Sexual Harassment In Athletic Programs: Legal Issues and Strategies for Prevention
By Lee Green
Background
Sexual harassment lawsuits involving schools or athletic programs are shocking, and the facts presented in such cases offend every precept of the mission of interscholastic athletics and secondary education. Media coverage of these lawsuits is so extensive as to make utterly implausible any lack-of-awareness arguments by school districts regarding the scope of the problem. And yet the pervasiveness of the sexual harassment claims continues to grow, with the rate of both criminal prosecutions and civil suit filings increasing each year.
Sexual harassment in athletic programs - employee against employee, athletic personnel against student-athlete, and student-athlete against student-athlete - has become one of the greatest sports liability concerns for schools and one with which every institution must be proactive in developing effective and legally sufficient policies. Consider the following sets of facts from 10 recent high-profile sexual harassment cases (case names, each of which includes the name of the school, have been omitted to protect the not-so-innocent).
Case One: A middle-aged, male, high school football coach who was also a physical education teacher at the school repeatedly engaged in sexual intercourse with a 15-year-old female student, often on school grounds during the school day. A criminal prosecution for statutory rape was accompanied by civil lawsuits against the school district, various district and school administrators, and the high school's athletic director.
Case Two: A female physical education instructor repeatedly engaged in oral sex with an 18-year-old male student-athlete both on school grounds and in her car off school grounds. A criminal prosecution for violation of a state law banning teacher-student liaisons was accompanied by civil lawsuits against the school district, various district and school administrators, the high school's athletic director, and the school's physical education department chairperson.
Case Three: A young, male, assistant high school football coach who was a first-year teacher at the school began dating an 18-year-old cheerleader who was a student at the school. Their relationship ended after four months and the civil suit that ensued was not filed until a year later. Named as defendants in the suit were the school district, various district and school administrators, the high school's athletic director, and the school's head football coach.
Case Four: A young, male, high school tennis coach repeatedly called one of his female players at home and engaged her in conversations of a highly personal nature. On several occasions he asked her out on dates and on two occasions he gave her gifts, the first a diamond pendant and the second an article of lingerie. Although the student declined her coach's requests for dates and no physical contact ever occurred between the two, she was successful in her civil lawsuit against all the usual suspects for hostile environment sexual harassment.
Case Five: A male coach of a girls' soccer team often gave the 16-year-old female plaintiff a ride home from practice during which time he would question her about her boyfriend, her love life and her sex life. Although no physical contact ever occurred between the two, she was successful in her hostile environment civil lawsuit.
Case Six: A female coach of a girls' field hockey team repeatedly had one-on-one, intimate discussions with team members regarding problems that she-the-coach was having in her personal relationships and inquiring about the personal relationships of her players, including details regarding their love and sex lives.
Case Seven: A male coach of a girl's basketball team consistently used profane, sexually explicit, and sexually derogatory language during practice, often making sexually derogatory comments directed at a specific player. Despite arguing in his own defense that most of his coaching experience was in boys' basketball where he believed the use of such language was appropriate, the female plaintiffs were successful with their hostile environment suit.
Case Eight: A male football coach, over a number of years and towards a number of different girls at the school, repeatedly made comments such as "you really look sexy in that outfit" and "you really should be a model." He also repeatedly made comments regarding the specific physical attributes of the girls.
Case Nine: A male athletic trainer, over a number of years and towards a number of different female student-athletes, repeatedly made non-medical comments regarding the appearance of the girls' legs, breasts, buttocks and other physical attributes.
Case Ten: A male coach of a girls' basketball team, at an unchaperoned, out-of-town tournament, asked the 17-year-old female plaintiff to meet with him after hours to discuss the upcoming game. He took her to the hotel bar, ordered an alcoholic drink for her (which she refused), asked her to dance (which she refused), and asked her to accompany him to his hotel room (which she refused).
Legal Standards:
There are two forms of sexual harassment. The first is quid pro quo harassment, where the pressure by the offending party on the victim to engage in sexual behavior is derived either from threats by the defendant to impose tangible detriments if the plaintiff refuses or from promises by the defendant of tangible benefits if the plaintiff complies. In a school or athletics situation, quid pro quo sexual harassment cases typically involve allegations that the defendant made threats or promises regarding grades, treatment at school, being cut from a team, playing time on a team, or treatment as a team member.
The second form of sexual harassment is hostile environment harassment, where the offending party has perpetrated upon the victim unwelcome words or actions of a sexual nature in such a severe and pervasive manner so as to have created a hostile or abusive environment. Note that there are four elements in a hostile environment case - 1) unwelcomeness; 2) words or actions of a sexual nature; 3) severe and pervasive conduct; and 4) creation of a hostile, intimidating, or abusive environment.
In school or athletics sexual harassment suits, courts have consistently ruled that unwelcomeness is not a required component of the plaintiff's burden of proof because true consent is not possible by a student to the offending behavior of a teacher or coach, especially in situations where the student is a minor. Therefore, hostile environment sexual harassment will be considered to have occurred whenever there are words or actions of a sexual nature, perpetrated in a severe or pervasive manner, which result in the creation of the abusive environment.
Hostile environment claims form the basis for the vast majority of all school and athletics sexual harassment lawsuits. Therefore, an effective anti-sexual harassment policy should mandate that teachers and athletics personnel strictly avoid all "words or actions of a sexual nature." This prohibition should include not only explicit sexual behavior and physical contact, but also sexually explicit language, off-color jokes, excessively personal conversations, excessively personal gifts, comments on physical appearance, flirting, and any other interaction that might in any way be construed inappropriately.
U.S. Supreme Court Sexual Harassment Cases
In Franklin v. Gwinnett County Board of Education, the Supreme Court held that the anti-gender-discrimination provisions of Title IX provide a private cause of action for money damages by victims of sexual harassment in an educational setting. The case provides a strong statutory basis for civil lawsuits that can be used to supplement the common law protections of quid pro quo and hostile environment sexual harassment claims.
In Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, the Court concluded that employers will be strictly liable for sexual harassment perpetrated by employees against other employees unless the employer had an effective sexual harassment reporting policy in place and the victim failed to access the protections of that policy. The case essentially mandates that employers, including school districts, develop and implement anti-sexual harassment policies.
In Gebser v. Lago Vista Independent School District, the Court ruled that schools and school personnel will be strictly liable for teacher-student sexual harassment when personnel in a position to take remedial action have knowledge that the harassment is occurring and exhibit deliberate indifference by failing to take preventative action. The case essentially mandates the reporting, investigation and resolution of all suspected teacher-student or athletic personnel-student incidents of harassment.
In Davis v. Monroe County Board of Education, the Court ruled that schools and school personnel will be strictly liable for student-student sexual harassment when school personnel in a position to take remedial action have knowledge that the harassment is occurring and exhibit deliberate indifference by failing to take preventative action. The case essentially mandates the reporting, investigation and resolution of all instances of suspected peer harassment.
In Oncale v. Sundowner Offshore Services, the Court ruled that sexual harassment does not have to be perpetrated by someone of the opposite gender in order to be actionable. The case affirms the validity of same-sex harassment claims, thus bringing the rapidly expanding athletics-related problem of hazing into the purview of sexual harassment law.
Policy Recommendations
The vast majority of the sexual harassment lawsuits related to schools and athletic programs are hostile environment cases and one of the keys to preventing the occurrence of hostile environment harassment is to ensure that school and athletics personnel strictly avoid "words or actions of a sexual nature." The following recommendations incorporate the decisions from numerous court cases as to the types of behavior that are legally considered to fit within the definition of "words or actions of a sexual nature."
Ten Recommendations:
1. Teachers and athletics personnel should never use sexually explicit language or tell sexually explicit or off-color jokes in the presence of students or student-athletes.
2. Teachers and athletics personnel should never display sexually explicit pictures or materials on school property and should never show such materials to students or student-athletes under any circumstances.
3. Teachers and athletics personnel should avoid engaging in excessively personal conversations, both in-person and on the phone, with students or student-athletes.
4. Teachers and athletics personnel should avoid sending excessively personal letters, cards, gifts or e-mail messages to students or student-athletes.
5. Teachers and athletics personnel should avoid commenting on the physical appearance of students or student-athletes, including manner of attire and specific physical attributes.
6. Teachers and athletics personnel should avoid, to the greatest extent possible, physical contact with or the touching of students and student-athletes.
7. Teachers and athletics personnel should avoid giving students or student-athletes rides home alone or even in groups where eventually only one student or student-athlete remains alone in the car with the adult.
8. Teachers and athletics personnel should avoid off-school-property, one-on-one meetings alone with students or student-athletes, especially in the home of the student or student-athlete or in the home of the teacher or athletics personnel.
9. Teachers and athletics personnel should never plan or take unchaperoned school or athletics-related trips and, even on properly chaperoned trips, they should exercise a greater degree of caution and propriety regarding interaction with students and student-athletes on the trip.
10. Teachers and athletics personnel should never date students under any circumstances. Issues of power differential, consent, credibility and appearance of impropriety make such relationships untenable.
Lee Green is an attorney and a professor at Baker (Kansas) University, where he teaches courses in sports law, business law and constitutional law. He may be contacted at Lee.Green@BakerU.Edu.
