Hostile work environment is a category of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments of 1972 (Title IX). Title VII protects employees from discrimination on the basis of race, sex, religion, color, and national origin, and it applies to employers with 15 or more employees. Title VII is enforced by the Equal Employment Opportunity Commission (EEOC). Title IX applies to recipients of federal aid and is enforced by the Office for Civil Rights (OCR) in the U.S. Department of Education. This entry describes the application of the law on hostile work environment in the context of higher education.
Hostile work environment can apply to any of the protected classes under Title VII, which covers race, sex, religion, color, and national origin. Regulations from the EEOC, published in 1980, supplied definitions for harassment on the basis of sex:
Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when (1) submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is sued as a basis for employment affecting such individual, (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. (29 C.F.R. § 1604.11(a))
As case law developed under Title VII, the first two categories of behaviors in the regulations became identified with quid pro quo (literally, “this for that”) sexual harassment, while the third category became identified with hostile work environment sexual harassment. Quid pro quo sexual harassment occurs when an agent for an employer uses supervisory status or power to induce a subordinate to grant sexual favors in exchange for employment benefits.
Through a series of cases, especially the U.S. Supreme Court’s judgment in Harris v. Forklift Systems (1993), hostile work environment sexual harassment has required the showing of four elements: severity, pervasiveness, subjectively unwelcome behavior, and objectively unwelcome behavior. Severity and pervasiveness operate together, so that a severe action, occurring only once, could foster a claim. A single minor action, such as utterance of an epithet or asking someone for a date, no matter how subjectively unwelcome to the target of the speech, would not be sufficient to create a hostile work environment. However, repeated utterances of an epithet or requests for a date can become objectionable or irritating enough that a reasonable person would objectively view it as unwelcome behavior. To a certain extent, the legal theories defining hostile work environment sexual harassment under Title VII have become applicable to claims under Title IX as well.
Title VII Cases
The theory of hostile work environment was first advanced in Rogers v. EEOC (1971), which involved a claim based on race. Hostile work environment theory was subsequently applied for the first time for religious discrimination in Compston v. Borden (1976), for national origin discrimination in Cariddi v. Kansas City Chiefs Football Club (1977), and finally for sexual discrimination in Henson v. Dundee (1982). Hostile work environment discrimination law can theoretically apply to all five protected classes under Title VII, but its application is apparently more fully developed for the protected class of sex, with more cases before the Supreme Court. Consequently, the expression “hostile work environment” in higher education tends to apply largely to the protected class of sex.
The first hostile work environment sexual discrimination case to reach the Supreme Court was Meritor Savings Bank FSB v. Vinson (1986). In Meritor, the Supreme Court rejected the utility of an inquiry into whether sex-related behavior had been voluntarily entered into by the victim; instead, the court required an inquiry into whether the alleged sexual advances were “unwelcome.” The Court further emphasized that the “totality of the circumstances” must be used in determining whether sexual harassment exists, thus permitting the entry of details such as manner of dress and sex-related behaviors of the victim into the record.
In Harris v. Forklift Systems (1993), the Supreme Court held that it was not necessary to show psychological injury to support a claim of hostile work environment. On the other hand, merely offensive jokes or comments would be insufficient for proving a hostile work environment. The Court suggested that lower courts follow what it called a middle path between allowing an action for any conduct that is merely offensive and allowing an action only when the conduct causes a tangible psychological injury. In Oncale v. Sundowner Offshore Services (1998), the Court ruled that nothing in Title VII necessarily bars a claim of discrimination because of sex merely because the plaintiff and the defendant are of the same sex. In Oncale, the Supreme Court also stressed that sexual harassment law was not intended to create a code of civility in the workplace.
In Faragher v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998), the Supreme Court addressed the question of what legal standard to apply for imputing liability against an employer when a supervisory employee is the harasser. In these companion cases, the Court established that employers could be strictly liable for the misuse of supervisory authority by their employees. However, the Court also balanced this standard by providing a means for employers to raise an affirmative defense against liability. Absent tangible employment actions such as demotions, discharges, or other adverse employment actions, employers may not be liable when they exercised reasonable care to prevent and promptly correct any sexually harassing behavior and when victimized employees unreasonably failed to avail themselves of any preventive or corrective opportunities provided by their employers.
Title IX Cases
Grove City College had the distinction of being a postsecondary institution that wanted to retain its sectarian focus and remain independent from governmental control, and thus it did not directly accept federal funds. In Grove City College v. Bell (1984), the Supreme Court upheld a requirement that college officials must sign a form ensuring compliance with Title IX as a condition for students to receive federally sponsored Basic Educational Opportunity Grants. However, the Court limited the application of Title IX to the financial assistance program and refused to extend its application across all campus activities. In reversing this rule, Congress passed the Civil Rights Restoration Act of 1988, which expanded the remedy for noncompliance under Title IX (as well as Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975) to include systemwide withdrawal of federal funds.
Franklin v. Gwinnett County Public Schools (1992), the first of a trio of K–12 cases, involved teacher-to-student sexual harassment. Although not dealing directly with hostile work environment, these cases are reviewed because of the profound impact they had on the law dealing with sexual harassment in the workplace, including educational institutions. Here the Supreme Court reasoned that money damages were available under Title IX on the ground that a statute without a remedy would otherwise have served little purpose. The Court revisited teacher-to-student sexual harassment in Gebser v. Lago Vista Independent School District (1998), determining that a school board that receives federal funds cannot be liable for damages for teacher-to-student sexual harassment, unless officials with the authority to stop the harassment had actual notice of it and were deliberately indifferent to the behavior of the harasser.
In a case involving student-to-student sexual harassment, Davis v. Monroe County Board of Education (1999), the Supreme Court noted that school boards are liable under Title IX only if their officials are deliberately indifferent to sexual harassment of which they have actual knowledge, and if the harassment is so severe, pervasive, and objectively offensive that it deprives the victim of equal educational opportunities.
Finally, in Jackson v. Birmingham Board of Education (2005), the Supreme Court was of the opinion that a male basketball coach for a girls’ team had a private right of action against a school board under Title IX for retaliation, because he had alleged discrimination against the girls’ basketball team.
Application to Colleges and Universities
Even though most hostile work environment sexual harassment cases brought to the Supreme Court under Title VII involve private employers and most cases brought under Title IX originated in K–12 education, the principles from case law under both acts extend to universities and colleges.
Both Burlington Industries and Faragher instruct that colleges and universities may avoid strict liability under Title VII and raise an affirmative defense against claims that do not involve loss of tangible employment benefits. The first thing that college and university officials must do is to be vigilant while providing reasonable care to prevent and promptly correct any behavior that might be sexually harassing. The second thing that officials must do is to make certain that they have in place an effective sexual harassment policy.
Most colleges and universities have sexual harassment policies with comparable components: a commitment to fight discrimination on the basis of sex; a definition of sexual harassment, usually based on the 1980 EEOC regulations; identification of an official who stands ready to receive complaints; procedures for dealing with the complaint; and an explanation of the potential penalties (usually stated broadly, up to and including termination of employment) for violating the policy. While such policies are necessary for raising an affirmative defense to hostile work environment sex discrimination claims, they can be problematic in their administrative implementation. For example, the EEOC regulations use a definition of sexual harassment focusing upon the victim’s viewpoint and the unwanted nature of the perpetrator’s behavior. This definition is broader than that fashioned subsequently by the Supreme Court. Consequently, based on the language in many sexual harassment policies in institutions of higher learning, a first-year student who finds a painting of naked figures in an art history class to be “unwelcome” could allege sexual harassment under the policy and demand an adverse employment action against the faculty member. Insofar as a policy definition probably does not include the elements of both subjective and objective offense, it may not comport with the definition of hostile work environment sexual harassment recognized by the courts. Accordingly, a university administrative proceeding against the faculty member may find that the sexual harassment policy, not the faculty member, created a significant problem due to its lack of clarity.
Title IX also provides potential claims against universities and colleges for hostile work environment sexual harassment. The private right of action under Title IX supplied by Franklin allows a plaintiff to proceed directly against the body corporate of the university or college upon a showing of deliberate indifference to the alleged discrimination. In contrast, proceeding against the body corporate of the university or college under Title VII is problematic in light of the affirmative defense provided by Burlington Industries and Faragher, namely, that officials acted reasonably and an employee did not seek to use institutional remedies. Thus, a Title VII claim, coupled with an allegation of a violation of civil rights under Section 1983, would usually be more likely to provide recovery against an individual postsecondary administrator than against the body corporate of the university or college.
Under Davis, student-to-student harassment is actionable when university or college officials know or should have known about the harassment and were deliberately indifferent to it. Further, the harassment must occur under the operations of a recipient of federal funds, and the harassment must take place in a context subject to the recipient’s control. This last provision, under Davis, provides an additional challenge for colleges and universities. There is probably no greater area of control exerted by a university or college over students than in the area of interscholastic athletics. Consequently, student-to-student hostile work environment sexual harassment involving studentathletes is an area where university and college administrators must exert extraordinary oversight.
David L. Dagley
See also Sexual Harassment, Peer-to-Peer; Sexual Harassment, Quid Pro Quo; Sexual Harassment, Same-Sex; Sexual Harassment of Students by Faculty Members
Dagley, D. L. (1998). When does protected speech become sexual discrimination? Education Law Reporter, 129, 565–581.
DeMitchell, T. A. (2000). Peer sexual harassment: More than teasing. Davis v. Monroe County Board of Education. International Journal of Educational Reform, 9, 180–186.
Miles, A., Dagley, D., & Russo, C. (1999). University student-athlete conduct codes after Davis v. Monroe County Board of Education. Education Law Reporter, 138, 969–981.
Age Discrimination Act, 42 U.S.C. §§ 6101 et seq.
Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87 (8th Cir. 1977).
Civil Rights Act of 1871, Section 1983, 42 U.S.C. § 1983.
Civil Rights Restoration Act of 1988, 20 U.S.C. § 1687.
Compston v. Borden, 424 F. Supp. 157 (S.D. Ohio 1976).
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), on remand, 206 F.3d 1377 (11th Cir. 2000).
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
Grove City College v. Bell, 465 U.S. 555 (1984).
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982).
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
Rehabilitation Act of 1973, Section 504, 29 U.S.C. §§ 794 et seq.
Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
Title VII of the Civil Rights Act of 1964, 78 Stat. 257, as amended, 86 Stat. 109, 42 U.S.C. § 2000e.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.