff member has had sexual relations with a student to the Department of Children and Family Services and to the building principal or superintendent. A staff person or persons should be designated to coordinate such investigations and to work with any outside agencies involved.

10) It must be remembered that allegations of harassment can unfairly hurt the reputation and standing of the accused if the accusations are not true. Therefore, measures should be taken to protect the reputation of the accused until it is determined that harassment occurred. The policy should specify which individuals will be advised of harassment allegations. Any dissemination of information to unauthorized people should be subject to discipline. The policy should also provide that materials related to the complaint will not be placed in any personnel or student file unless the investigation determines that the harassment occurred.

Every school district needs to have in place written procedures for investigating harassment claims. The procedures should provide that:

1) No determination regarding a complaint will be made until the investigation process has been completed. All complaints or allegations of sexual harassment should be investigated in accordance with the procedure, no matter how improbable or offensive the allegations may be. Of course, the intensity or duration of the investigation will differ among cases, but the basic steps, such as interviewing the complaining party, the victim if different, witnesses and the accused should be followed in all cases.

2) The victim of the harassment and the complaining party, if not the victim, will be interviewed in all cases. Do not interview a student victim in the presence of the accused harasser. Any other people having relevant information should also be interviewed. The alleged harasser will be advised of the complaint and interviewed in all cases, except those referred to DCFS or some law enforcement agency. In those cases, the accused will not be made aware of the complaint or interviewed by school officials until the outside agency's investigation is complete.

3) The policy or procedure should designate who will conduct investigations of complaints. This can be done by an individual or a team of two or three depending on the extent of the alleged harassment and the number of victims. A lead investigator should be named if there is a team.

4) A written investigation report should be prepared in all instances. It should discuss the course of the investigation and the evidence that was obtained.

5) The procedures should require that a finding be made after the investigation is complete. Someone, usually the principal or superintendent, should be designated to make the findings. The available findings should be limited, such as (1) harassment occurred, (2) harassment did not occur, or (3) there is inconclusive evidence as to whether harassment occurred. This will ensure consistency among findings.

6) A copy of the investigation report should be made available to the victim, the complaining party if different (such as a parent complaining on behalf of a child), and the accused.

7) A process should be provided for the victim, complaining party or accused to appeal the findings. The other parties should be notified of any appeal and given an opportunity to present their position. The policy must designate a person who is to consider the appeal. The policy may provide that further investigation will be conducted upon an appeal.

8) Some process must be provided for follow-up after an investigation is complete. If it is determined that harassment occurred, an investigation must be made to ensure that it has stopped. Do not assume that it has stopped because the harasser was warned and the victim has not complained again. If the harassment continues, the victim may feel that making a complaint is a waste of time. In addition, a follow-up investigation or contact must be made whenever there is inconclusive evidence to make a finding. In these cases, it is possible that harassment did occur but there was insufficient proof and it also is possible that harassment continues.

Follow-up is essential whenever a staff member is alleged to have had an improper relationship with a student. It is possible that the relationship is consensual, and in such cases, it is not uncommon for a student to continue the relationship and deny its existence.

There is no rule of thumb as to how long investigations last. Many factors are involved, including the number of incidents involved, the age of the victim, the number of people to be interviewed, and the extent to which the charges are corroborated or not. Whether the allegations are investigated by DCFS or a law enforcement agency also affects the duration of the investigation, because the school district should wait for the finding of the outside investigation.

Whatever the circumstances, investigations must begin promptly and must be conducted thoroughly. Even so, there will be times when a conclusion cannot be drawn because neither the complainant nor the accused is completely believable. School personnel should remain vigilant in those circumstances. In addition, the failure of a law enforcement agency to file charges only means that the agency feels it has insufficient evidence to meet its burden of proof in a criminal case. It does not necessarily mean there is insufficient evidence for the school to take action against an employee or student.