On May 24, 1999, the United States Supreme Court decided yet another sexual harassment case -- Davis v. Monroe County Board of Education. Last summer, in Gebser v. Lago Vista Independent School District, the Supreme Court addressed the issue of sexual harassment of a student by a teacher, ruling that a recipient of federal education funds may be liable if it is deliberately indifferent to known acts of sexual harassment of a student by a teacher. In Davis, the Supreme Court addressed whether a recipient of federal education funds can be liable for one student’s harassment of another.
The Davis case involved a fifth-grade student who allegedly subjected a classmate to a prolonged pattern of sexual harassment at their public elementary school. The Court specifically noted that no prompt action was taken in response to the complaints of harassment, and that the School Board had not established any peer harassment policy or instructed its personnel on how to respond to such harassment. The Court ruled that recipients of federal education funds may be liable "where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority." The Court found that to establish liability, the harassment must be "so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." The Court noted, for example, that such unlawful harassment would arise if it prevents a student from using a computer lab.
In its ruling, the Court stated that certain conduct by students in school settings, such as banter, teasing and gender-specific conduct that is upsetting to students, will not rise to the level of unlawful harassment. The Court distinguished between conduct that occurs in schools rather than in the adult workplace, concluding that children may often interact in a way that would be unacceptable among adults.
Aside from its guidance for recipients of federal education funds, the Supreme Court’s most recent decision on sexual harassment admonishes employers that while certain conduct by students may be condoned in the school setting, similar conduct by adults in the adult workplace may be deemed inappropriate. This case is also yet another message from the Supreme Court for employers in general to take proper steps to prevent and promptly correct harassment, such as developing a sound harassment policy and providing training on avoiding and responding to harassment complaints.