If failure to report and properly deal with inappropriate sexual activity involving a minor can topple Joe Paterno – one of the greatest football icons of our time – think what it can do to mere mortals.
A recent case involving a student in the Kansas City School District illustrates the need to handle sex discrimination claims with great care, particularly when minors are involved. In Doe ex rel. Subia v. Kansas City, Missouri Sch. Dist a student climbed under the stall in the boys’ bathroom in the school and sexually harassed and assaulted another student. The student filed a lawsuit as “Doe” under the public accommodations provisions of the Missouri Human Rights Act (MHRA) alleging that the school administrators, as well as the teachers and paraprofessionals who were responsible for supervising were liable because they had knowledge of the perpetrator’s inappropriate and sexualized behavior and his aggressive tendencies. Despite knowledge of the perpetrator’s sexual tendencies the school personnel permitted the perpetrator to use the restroom at the same time as other male students. Consequently, the perpetrator had the opportunity to sexually harass and sexually assault Doe resulting in emotional distress in the form of anxiety, fear, and depression, among other manifestations.
The claim filed by Doe was dismissed for failure to state a cause of action and the matter was appealed to the Western District of the Missouri Court of Appeals, which reversed the trial courts decision. The Western District held that the school was a place of public accommodation and that the school could be liable under the MHRA for sex harassment. While liability is yet to be determined by a jury the School District now runs the risk of a large jury verdict and potential punitive damages particularly since plaintiff’s burden of proof is very low.
Along a similar line the United States Supreme Court in Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., held that a private damage suit may lie against a school board under Title IX for student-on-student harassment although the Court created a much higher burden of proof by requiring a showing of deliberate indifference by school officials. Both the Monroe County Board of Education and the Kansas City School District case have a common thread – employees and officials ignored the complaint and did not take any action. Even though these cases involve school districts they have enormous ramifications for other local government entities because many of its facilities are open to the public and in certain situations local government activities may resemble a school like setting such as classes or camps for young students. So what should local administrators and officials do?
First, you need to look at your policies to determine if they adequately deal with the sex harassment in the context of public accommodations. Employees need to be made aware of the potential liability and should be authorized to take action within established parameters when there is a problem. They should always report an incident up the chain of command and to the proper legal authorities. The policy should identify with clarity what incidents need to be reported to the police, child welfare authorities and other agencies. A check list needs to be prepared to make sure that each incident has been handled in accordance with the policy and that there has been appropriate follow-up.
If the Joe Paterno incident has taught us one thing: Don’t ignore the problem.