Indiana Law Review Teachers' Sexual Harassment Claims Based on Student Conduct: Do Special Education Teachers Waive Their Right to A Harassment-Free Workplace? David Thompson* Introduction Title Vn of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual's sex.* Title VII imposes sexual harassment liability on employers that subject their employees to a "hostile work environment."^ A hostile work environment (HWE) is a workplace that is "permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"^ Although the conduct of a supervisor or co-worker normally creates a HWE, the conduct of non-employees can also create a HWE.^ In HWE cases, employers are liable if they know about the harassment and fail to take remedial action in a timely manner.^ In June 2007, in Mongelli v. Red Clay Consolidated School District Board ofEducation,^ the District Court of Delaware faced the novel issue of whether a school board may be held liable for a Title Vn HWE sexual harassment claim based on the harassing conduct of a special education student.^ In Mongelli, a fourteen-year-old mentally-impaired student, over the course of two weeks, abused his special education teacher, both verbally and physically.^ The teacher, Ms. Mongelli, alleged that she repeatedly complained of the student's conduct through written reports she filed with the principal's office and through verbal complaints she made to the assistant principal.^ She further alleged that the school did not take any remedial action during the two-week period over which * J.D. Candidate, 2009, Indiana University School of Law—Indianapolis; B.A., 2004, DePauw University, Greencastle, Indiana. 1. 42U.S.C. §2000e-2(a)(l)(2006). 2. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). 3. Id. at 21 (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)). 4. See Lori A. Tetreault, Annotation, Liability ofEmployer, Under Title VII ofCivil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer, Client, or Patron, 163 A.L.R. Fed. 445 (2000). 5. See id.; see also EEOC Guidelines, 29 C.F.R. § 1604.1 1(e) (2008) ("An employer may also be responsible for the acts of non-employees . . . where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action."). 6. 491 F. Supp. 2d 467 (D. Del. 2007). 7. Mat 476-78. 8. /^. at 471-73. 9. /J. at 471-72. 476 INDIANA LAW REVIEW [Vol. 42:475 the incidents occurred. ^^ The court in Mongelli held that, although schools can be liable for a HWE sexual harassment claim created by the conduct of a special education student, Mongelli' s claim failed because the student's conduct was not "severe or pervasive" enough to meet the requirements for a Title VII claim. ^^ The Mongelli decision has important implications for the thousands of special education teachers across the nation. Over 600,000 children between the ages of six and twenty-one classified as mentally retarded were educated by the U.S. Department of Education under the Individuals with Disabilities Education Act during the 2000-01 school year.^^ The number soars to a staggering 5,775,000 children when other disabilities are also considered. ^^ If schools are not held liable for HWEs created by the acts of special education students, the thousands of teachers responsible for educating these students essentially forfeit a portion of their right to be free from sexual harassment in the workplace. This Note explores the parameters of school liability for HWE sexual harassment claims brought by teachers. Part I addresses the background of Title Vn sexual harassment claims. Part II takes an in-depth look at the factual background of the Mongelli case as well as the Mongelli court's holdings. Part m analyzes the Mongelli court's holdings. It argues that the Mongelli court's preliminary holdings are valid and that the grant of summary judgment is defensible in light of existing case law and the imprecise nature of the test courts must apply in Title Vn HWE cases. Part IV discusses the future of Title Vn sexual harassment claims brought by teachers who allege sexual harassment by students. This section suggests measures that schools should take to ensure that they are not liable for the harassing conduct of students and will conclude by discussing the appropriate analysis courts should employ when analyzing similar claims. I. Title vn Sexual Harassment Background "Congress enacted Title Vn of the Civil Rights Act of 1964 to protect employees from discrimination in the workplace." ^"^ Title Vn makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."^^ Although Title VII's language clearly prohibited sex discrimination, it did not "define sexual harassment as discrimination, nor did its legislative 10. Mat 473. IL Mat 480. 12. Twenty-Fourth Annual Report to Congress on the Implementation of the Individuals WITHDiSABiLiTffiS EducationAct 20 (2002), av«//«W^ izr http://www.ed.gov/about/ reports/annual/osep/2002/section-ii.pdf. 13. Id. 14. Jeffrey S. Lyons, Be Prepared: Unsuspecting Employers Are Vulnerable for Tide VII Sexual Harassment Environment Claims, 37 U.S.F. L. Rev. 467, 467 (2003) (citations omitted). 15. 42 U.S.C. § 2000e-2(a) (2006). 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 477 history offer guidance as to whether sexual harassment was a form of discrimination."^^ As a resuh of this ambiguity, courts did not begin to "recognize sexual harassment as a type of sex discrimination prohibited by Title VE" until the late 1970s.^^ "The first type of Title VII sexual harassment claims courts recognized" was Quid pro quo (QPQ) sexual harassment. ^^ QPQ sexual harassment occurs when an employer conditions "an employee's future employment status on their response to the sexual advances" of the employer.'^ The most obvious example ofQPQ sexual harassment is when a supervisor promises a subordinate employee a promotion in exchange for sexual activities or threatens the employee that refusing to engage in sexual activity will result in termination. ^° The second type of sexual harassment claim courts recognized was HWE sexual harassment.^^ Hostile work environment was first recognized in the form of racial discrimination.^^ Li Rogers v. EEOC,^^ the Fifth Circuit "reasoned that Title VII prohibited discriminatory working environments that could destroy the emotional and psychological stability of minority employees; thus, statutory protection extended beyond economic or tangible discrimination."^'^ Although Rogers did not apply to sexual discrimination,^^ after the Rogers decision the Equal Employment Opportunity Commission (EEOC) "issued guidelines declaring hostile work environment sexual harassment a violation ofTitle Vn."^^ These guidelines "essentially created a new form of Title VE action"^^ now known as HWE sexual harassment.^^ Although the EEOC guidelines were 16. Sarah Pahnke Reisert, Let's Talk about Sex Baby: Lyle v. Wamer Brothers Television Productions and the California Court of Appeal's Creative Necessity Defense to Hostile Work Environment Sexual Harassment, 1 5 Am. U.J. GENDER SOC. POL'Y & L. 1 1 1 , 1 1 5 (2006) (citations omitted). 17. Kelly Ann Cahill, Hooters: Should There Be an Assumption of Risk Defense to Some Hostile Work Environment Sexual Harassment Claims?, 48 VAlSfD. L. REV. 1 107, 1 1 10 (1995); see also Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert, denied, 406 U.S. 957 (1972). 18. Cahill, supra note 17, at 1 1 10. 19. Id. 20. See Robert J. Aalberts & Lome H. Seidman, Sexual Harassment ofEmployees by Non- employees: When Does the Employer Become Liable?, 21 Pepp. L. Rev. 447, 455 (1994). 21. See Lyons, supra note 14, at 470; Tetreault, supra note 4, § 2[a]. 22. Reisert, supra note 16, at 115. 23. 454 F.2d 234 (5th Cir. 1971), superseded by statute on other grounds, 42 U.S.C. § 2000e-5 (2006), as recognized in EEOC v. Shell Oil Co., 466 U.S. 54, 63 (1984). 24. Reisert, 5M/7ra note 16, at 115. 25. Id. 26. Id. (citing EEOC Guidelines on Discrimination Because ofSex, 29C.F.R. §§ 1604.1 1(a)- (f) (2008)). The EEOC guidelines, which were issued in 1980, state, in pertinent part, that conduct which has "the purpose or effect ofunreasonably interfering with an individual ' s work performance or creating an intimidating, hostile, or offensive working environment," is a violation of Title VIL 27. Lyons, supra note 14, at 470. 28. Id. 478 INDIANA LAW REVIEW [Vol. 42:475 adopted in 1980, it was not until 1986 that the Supreme Court recognized HWE sexual harassment.^^ A. The Supreme Court Recognizes, Defines, and Refines HWE Claims In four landmark decisions, the United States Supreme Court established a framework for HWE sexual harassment cases.^^ L Meritor Savings Bank, F.S.B. v. Vinson.^^—The Supreme Court first recognized a Title Vn HWE sexual harassment claim in Meritor Savings Bank, F.S.B. V. Vinson. In Meritor, a female bank teller alleged that throughout her four-year employment at the defendant bank her supervisor fondled her, repeatedly demanded sex fromher (to which she consented on multiple occasions out of "fear of losing herjob"),^^ and raped her on several occasions.^^ The bank argued that the plaintiff did not have an actionable claim because Title Vn required a tangible loss of an economic character, and did not protect "'purely psychological aspects of the workplace environment.'"^"^ The Court rejected this argument.^^ Justice Rehnquist, writing for the Court, opined that "Title Vn is not limited to 'economic' or 'tangible' discrimination. The phrase 'terms, conditions, or privileges ofemployment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment."^^ The Court then acknowledged that the EEOC guidelines allowed HWE claims and also extended the reasoning from Rogers to the sexual context of Meritor' s case.^^ The Court concluded by stating that, "a plaintiff may establish a violation of Title Vn by proving that discrimination based on sex has created a hostile or abusive work environment."^^ Although Meritor was a victory for victims of workplace sexual harassment in that the Court officially recognized HWE claims, the Court also placed a very significant limitation on these claims by requiring the harassment to be "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment."^^ The "severe or pervasive" requirement is a difficult one to satisfy; often, it is the hurdle 29. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 73 (1986). 30. An affirmative defense to HWE sexual harassment claims is actually set forth in the sister cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City ofBoca /?«ron, 524 U.S. 775(1998). 31. 477 U.S. 57 (1986). 32. /J. at 60. 33. Id. 34. Id. at 64 (quoting Briefof Petitioner at 30-3 1 , 34, Meritor Sav. Bank, FSB v. Vinson, No. 84-1979 (U.S. Dec. 11, 1985)). 35. Id. 36. Id. (citations omitted). 37. /fif. at 65-66. 38. Mat 66. 39. Id. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)) (emphasis added). 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 479 plaintiffs cannot overcome when trying to defeat a motion for summary judgment."^^ Although the Meritor Court required that harassment be severe or pervasive, "the opinion fell short of providing any clear guidance as to what would be considered severe or pervasive enough to create such an environment.'"^^ For example, the Court did not address whether the conduct must be severe enough to cause the plaintiff psychological injuries. The Court also failed to specify whether the environment must be hostile according to a reasonable person standard or simply according to the plaintiff s subjective view of the environment. The Court, however, answered these questions in the following cases. 2. Harris v. Forklift Systems, Inc."^^—Li Harris, a female manager for an equipment rental company alleged that the company's male president regularly insulted her due to her gender"^^ and made sexual innuendos about her clothing."^"^ After Harris complained about the president's conduct, the president promised the conduct would stop."^^ Instead, Harris was compelled to quit when the president accused her, in front of her coworkers, of promising to have sex with a customer."^^ The district court ruled for the defendants because the president's comments were not severe enough to interfere with the work performance of "[a] reasonable woman manager under like circumstances'"*^ and Harris herself was not "so offended that she suffered injury.'"*^ After the Sixth Circuit affirmed,"^^ the Supreme Court granted certiorari to resolve a circuit split about whether, in HWE sexual harassment claims, the harassing conduct "must 'seriously affect an employee's psychological well- being' or lead the plaintiff to 'suffer injury. "'^° As one commentator noted, the "facts of Harris placed the issue squarely before the Court to determine how the 40. See e.g.. Van Horn v. Specialized Support Servs., Inc., 241 F. Supp. 2d 994, 1008-09 (S.D. Iowa 2003) (severe or pervasive element not met where a mentally impaired patient touched the plaintiffs breasts on two occasions, pinched her inner thigh on another, and made sexually suggestive comments). 41. Lyons, supra note 14, at 471-72. 42. 510 U.S. 17(1993). 43. Id. at 19. Harris alleged that the president made statements such as: "You're a woman, what do you know," "We need a man as the rental manager," and at least once referred to her as a "dumb ass woman." Id. It is interesting to note that this factual scenario would never, by today's standards, create a HWE. However, the Court granted certiorari because it wanted to resolve a circuit split. Id. at 20. 44. Id. ai\9. 45. Id. 46. Id. 47. Id. at 20 (quoting Harris v. Forklift Sys., Inc., No. 3-89-0557, 1991 WL 487444, at *7 (M.D. Tenn. Feb. 4, 1991)). 48. Id. 49. Harris v. Forklift Sys., Inc., 976 F.2d 733 (6th Cir. 1992). 50. Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993) (internal punctuation omitted). 480 INDIANA LAW REVIEW [Vol. 42:475 'severe and pervasive' analysis should be applied."^^ In resolving the circuit split, the Harris Court held that harassing conduct in a HWE claim does not have to cause the plaintiff psychological injury.^^ More importantly, the Court added the requirement that the environment created by the conduct must be perceived, both objectively and subjectively, as hostile or abusive.^^ The Court stated: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title Vn violation.^"^ Thus, under this requirement, the plaintiff herself^^ must actually perceive the environment as abusive and the plaintiff must show that a reasonable person would also find the environment hostile or abusive.^^ After acknowledging that the objective and subjective test was not, and could not be, "mathematically precise,"^^ the Harris Court stated that when determining whether an environment is hostile, courts must look at all the circumstances.^^ The Court went on to give examples of factors that the lower courts should consider, namely "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee' s work performance."^^ These four factors—frequency, severity, physical threats versus offensive 51. Lyons, supra note 14, at 472. 52. //arm, 510 U.S. at 22. 53. /J. at 21-22. 54. Id. 55. Although the victim ofsexual harassment is typically female, the subjective and objective test applies to both males and females. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) ("Title VII's prohibition of discrimination . . . protects men as well as women.") (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983)). 56. See Crist v. Focus Homes, Inc., 122 F.3d 1 107, 1111 (8th Cir. 1997) ("[C]onduct must be sufficiently severe or pervasive to create an environment that a reasonable person would find hostile or abusive."). 57. Harris, 510 U.S. at 22. Interestingly, Justice Scalia filed a concurring opinion in which he complained that the standard adopted by the majority was unclear and gave little guidance to juries; he was, however, forced to join the majority because he could not find a valid alternative "to the course the Court today has taken." Id. at 24 (Scalia, J., concurring). 58. Id. at 23 (emphasis added). This approach is known as the "totality of the circumstances" approach. This name comes from the EEOC Guidelines, which state: "In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 C.F.R. § 1604.11(b) (2008). 59. //arm, 510 U.S. at 23. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 481 utterances, and unreasonable interference with work performance—although not exhaustive, comprise the majority of the analysis that courts consider when determining whether the severe or pervasive threshold has been met.^° The Court further refined the totality of the circumstances test in Oncale v. Sundowner Offshore Services, Inc.^^ 3. Oncale v. Sundowner Offshore Services, Inc.—In Oncale, the plaintiff, a homosexual male, alleged that he was harassed by his male coworkers.^^ The lower courts ruled that Oncale did not have an actionable Title VII claim because his alleged harassers were also male.^^ Like in Harris, the Court granted certiorari to resolve a split among the circuit courts.^"^ The Oncale Court held that plaintiffs could bring HWE sexual harassment claims based on harassing conduct from coworkers of the same sex.^^ Writing for a unanimous Court, Justice Scalia was careful to emphasize that this holding did not expand Title Vn into a "general civility code."^^ The Court insisted that it avoided such a result because of the crucial importance the Court has always given to the Harris requirement that the environment be objectively hostile.^^ The Oncale Court continued, further defining Harris's objective severity of harassment requirement: We have emphasized, moreover, that the objective severity of harassment should bejudged from the perspective of a reasonable person in the plaintiffs position, considering "all the circumstances." In same- sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectation, and relationships which are not fully captured by a simple 60. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (using only the Harris factors); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (applying the four factors but noting that they were not exhaustive); Crist v. Focus Homes, Inc., 122 F.3d 1 107, 1111 (8th Cir. 1997) (considering the Harris factors and the plaintiffs' expectations given their choice of employment); Van Horn v. Specialized Support Servs., Inc., 241 F. Supp. 2d 994, 1008 (S.D. Iowa 2003) (relying on the Harris factors). 61. 523 U.S. 75 (1998). 62. Id. at 77. Besides being subjected to regular verbal abuse, Oncale was physically assaulted by two coworkers, one of whom threatened to rape him. Id. 63. Id. 64. See id. at 79 (noting that "state and federal courts have taken a bewildering variety of stances" on the issue of same sex HWE sexual harassment claims). 65. Id. 66. /J. at 81. 67. Id. The Court viewed the important emphasis it gives to the objectively hostile requirement as "sufficient to ensure that courts andjuries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory 'conditions of employment.'" Id. 482 INDIANA LAW REVIEW [Vol. 42:475 recitation of the words used or the physical acts performed.^^ Two very important conclusions necessarily result from the Court's statement. First, the objective hostility standard used in HWE claims looks at the reasonable person in the plaintiff's position.^^ Thus, if a female construction worker brings an HWE sexual harassment claim, a court must determine whether the alleged conduct would be sufficiently hostile to the reasonable female construction worker, who will almost certainly differ from the reasonable female librarian.^^ Second, courts must look at the social context surrounding alleged events.^^ Courts must examine the work environment in which conduct occurs. Returning to the construction example, off-color jokes and vulgar language might be the norm for a construction site,^^ but these activities would probably never be tolerated, let alone be considered normal, in a library. 4. Ellerth and Faragher.—In the companion cases of Burlington Industries, Inc. V. Ellerth'^ and Faragher v. City of Boca Raton^^ the Supreme Court established an affirmative defense for employers in Title Vn HWE claims. Before recognizing the defense, the Court established that in Title Vn claims, agency principles apply. Employers may be held vicariously liable for the discriminatory conduct of their supervisors.^^ In order to "square" this holding with ''Meritor' s holding that an employer is not 'automatically' liable"^^ for the discriminator)' acts of its supervisors, the Court formulated an affirmative defense that allowed employers to avoid liability in certain situations.^^ To invoke the defense, an employer must show, by a preponderance of the evidence, that the following two elements are met: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm 68. Id. at 81-82 (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993)) (emphasis added). 69. Id. 70. See Ann C. McGinley, Harassment ofSex(y) Workers: Applying Title VII to Sexualized Industries, 18 YALE J.L. & FEMINISM 65, 101 (2006) (comparing the severe and pervasive requirement for blackjack dealers, exotic dancers, and legal prostitutes). 71. Onca/£, 523U.S. at81. 72. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995). In Gross, a female truck driver for a construction company alleged that her supervisor's repeated use of vulgarity and profanity created a HWE. Id. at 1536. The Gross court recognized that in the "real world of construction work, profanity and vulgarity are not perceived as hostile or abusive. Indelicate forms of expression are accepted or endured as normal human behavior." Id. at 1537. 73. 524 U.S. 742(1998). 74. 524 U.S. 775(1998). 75. See id. at 807; see also Ellerth, 524 U.S. at 765. 76. Faragher, 524 U.S. at 804. 77. /^. at 807. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 483 otherwise."^^ To meet the first prong of the test, the employer must show that it "took reasonable measures to educate its employees on properconduct (prevention) and to monitor its workplace to address complaints by its employees (correction). "^^ The Court did not give employers specific direction regarding prong two, but the Court stated that an employer would normally satisfy the second element by showing that an employee failed to use "any complaintprocedure provided by the employer."^^ B. The Proper Test Todayfor HWE Claims These landmark cases make it possible to formulate a comprehensive test for Title Vn sexual harassment claims. Although there are several different analyses used by the U.S. circuit courts,^^ most courts (including five circuit courts)^^ use a test similar to the one established in Henson v. City ofDundee}^ The Henson elements require the plaintiff to establish that (1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual . . . harassment; (3) the harassment complained of was based on employee's sex . . . ; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) existence of employer liability.^'* The fourth element incorporates the objective and subjective requirement from Harris. In other words, the fourth element requires that the harassment be sufficiently severe or pervasive, both objectively and subjectively, to have altered a term, condition, or privilege of employment.^^ Since Oncale, it is also necessary to examine the social context of the workplace when determining whether the objective aspect of the severe and pervasive element is met.^^ Additionally, the fifth element incorporates the affirmative defense set forth in Faragher^'^ and Ellerth}^ Today, the proper test requires a court to determine whether, under the totality of the circumstances (including the social context), a plaintiff has demonstrated that she suffered unwelcome harassment that was "sufficiently 78. Id. 79. Lyons, supra note 14, at 476. 80. EllertK 524 U.S. at 765. 81. See Debra S. Katz, Harassment in the Workplace, SM097 A.L.I.-A.B.A. 121, 134-36 (2007) (describing the different tests used by the circuit courts). 82. Specifically, the Third, Fourth, Sixth, Ninth, and Eleventh Circuits. Id. at 133. 83. 682 F.2d 897 (1 1th Cir. 1982). 84. Katz, supra note 81, at 133. 85. See McGinley, supra note 70, at 101. 86. Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 81 (1998); accord McGinley, supra note 70, at 101. 87. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). 88. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). 484 INDIANA LAW REVIEW [Vol. 42:475 severe or pervasive by objective and subjective measures to alter the terms or conditions of employment."^^ C. Employer Liabilityfor Acts ofNon-employees Each of the preceding Supreme Court cases dealt with discriminatory conduct by supervisors or co-workers. The Supreme Court has never explicitly held that employers are liable for HWEs created by non-employees.^° However, the EEOC guidelines state that "[a]n employer may ... be responsible for the acts of non-employees . . . where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action."^^ The non-employees responsible for creating a HWE are often customers or clients,^^ but have also been patients^^ or students.^"^ In the overwhelming majority ofjurisdictions, courts have adhered to the EEOC guidelines'^ and have allowed HWE sexual harassment claims based on the conduct of non- employees.'^ Because the Supreme Court has not officially recognized HWE claims based on the acts of non-employees, the Court has also not addressed an affirmative defense to such claims.'^ The affirmative defense established in Faragher and Ellerth only applied to HWEs created by the conduct of the plaintiffs 89. McGinley, supra note 70, at 101. 90. See generally Tetreault, supra note 4. Tetreault's annotation, which lists all of the "federal cases which considered whether an employer may be held liable for the sexually harassing acts of nonemployees," does not list any Supreme Court cases that address the issue. Additionally, not a single case that addresses employer liability for the acts of non-employees cites to authority from the Supreme Court. 91. 29 C.F.R. § 1604.11(e) (2008). 92. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 (10th Cir. 1998); Oliver v. Sheraton Tunica Corp., No. CIV. A. 398CV203-D-A, 2000 WL 303444, at *1 (N.D. Miss. Mar. 8, 2000). 93. See, e.g., Crist v. Focus Homes, Inc., 122 F.3d 1 107, 1 108 (8th Cir. 1997). 94. See, e.g.. Pedes v. N.Y. City Bd. of Educ, No. 97 CV 7109 (ARR), 2001 WL 1328921, at *1 (E.D.N.Y. Aug. 6, 2001). 95. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). The EEOC guidelines, '"while not controlling upon the courts by reason of their authority, do constitute a body of experience and informedjudgment to which courts and litigants may properly resort for guidance. '" Id. at 65 (quoting General Electric Co. v. Gilbert, 429 U.S. 125, 141-42 (1976)). 96. See generally Tetreault, supra note 4; see also Mongelli v. Red Clay Consol. Sch. Dist. Bd. of Educ, 491 F. Supp. 2d 467, 476-77 (D. Del. 2007) (noting that four circuit courts have followed the EEOC guidelines and citing approximately twenty decisions holding that employers face liability for the harassing conduct of non-employees). But cf. Ulmer v. Bob Watson Chevrolet, Inc., No. 97 C 7460, 1999 WL 1101332 (N.D. 111. Nov. 29, 1999) (denying a HWE sexual harassment claim because the alleged harasser was not employed by the defendant). 97. The Supreme Court does not need to determine whether an affirmative defense to a claim exists when it has not recognized the claim itself. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 485 supervisor(s).^^ It would, however, "appear reasonable ... to expect that an employer's affirmative defense in a nonemployee situation might be similarly altered."^^ Once again, most courts follow the EEOC Guidelines and impose liability only if the employer "knows or should have known of the conduct and fails to take immediate and appropriate corrective action." *°^ II. MoNGELLi: The District Court Decision In January 2004, Ms. Mongelli signed a six-month employment contract for a teaching position with the Red Clay Consolidated School District. ^^^ Even though she had no experience teaching special education students, Mongelli was "assigned to John Dickinson High School ... as a teacher for ninth grade special education students."^^^ "Almost immediately after she began teaching . . . [she] began having problems with one of her students, JW, who was fourteen years old."^°^ JW suffered from educable mental retardation as well as psychiatric problems that were not associated with the mental retardation. ^^'^ Over the next two months, JW consistently engaged in activity that Ms. Mongelli found offensive. ^^^ Mongelli alleged that she repeatedly complained of JW's conduct both by filing written reports with the principal's office and by making verbal complaints to the assistant principal. ^^^ The written reports (called SBRs) filed by Ms. Mongelli detailed the following conduct: 1) April 26, 2004: "JW continues to use very inappropriate language. . . . As [Mongelli] leaned over to help a student who was seated, JW got out of his seat and came up behind her. He grabbed [Mongelli] forcefully and proceeded to 'hump' her." 2) May 3, 2004: "When [Mongelli] was teaching the class, JW looked directly at her breasts and stated: "Your [nipples] are hard." At the end of the period, [JW] grabbed [Mongelli' s] arm forcefully and pulled her close to his body. He stated, 'You're a b[it]ch, but I mean that in a good way.'" 98. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). 99. Tetreault, supra note 4, § 2[b]. 100. 29 C.F.R. § 1604.1 1(e) (2008). 101. Mongelli, 491 F. Supp. 2d at 471. 102. Id. 103. Id. 104. Telephone Interview with Joseph Bernstein, Attorney for Ms. Mongelli (Jan. 1 1 , 2008). 105. Mongelli, 491 F. Supp. 2d at 472-73. 106. Id. At the outset, it is important to note that, because the court was ruling on the defendant's motion for summary judgment, it was required to "'view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.'" Id. at 475 (quoting Pa. Coal Ass'n v. Babbit, 63 F.3d 23 1 , 236 (3d. Cir. 1995)). Therefore, in this case, the court had to assume that all of Ms. Mongelli' s allegations were true. 486 INDIANA LAW REVIEW [Vol. 42:475 3) May 4, 2004: "At the end of the period, [JW] sat on top of the desk and stared directly at [Mongelli]. [JW] opened his legs wide and pretended to be having sex. He moved the lower portion of his body up and down quite rapidly. He said: 'Oh, oh, aah.' He made 'sucking' noises with his mouth and pretended he was breathing heavily." 4) May 5, 2004: "As [Mongelli] walked into the classroom . . . , [JW] grabbed her arm very forcefully and refused to let go. He said, 'Let' s do the tango.' He pulled [Mongelli] close to his body and moved [her] forward. When [she] told him to let go of her arm, he said: '[You're] a b[it]ch. Chill.' Then, he stated: 'Do you have sex?' and 'Who do you have sex with?'" 5) May 5, 2004: "When [Mongelli] told [JW] to sit down, he threatened: 'My mom is going to take care of you. She's going to rock you.' [Mongelli] wrote out [a referral to the time out room] and gave it to JW. He yelled, 'I ain't f[uc]king going anywhere. You're a f[uc]king bitch.' He tore the form in half. [Mongelli] called the main office for an administrator. [Principal Chad] Carmack . . . came to the classroom and removed [JW]. Mr. Carmack sent [JW] back to [Mongelli' s] classroom before the end of the period." 6) May 6, 2004: "[JW] got out of his seat, came up to [Mongelli' s] desk, and stared directly at [her]. Then, [JW] sang a rap song stating, 'How's your p[uss]y?' He sang the [word] 'p[uss]y' several times during his rap song. When [Mongelli] told him to go to [the time out room], he continued singing even louder. After [JW] sang, he made 'sucking' noses with his mouth." 7) May 7, 2004: "[JW] got out of his seat and walked over to [Mongelli]. Then, [he] sang a rap song stating, 'Ms. Mongelli gives h[ea]d.' He sang this four times. As he was singing, [JW] pointed to his p[eni]s three times."^^^ These allegations constitute the only conduct the court considered in Mongelli' s claim. ^^« Mongelli alleged that she placed each of the SBRs in the principal's mailbox "on the day it was written." '^^ The school, however, did not take any disciplinary action in response to the reports until after Mongelli filed the last report on May 107. Id. at 472-73 (internal footnotes omitted). 108. The court failed to include four SBRs that concerned JW's conduct prior to April 26, 2004. The prior incidents consisted of vulgar language similar to that contained in the complaints the court did consider and did not include any physically threatening act. First Amended Complaint \ 15, Mongelli, 491 F. Supp. 2d 467 (D. Del. 2007) (No. 05-359 SLR). 109. Mongelli, 491 F. Supp. 2d at 473 n.lO. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 487 1}^^ On May 8, 2004, JW was "permanently removed from [Mongelli's] classroom and suspended from school for five days."^'* After a conmiittee evaluatedJWs conduct and determined that "JWs behavior was a manifestation of his disability,"^ ^^ the assistant principal and JWs mother "mutually agreed that JW would remain home for the remainder of the school year.""^ On May 13, 2004, Mongelli agreed to a one year teaching contract with the school. ^^"^ Approximately one month later, as a result of the incidents Mongelli alleged, the Delaware State Police criminally chargedJW with "Unlawful Sexual Contact in the Third Degree, Sexual Harassment, and two counts of Offensive Touching (all of which are misdemeanors)."^ ^^ JW eventually entered into a plea bargain and pled guilty to "two counts of Offensive Touching and one count of Sexual Harassment."^ *^ Approximately one month after JW was criminally charged, Mongelli was fired, allegedly for complications with her teaching license.^ ^^ She then brought, inter alia, a Title Vn HWE sexual harassment claim against the school district and the board of education.'*^ Ultimately, the district court denied Mongelli's claim and granted the defendant school board's motion for summary judgment. ^^^ However, before reaching its decision, the Mongelli court had to make three preliminary determinations. A. The Mongelli Court's Preliminary Holdings First, the Mongelli court had to determine whether employers could be held liable for a HWE created by the conduct of a non-employee. ^^^ The court recognized that the "emerging trend" in federal courts was to allow such claims under Title Vn.^^^ Because the court could find "no reason to deviate" from the trend, it held that "employers may, under certain circumstances, be held liable for 110. Mat 474. 111. Id. 112. Id. (internal brackets and emphasis omitted). 113. Id. (citation omitted). 114. Id. 115. Id. 116. Plaintiffs Answering Brief in Opposition to Defendant's Motion for Summary Judgment at 6, Mongelli, 491 F. Supp. 2d. 467 (D. Del. 2007) (No. 05-359 SLR). 1 17. Mongelli, 491 F. Supp. 2d at 474. 118. Id. 119. /J. at 483. 120. Id. at 475-77. The Mongelli court actually framed the "first issue" as whether "a teacher . . . [could] sue the school district for which she works" based on the harassing conduct "allegedly committed by one of the teacher's students." Id. at 475. Answering this question required the court to first answer the question concerning employer liability for the acts of non-employees. Id. at 476- 77. 121. /^. at 476. The court pointed out that the First, Eighth, Ninth, and Tenth U.S. Circuit Courts of Appeal's decisional law had followed the EEOC guidelines, which allow these claims. 488 INDIANA LAW REVIEW [Vol. 42:475 sexual harassment suffered by their employees at the hands ofnon-employees."^^^ Second, the Mongelli court had to determine whether schools could be liable for a hostile work environment created by the harassing conduct of students against their teachers. ^^^ The court stated: [SJuch a scenario involves competing public interests, namely, a school' s duty to protect teachers from abusive students versus its obligation to teach those students how to conduct themselves in a socially acceptable way. Unlike cases involving abusive co-workers or customers, a school district cannot easily "terminate" a student or permanently ban him from the premises; instead, the district must attempt to deal with the abusive student using the limited tools and resources at its disposal. '^"^ Despite recognizing the difference between student-on-teacher harassment and non-employeeHWE sexual harassment claims involving customers, the Mongelli court held that, generally, schools can be liable for HWE "claims under Title Vn . . . [if the schools] fail to address teachers' claims of harassment by students. "^^^ Finally, the court examined whether a teacher could bring a Title Vn HWE claim "when the abuse is perpetrated by a special education student." ^^^ The court first discussed its concerns with allowing such a claim, noting that special education students are unique in that "school districts are obligated under federal law to teach [them]"*^^ and they "are prone to disruptive behavior by virtue of their disabilities."*^^ However, the court reasoned that prohibiting such claims would essentially "'immunize' schools from liability" *^^ whenever a special education student harassed a teacher, regardless of the circumstances or the severity of the harassment. *^^ Further, "[sjuch a blanket prohibition would do a disservice to teachers, who deserve a working environment free from abuse, and would provide schools with no incentive to remedy incidents of harassment in their special education classrooms."*^* Based on this reasoning, the Mongelli court determined that "while the requisite threshold of abuse will necessarily be higher than with students lacking developmental disabilities . . . harassment of teachers by special education students can constitute a hostile work environment for Title Vn purposes."*^^ In sum, the court held that Mongelli could bring a Title vn HWE sexual harassment claim against the school based on JW's conduct. 122. Mat 477. 123. Id. 124. Id. 125. Mat 478. 126. Id. 127. Id. 128. Id. 129. Id. 130. Id. 131. Id. 132. Id. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 489 B. The Mongelli Court Denies Mongelli 's Claim After clearing the path for Mongelli to bring her Title VII HWE claim, the court immediately proceeded to shoot it down. According to the court, Mongelli' s claim failed for two reasons. ^^^ First, the "severity of the conduct and the context in which it took place [were] not sufficient to satisfy Title VII's 'severe or pervasive' requirement. "^^"^ In making this determination, the court should have considered "'all the relevant circumstances surrounding the discriminatory conduct. '"^^^ However, the court only considered the "short period of time" over which the incidents occurred and that the school eventually removed JW from the plaintiffs classroom. '^^ Second, the court found that "[e]ven if JW's conduct were deemed to satisfy the 'severe or pervasive' requirement . . . [Mongelli] has failed to establish that a reasonable person in her situation would have been detrimentally affected by the objectionable conduct."'^^ According to the court, the record was insufficient to show where "the tolerance threshold of a reasonable special education teacher lies."'^^ In other words, the record failed to show what conduct a reasonable special education teacher would find hostile enough to alter the terms or conditions of employment. ^^^ Based on these findings, the Mongelli court granted the School Board's motion for summary judgment. ^"^^ in. Analysis OF THE Mo/vGELL/ Decision The Mongelli court was correct in each of its three preliminary holdings. In addition, the court was probably correct in its decision to grant summary judgment for the defendant school board. ^"^^ A. The Mongelli Court's Preliminary Holdings Are Valid The Mongelli court's preliminary holdings are valid because they are consistent with existing case law. 7. Employers May Be Held Liable for HWE's Created by the Conduct of Non-employees.—As discussed in Part I.C, the overwhelming majority of courts 133. /^. at 480-81. 134. /J. at 480. 135. Id. (quoting Arasteh v. MBNA Am. Bank, N.A, 146 F. Supp. 2d 476, 494-95 (D. Del 2001)). 136. Id. 137. Id. 138. /J. at 481. 139. Id. 140. Id. 141. This will, unfortunately, never be decided by an appellate court. Although Mongelli filed an appeal, the case was later settled in mediation for an undisclosed amount. Telephone Interview with Joseph Bernstein, Attorney for Ms. Mongelli (Jan. 11, 2008). 490 INDIANA LAW REVIEW [Vol. 42:475 have held that, in certain situations, Title Vn imposes liability upon employers for the harassing acts of non-employees. ^'^^ The court in Mongelli decided that there was "no reason to deviate from this trend." ^"^^ Even though the Supreme Court has not explicitly held that Title Vn imposes liability in these situations, ^"^ in the absence of the Court's direction to hold otherwise, the Mongelli court was correct in following the current weight of authority. 2. Title VII Imposes Liability on Schoolsfor HWEs Created by Student-on- Teacher Harassment.—Few courts have confronted the issue of school liability under Title Vn for student-on-teacher harassment. ^"^^ The Supreme Court has yet to address the issue^"^^ and scholarly commentary is noticeably lacking.^"^^ However, the few courts that have addressed the issue have unanimously found that Title Vn imposes liability on schools for student-on-teacher harassment. ^"^^ The court in Plaza-Torres v. Rey^"^^ recognized that the issue had never been expressly resolved, '^° but held that "student-on-teacher sexual harassment may be inferred from recent Title VII [and] Equal Protection . . . case law."^^^ The Rey court relied on two equal protection cases, Schroeder v. Hamilton School District^^^ and Lovell v. Comsewogue School District, ^^^ and a Title VII case, Peries v. New York City Board ofEducation .^^"^ Both Schroeder and Lovell involved students harassing a teacher based on the teacher's sexual orientation. ^^^ However, these claims were structured as Equal Protection claims because Title Vn does not "provide for a private right of action based on sexual orientation discrimination." ^^^ The courts in both Schroeder and Lovell held that plaintiffs could bring Equal Protection claims 142. See supra notes 92-96 and accompanying text. 143. Mongelli, 491 F. Supp. 2d at 477. 144. See supra note 90 and accompanying text. 145. See Plaza-Torres v. Rey, 376 F. Supp. 2d 171, 181 (D.P.R. 2005) (noting that only a "handful of cases" dealt with student-on-teacher harassment). 146. /£/. atl80. 147. The research for this Note produced a good deal of scholarly work focusing on teacher- on-student harassment or student-on-student harassment, but none concerning student-on-teacher harassment. 148. See Rey, 376 F. Supp. 2d at 1 80; Peries v. New York City Bd. of Educ, No. 97 CV 7 109 (ARR), 2001 WL 1328921 (E.D.N.Y. Aug. 6, 2001); accord Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002); Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 322 (E.D.N.Y. 2002). 149. 376 F. Supp. 2d 171 (D.P.R. 2005). 150. Mat 180. 151. Id. 152. 282 F.3d 946 (7th Cir. 2002). 153. 214 F. Supp. 2d 319 (E.D.N.Y. 2002). 154. No. 97 CV 7109 (ARR), 2001 WL 1328921 (E.D.N.Y. Aug. 6, 2001). 155. In both cases, a teacher alleged that students repeatedly referred to the teacher using homophobic slurs. See Schroeder, 282 F.3d at 948-49; Lovell 214 F. Supp. 2d at 321. 156. Schroeder,2%2V3ddX95\. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 491 based on student-on-teacher harassment. ^^^ The court in Schroeder also stated: "Were this a Title Vn case, the defendants could be liable to [the plaintiff] if he demonstrated that they knew he was being harassed and failed to take reasonable measures to try to prevent it."^^^ Finally, the court in Pedes, a. Title VII case based on student-on-teacher racial harassment, determined that schools should be held to the same standard that employers are held to in cases involving the harassing conduct of non- employees. ^^^ Therefore, according to the Peries court, schools could be held liable for HWEs created by student conduct. '^^ Although the Rey court recognized that these three cases were only persuasive authority, it concluded that "absent clear directive from the U.S. Supreme Court ... we will not limit the reach of Title VII liability by closing the door on student-on-teacher harassment. After all, Title VII seeks to eliminate all forms of sex discrimination in all work environments." ^^^ The Mongelli court's opinion is consistent with Rey and the cases on which the Rey court relied. Thus, the Mongelli court's holding that Title VII imposes liability on schools for HWEs created by student-on-teacher harassment seems sound. 3. Title VII Imposes Liability on Schools for HWEs Created by the Harassing Conduct of Special Education Students.—Courts have consistently held that Title VII imposes liability for the harassing conduct of mentally challenged non-employees. ^^^ For example, in Crist v. Focus Homes Inc.,^^^ three female plaintiffs ^^"^ were employed by Focus Homes, an organization that ran homes for individuals with developmental disabilities. ^^^ Focus Homes opened a new facility and hired the plaintiffs for the positions of manager, assistant manager, and lead program 157. Plaza-Torres v. Rey, 376 F. Supp. 2d 171, 182 (D.P.R. 2005). 158. Schroeder, 2S2F.3d at 951. 159. P£n>5, 2001 WL 1328921 at *6. 160. Id. 161. /?^j, 376 F. Supp. 2d at 182. 162. See Crist v. Focus Homes, Inc., 122 F.3d 1 107, 1 108 (8th Cir. 1997) (allowing Title VII claim based on conduct of severely impaired patient); Van Horn v. Specialized Support Services, Inc., 241 F. Supp. 2d 994, 1012-13 (S.D. Iowa 2003) (finding actionable a claim based on conduct of patient with Down syndrome); Peries, 2001 WL 1328921, at *6-7 (allowing claim where special education students harassed teacher because of his ethnicity); McGuire v. Virginia, 988 F. Supp. 980, 988 (W.D. Va. 1997) (allowing claim where incompetent adult son of board member repeatedly harassed a secretary); Salazar v. Diversified Paratransit, Inc., 1 1 Cal. Rptr. 3d 630, 637 (Ct. App. 2004) (allowing claim where developmentally disabled bus passenger repeatedly assaulted the bus driver). 163. 122 F.3d 1 107 (8th Cir. 1997). 164. Id. at 1 108. The individual plaintiffs were Crist, Miskowic, and Fibers. 165. Id. 492 INDIANA LAW REVIEW [Vol. 42:475 staff. ^^^ Throughout a four month span, a severely impaired patient (J.L.)^^^ repeatedly abused the plaintiffs, both physically and sexually. ^^^ For example, "over thirteen reports involved J.L.'s grabbing of the [plaintiffs'] breasts, buttocks, or genital areas." ^^^ Other incidents included J.L. openly masturbating and exposing himself to the plaintiffs. '^° Despite these egregious incidents, the district court granted the defendant's motion for summary judgment. ^^^ The district court found that because of the patient's severe impairments, "his conduct could not constitute sexual harassment." ^^^ Further, the district court determined that even if J.L.'s conduct did constitute sexual harassment, "Focus Homes could not be held responsible for his behavior because it could not control the behavior."^^^ The Eighth Circuit reversed because the district court wrongly focused on the patient's intent. '^"^ The court stated that "the actor who engages in physical conduct need not have the intent to create an abusive working environment. Rather, the focus of sexual harassment cases is primarily on the effect of the conduct." ^^^ Similarly, in the educational setting, courts should not focus on the ability of a special education student to form intent, but rather on the effect of the student's conduct. Penes v. New York City Board of Education^^^ is the only case beside Mongelli that specifically addressed whether schools may be held liable when special education students harass a teacher. In Peries, a special education teacher alleged that throughout a five year span, special education students repeatedly directed racist remarks at him.'^^ The court recognized that the case was unusual because the harassment came from students, '^^ but determined that the school could be held liable. ^^^ The Peries court reached its conclusion by focusing on the control the school had over the students rather than on the students' intent. ^^° As with the first two preliminary holdings, the Mongelli court's holding that 166. Id. 167. J.L. was only sixteen years old, but he was over six feet tall and weighed over two hundred pounds. Id. Despite his size, he only "fiinctioned at the level of a two-to-five-year-old." Id. 168. Id. 169. /d at 1109. 170. Id. 171. Mat 1110. 172. Id. 173. Id. 174. Mat 1110-11. 175. M. at nil. 176. No. 97 CV 7109 (ARR), 2001 WL 1328921 (E.D.N.Y. Aug. 6, 2001). 177. The students regularly taunted Peries, calling him names such as "fucking Hindu" and "Indian Shit." Mat* 1-2. 178. M. at*5. 179. M. at*6. 180. Id. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 493 Title Vn imposes liability on schools for the harassing conduct of special education students is correct because it is consistent with existing case law. B. The Mongelli Court's Grant ofSummary Judgment Was Probably Correct Part LB of this Note determined that the proper Title VII test was whether, under the totality of the circumstances, a plaintiff demonstrated that she suffered unwelcome harassment that was "sufficiently severe or pervasive by objective and subjective measures to alter"^^^ the terms, conditions, or privileges of employment, keeping in mind the social context of the workplace. ^^^ The Mongelli court determined that Mongelli did not meet the objective requirement because she "failed to establish that a reasonable person in her situation would have been detrimentally affected."^^^ To analyze whether the Mongelli court correctly decided that the objective element was not met, this section describes a theoretical test that determines whether the terms or conditions of employment were altered. ^^"^ It then examines existing case law to determine whether the Mongelli decision is consistent with decisions that have addressed similar issues. 7. The Terms and Conditions Approach.—In her article. Harassment of Sex{y) Workers: Applying Title VII to Sexualized Industries, ^^^ Ann McGinley noted that the Title Vn test requires the trier of fact to first determine the terms, conditions, or privileges of employment. ^^^ McGinley formulated a three question test "[t]o determine whether particular behavior constitutes a term or condition of employment." ^^^ The three questions are: 1) whether the behavior in question is necessary to the particular job performed by the employee; 2) whether it relates to the essence of the business in which the job is performed; and 3) whether the employer communicated to the employee, either implicitly or explicitly, that this behavior constituted part of the employee's job. ^^^ 181. McGinley, supra note 70, at 101. 182. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). 183. Mongelli v. Red Clay Consol. Sch. Dist. Bd. ofEduc, 491 F. Supp. 2d 467, 480 (D. Del. 2007). 184. McGinley, supra note 70, at 101. 185. Id. 186. Id. at 102. McGinley' s article focuses on women in sexualized professions, including exotic dancers and prostitutes (in legal brothels). Despite the difference in professions, the Title VII analysis remains the same. McGinley is concerned with the range of conduct exotic dancers must endure. Similarly, this Note examines the range of conduct special education teachers must endure. 187. Id. 188. Id. The three questions in McGinley' s test basically ask the same thing: should the employee have expected the harassing conduct? If a behavior is necessary to the particular job being performed, the employee may reasonably expect that she will be required to endure that behavior. Similarly, if the employer explicitly informs the employee that the behavior is part ofthe 494 INDIANA LAW REVIEW [Vol. 42:475 If the answer to all three questions is yes, then the behavior at issue is a term or condition of employment. ^^^ If the court answers yes to all three questions, the behavior in question cannot create a HWE because, by definition, a behavior that is a term or condition of employment cannot alter a term or condition of employment. ^^^ After the three question test determines the terms or conditions of employment, the trier of fact must then decide whether these terms or conditions were altered by the harassing conduct. ^^^ To illustrate, McGinley uses the example of exotic dancers. vShe explains that "a term or condition of employment for exotic dancers in gentlemen's clubs may require tolerating hooting and staring." *^^ Thus, for an exotic dancer, "being asked to endure hooting and staring would not alter the terms or conditions of employment, because tolerating this behavior is [already] a term or condition of employment." ^^^ Applying this test to Mongelli's case, the pertinent questions are whether enduring JW's conduct was necessary to teaching a ninth grade special education class, and whether the school board informed Mongelli that enduring this sort of behavior was part of her job. 2. Relevant Case Law.—The Mongelli court held that the threshold of abuse in Title Vn claims was necessarily higher for special education teachers. ^^"^ Therefore, the most helpful cases to determine whether Mongelli was decided correctly examine workplace environments where employees might be expected to tolerate some severe conduct. These cases can be separated into two categories: (1) the employee was regularly exposed to crude situations in the workplace, or (2) the employee knew that the harasser suffered from a condition that made the harasser more prone to engage in harassing conduct. a. Employees regularly exposed to crude behavior in the workplace.—In Gross V. Burggraf Construction Co.,^^^ the plaintiff, a female truck driver for a construction company, complained that her supervisor referred to her using derogatory terms and constantly used profanity. ^^^ The court in Gross stated that the proper Title Vn sexual harassment test is contextual and changes "depending job, then the employee will expect the behavior. 189. Id. 190. Id. 191. Id 192. Id. 193. Id. 194. Mongelli v. Red Clay Consol. Sch. Dist. Bd. ofEduc, 491 F. Supp. 2d 467, 478 (D. Del. 2007). 195. 53 F.3d 1531 (10th Cir. 1995). 196. Id. at 1536. Gross alleged that, on one occasion, her supervisor referred to her as a "cunt," and that on another, he stated to a co-worker, "Mark, sometimes don't you just want to smash a woman in the face?" Id. However, the court found that the evidence concerning the use of "cunt" was inadmissible. Id. at 1541. 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 495 upon the work environment"'^^ in which the conduct occurred. '^^ The court recognized that "[i]n the real world of construction work, profanity and vulgarity are not perceived as hostile or abusive." '^^ The court instead viewed profanity as a normal and accepted form of expression.^^^ According to the court, because construction workers must expect crude language in the workplace, the supervisor's vulgar comments were insufficient to create a HWE.^^' In Coolidge v. Consolidated City ofIndianapolis,^^^ the court was confronted with a peculiar factual scenario. The plaintiff, Coolidge, worked in a forensic crime lab.^^^ Coolidge' s former supervisor, who had been fired for sexually harassing Coolidge,^^"^ allegedly left two videotapes that contained pornography depicting necrophilia and other "disturbing images" where he knew Coolidge would find them.^^^ Coolidge found the tapes and became nauseous after viewing their content.^^^ The court held that the videotapes did not create a HWE because the "encounter was brief and not particularly severe."^^^ In its analysis of the tapes' severity, the court stated, "Crime Lab employees frequently worked with corpses, so pornography depicting necrophilia might not have the same shocking overtones there as it would in another setting."^^^ Thus, although the facts were markedly different, in both Coolidge and Gross, the courts found that offensive conduct did not alter the terms or conditions of employment where the plaintiffs were regularly exposed to similar behavior in the course of their work. Gross and Coolidge illustrate a deficiency in McGinley's three question terms and conditions test.^^^ McGinley's test fails to account for behaviors that, although not necessary for the particular job or business involved, are common in certain workplace environments. For example, in Gross, the court did not find that enduring profane language was necessary to performing the job of a truck driver.^ '^ The Gross court also did not find that profanity or vulgarity related to the essence of either construction work or truck driving.^' ' Rather, the Gross court merely found that profanity was a normal behavior in the construction 197. Mat 1538. 198. This is consistent with Oncale, which requires courts to examine the social context in which conduct takes place. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). 199. Gw55,53F.3datl537. 200. Id. 201. /^. at 1547. 202. 505 F.3d 731 (7th Cir. 2007). 203. Mat 732-33. 204. Mat 733. 205. Id. 206. Id. 207. M. at 734. 208. Id. 209. See McGinley, supra note 70, at 102. 210. Gross V. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995). 211. M. at 1537-38. 496 INDIANA LAW REVIEW [Vol. 42:475 industry.^ ^^ Similarly, the Coolidge court did not find that enduring pornographic materials depicting necrophilia was necessary to a forensic scientist's job.^^^ Thus, it would be appropriate to add an inquiry to McGinley's test: is a behavior so common in a workplace that exposure to such behavior would not sufficiently alter the terms or conditions of employment? If so, then exposure to such a behavior would not create a HWE. b. Employee is aware that individual is prone to harassing conduct.—The cases in this category involve plaintiffs who were allegedly harassed by mentally or psychiatrically impaired individuals. In each case, the court determined that a Title VII claim could theoretically be brought. The courts, however, differed on whether summary judgment was appropriate. (i) Plaintiff's claim survived summary judgment.—In Peries v. New York City Board ofEducation, ^^"^ discussed in Part in.A.3., the court allowed a special education teacher's Title VII HWE racial harassment claim to survive summary judgment even though the alleged conduct came from special education students.^'^ The court found that five years of "ongoing name-calling, mimicking, and other abuse" could have been "sufficiently severe or pervasive to alter the conditions" or terms of employment.^ ^^ Similarly, in Crist v. Focus Homes Inc.,^^^ also discussed in Part IQ.A.B, the court allowed the plaintiffs' claims even though the alleged harasser was severely mentally impaired.^^^ Recall that in Crist the patient repeatedly grabbed the employees' genital areas and masturbated in front of the employees.^^^ The court in Crist recognized that whether J.L. ' s conduct was hostile or abusive '*require[d] particularized consideration of the circumstances, including ... the [plaintiffs'] expectations given their choice ofemployment."^^° However, because of"factual disputes in the record,"^^^ the court found that whether J.L.'s conduct was abusive, under the circumstances, was an issue for a jury after a full trial.^^^ Finally, in Salazar v. Diversified Paratransit, Inc.,^^^ the plaintiff, a bus driver for a company that transported developmentally disabled individuals, brought a Title Vn HWE sexual harassment claim after a passenger with Down syndrome harassed her on several occasions and exposed his genitals to Salazar 212. Id. 213. Coolidge, 505 F.3datl34. 214. Peries v. N.Y. City Bd. ofEduc, No. 97 CV 7109 (ARR), 2001 WL 1328921 (E.D.N.Y. Aug. 6, 2001). 215. /^. at*6-7. 216. Id.at*6. 217. 122 F.3d 1 107 (8th Cir. 1997). 218. /^. at nil. 219. Mat 1109. 220. Mat 1111. 221. Id. 111. Id. 113. 1 1 Cal. Rptr. 3d 630 (Ct. App. 2004). 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 497 twice.^^"^ The second exposure incident culminated when the passenger attacked Salazar, attempting to touch "her all over and . . . put his hands under her shirt and shorts."^^^ The Salazar court held that a jury should have determined the case.^^^ (ii) Plaintiff's claim did not survive summaryjudgment.—The court in Van Horn V. Specialized Support Services, Inc}^^ found that the plaintiffs HWE claim failed because she could not establish the objective part of the severe or pervasive test.^^^ The plaintiff worked for a company that provided care for "mentally retarded and developmentally disabled clients."^^^ She specifically worked with KB, a twenty-one year old male with Down syndrome.^^° During the span of one month, KB touched Ms. Van Horn inappropriately on three separate occasions.^^^ In the first incident, KB briefly touched Ms. Van Horn's breasts.^^^ In the second, he pinched her inner thigh.^^^ In the third, KB pinched Ms. Van Horn's breast near the nipple.^^"^ KB also made a few sexually suggestive comments, the worst of which was "Betty wears pantyhose, I could take them off her, ooooh."^^^ Despite the three physical incidents, the Van Horn court found that the plaintiff s HWE claim failed because she did not sufficiently establish the objective part of the severe or pervasive test.^^^ The court emphasized that the alleged conduct "took place over a period of less than one month,"^^^ most of the conduct was mere utterances and not physically threatening or humiliating,^^^ and of the three physical incidents only the last (breast pinching) was objectively severe.^^^ 224. /J. at 633-34. 225. /t/. at 634. 226. Id. at 637-38. In Salazar, the case was initially tried to a jury, but at the "conclusion of Salazar' s case, the trial court granted nonsuit in favor of the defendants" on the grounds that employers were not liable for the acts of a client or customer. Id. at 634. The California Court of Appeals upheld the nonsuit. Id. However, the California legislature subsequently passed a bill to abrogate the appellate court's decision. Id. At the direction of the California Supreme Court, the court of appeals reexamined the case in light of the new legislation. Id. at 635. Upon reexamination, the Salazar court determined that the trial court's grant of nonsuit in favor of defendants was no longer proper. Id. at 637-38. 227. 241F.Supp. 2d 994 (S.D.Iowa 2003). 228. Id. at 1008-09. 229. Mat 998. 230. Id. at 999. 231. /J. at 1000-04. 232. Id. at 1000. 233. Id at 1002. 234. /6f. at 1004. 235. Id. at 1004. 236. Id. at 1008-09. 237. /^. at 1009. 238. Id at 1008. 239. Id. 498 INDIANA LAW REVIEW [Vol. 42:475 3. The Mongelli Court's Grant ofSummary Judgment Is Defensible.—The Mongelli court' s grant ofsummaryjudgment is defensible because it is consistent with the case law previously discussed. The factual scenario in Mongellf"^^ most closely resembles the factual scenario from Van Hom?"^^ In both cases, the alleged harassment took place in the span of less than one month, consisted mostly of offensive utterances, and did not consist of incidents that were overly physically threatening or humiliating. The Van Horn court found that the objective test was not met because the incidents occurred over a short period of time and only one incident was objectively hostile or abusive.^"^^ Similarly, in Mongelli, the incidents occurred over a short period of time and probably only one incident (JW humping Mongelli) was objectively severe.^"^^ Although the majority of cases discussed allowedTitle Vn claims based on the conduct of mentally impaired non-employees, the cases that survived summaryjudgment involved harassment that was either inherently more severe^"^ than JW's conduct or much more frequent than JW's conduct.^'*^ For example, the patient in Crist grabbed the plaintiffs' genital areas and repeatedly masturbated in front of the plaintiffs.^"^^ The harassment in Peries, although not physically threatening, occurred repeatedly for five years.^"^^ JW's conduct was not inherently severe and only occurred over a two week span.^"^^ Thus, as with the patient's conduct in Van Horn, JW's conduct "did not rise to the level of the conduct"^"^^ present in the cases that survived summary judgment. This conclusion is somewhat dissatisfying because Title Vn "seeks to eliminate all forms of sex discrimination in all work environments."^^^ Further, it would seem that conduct severe enough to incur criminal charges would be sufficiently severe for the purposes of Title VII. However, as the Harris court noted, the objectively severe and pervasive test is, "by its nature," mathematically imprecise.^^^ JW's conduct was probably severe enough that another court may have ruled differently. However, given the social context of 240. Mongelli v. Red Clay Consol. Sch. Dist. Bd. of Educ, 491 F. Supp. 2d 467 (D. Del. 2007). 241. Van Horn v. Specialized Support Servs., Inc., 241 F. Supp. 2d 994 (S.D. Iowa 2003). 242. Mat 1008. 243. See Mongelli, 491 F. Supp. 2d at 480. Furthermore, JW humping Mongelli is probably not as severe as KB pinching the plaintiffs breast in Van Horn. 244. See, e.g., Crist v. Focus Homes, Inc., 122 F.3d 1 107, 1 108-10 (8th Cir. 1997). 245. See, e.g., Peries v. N.Y. City Bd. of Educ, No. 97 CV 7109 (ARR), 2001 WL 1328921, at *6 (E.D.N.Y. Aug. 6, 2001). 246. Crist, 122F.3datll09. 247. Peries, 2001 WL 1328921 at *l-2. 248. Mongelli, 491 F. Supp. 2d at 472-73. 249. Van Horn v. Specialized Support Servs., Inc., 241 F. Supp. 2d 994, 1009 (S.D. Iowa 2003). 250. Plaza-Torres v. Rey, 376 F. Supp. 2d 171, 182 (D.P.R. 2005). 251. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 499 the special education classroom, and in light of the Van Horn decision, the Mongelli court's grant of summary judgment is defensible. IV. Suggestions for the Future Despite the lack of explicit instruction from the Supreme Court,^^^ the early case law indicates that teachers will be allowed to bring HWE claims based on the conduct of mentally impaired students.^^^ It also appears that schools will be allowed to use the Faragher affirmative defense against these claims.^^"^ Therefore, although the conduct in Mongelli was not sufficient to establish a HWE, it is important for schools to be aware of the potential for liability and the need to implement procedures to avoid it. A. Suggestionsfor Schools Because liability in HWE sexual harassment claims results when harassing conduct creates a HWE and the employer fails to take remedial action,^^^ schools should put programs in place to prevent harassment and to remedy any harassment that occurs.^^^ 1. Preventive Measures.—The "primary objective"^^^ of Title Vn is to prevent harassment."^^ The EEOC Guidelines stress that "[p]revention is the best tool for the elimination of sexual harassment."^^^ The Supreme Court recognized that Title VII' s preventive goals warranted an affirmative defense for employers that "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."^^^ As one commentator noted, the Supreme Court's message is clear: 'To avoid going to trial and losing a Title Vn sexual 252. See Rey, 376 F. Supp. 2d at 1 80 (U.S. Supreme Court has not addressed "school liability for sexual harassment suffered by a teacher on account of a student."). 253. See discussion supra Part III.A.3. 254. See Pedes v. N.Y. City Bd. of Educ, No. 97 CV 7109 (ARR), 2001 WL 1328921, at *6 (E.D.N.Y. Aug. 6, 2001) (stating that a teacher could prevail in his claim based on student harassment only if he could show "that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action"). 255. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1071-72 (10th Cir. 1998). In Lockard, the defendants had a sexual harassment policy in place that every employee was required to read. However, when male customers harassed a female employee, the manager did not take remedial action. As a result, the owner of the restaurant was held liable for the conduct of the non- employees. Id. at 1074-75. 256. Lyons, supra note 14, at 476. 257. Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). 258. Id.\ accord Sean Obermeyer, Note, Resolving the Catch 22: Franchisor Vicarious Liabilityfor Employee Sexual Harassment Claims Against Franchisees, 40 IND. L. REV 611, 636 (2007) (noting that Title VII's focus on prevention is correct because of the staggering costs of sexual harassment in the workplace). 259. 29 C.F.R. § 1604.11(f) (2008). 260. Faragher, 524 U.S. at 807. 500 INDIANA LAW REVIEW [Vol. 42:475 harassment suit, employers must take preventative measures.^^^ According to the EEOC, An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under [T]itle Vn, and developing methods to sensitize all concerned. ^^^ Therefore, schools should implement programs aimed at educating teachers about student harassment.^^^ These programs should, at a minimum, alert teachers to the types of behaviors the school does not consider harassment. The school should also design specific and clear procedures that teachers use to register complaints concerning student conduct. ^^ 2. Remedial Action.—A school district's remedial action plan should be designed so that the employee responsible for receiving teachers' complaints is also the employee responsible for taking remedial action. This design minimizes the risk that a lack of communication will result in school liability. For example, suppose a school district's policy concerning teachers' complaints is structured in the following manner: (1) All teachers shall file complaints of harassing conduct with the assistant principal. (2) The assistant principal shall relay all harassment complaints to the head principal. (3) The head principal shall inform the school board of complaints she deems to be significant. (4) The school board shall take remedial action as it deems appropriate. In this scenario, the school can be held liable in one of three ways. First, the assistant principal may fail to inform the principal of a complaint (and thus no action would be taken). Second, the principal might not inform the school board of a complaint, either out of carelessness, or because she determines that the complaint is minor in nature. Finally, the school board may fail to take action when it should have. This scenario may to lead to a devastating lack of communication—either from the assistant principal to the principal, or from the principal to the school board. On the other hand, if the employee who receives the complaints is also the individual responsible for taking remedial action, there is no chance that a lack in communication between employees will impose liability on the school. To 261. Lyons, supra note 14, at 489. 262. 29 C.F.R. § 1604.1 1(f) (2008). 263. See Lyons, supra note 14, at 476. 264. It is important for schools to establish clear complaint procedures so that the school can raise an affirmative defense in cases where a teacher fails to take advantage of the complaint procedures. See Burlington Indus., Inc. v. EUerth, 524 U.S. 742, 765 (1998). 2009] TEACHERS' SEXUAL HARASSMENT CLAIMS 501 illustrate, suppose instead that the school district's policy states: (1) All teachers shall file complaints of harassing conduct with the principal. (2) The principal shall take immediate action to remedy the situation. (3) The principal shall notify the board of any and all complaints as well as the action taken to remedy the situation. This scenario corrects the communication problems presented in the previous example. Because the principal is responsible for receiving the complaints and taking remedial action, the potential for error is limited to an error in the principal's discretion. B. Suggestionsfor Courts Courts should take teachers' claims of student-on-teacher sexual harassment seriously. Early court decisions extended Title Vn to cover student-on-teacher harassment.^^^ Therefore, a court should deny a school board's motion for summary judgment if a teacher can demonstrate that she suffered unwelcome harassment that was "sufficiently severe or pervasive by objective and subjective measures to alter"^^^ the terms, conditions, or privileges of employment. As in any other Title VII case, this demands examination of both the subjective and objective severity of behavior^^^ and the social context in which the behavior occurred.^^^ Conclusion The title of this Note questions whether special education teachers waive their right to be free from sexual harassment from students. Case law directly related to the topic is sparse, but the early decisions indicate that teachers may bring Title VII HWE sexual harassment claims against schools that know (or should have known) about students harassing teachers and did nothing to remedy the situation.^^^ Although special education teachers may be required to expect a heightened degree of abuse from their students,^^^ they should not completely forfeit their right to work in an environment free of sexual harassment.^^* 265. See discussion supra Part III.A.2. 266. McGinley, supra note 70, at 101. 267. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). 268. Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). 269. See discussion supra Part III.A.2-3. 270. See Mongelli v. Red Clay Consol. Sch. Dist. Bd. ofEduc, 491 F. Supp. 2d 467, 478 (D. Del. 2007). 27 1 . See id. (teachers deserve a working environment free from abuse).