Title IX prohibits discrimination on the basis of sex in any educational program or activity. Sexual harassment is a form of prohibited sex discrimination.
- What is sexual harassment?
There are two types of sexual harassment. In quid pro quo harassment, a school employee conditions a student’s participation in a program or activity or bases an education decision on the student’s submission to requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual nature. A hostile environment is created when sexually harassing conduct, such as requests for sexual favors or physical or verbal conduct of a sexual nature, is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in a program or activity.
- In a school setting, who are the potential harassers?
A teacher or other school employee could harass a student. In addition, other students as well as third parties are potential harassers. Third parties would include people who are not employees or students at the school but may be legitimately on the school premises.
- Is it sexual harassment if a teacher touches a student?
Sexual harassment does not include legitimate nonsexual touching or other nonsexual conduct. For example, an elementary school teacher could give a consoling hug to a child who scraped his elbow; this is not considered sexual harassment. Similarly, a volleyball coach could hug a team member who scored the winning point. But, in some circumstances, nonsexual conduct may rise to the level of sexual harassment. For example, a volleyball coach hugging a player under inappropriate circumstances could create a hostile environment.
- Are both male and female students protected from being sexually harassed?
Both male and female students are protected under Title IX from sexual harassment engaged in by a school’s employees, other students, or third parties. Sexual harassment is prohibited even if the harasser and the person being harassed are members of the same sex.
- Are gay and lesbian students protected?
Title IX does not prohibit discrimination on the basis of sexual orientation.
- Is a school liable for sexual harassment by its employees?
It depends on the type of harassment and who does it. A school will always be liable for quid pro quo harassment if the harasser is a school employee in a position of authority. A school’s liability for hostile environment sexual harassment depends on whether the harassment is sufficiently severe or pervasive and whether the employee appeared to be acting on behalf of the school.
- Is a school liable if a student sexually harasses another student?
A school may be liable if: a hostile environment exists in the school’s programs or activities; the school knows or should have known of the harassment; and the school fails to take immediate and appropriate action to stop the harassment.
- What should a student do if he or she is or thinks he or she is being harassed?
The student or his or her parents should immediately report the incident. The student should be assured that no actions will be taken against the student for reporting the incident.
- Does the student’s name have to be disclosed to the harasser?
A student can request that his or her name not be disclosed. A student can also request that nothing be done about the harassment. The student should be informed that the student’s request might limit the school’s ability to respond to the complaint.
- What should a parent do if the school doesn’t respond to the student’s complaint?
The parent should consult an attorney.