Sexual Harassment and Retaliation: University May be Liable for Retaliation When Student Reports Sexual Harassment by a Professoria

There are occasions when employment discrimination and sexual harassment issues are found in cases where a plaintiff alleges discrimination or retaliation against educational institutions under Title IX. In Miller v. Kutztown University, 2013 U.S. Dist. LEXIS 173878 (December 11, 2013) (Stengel, J.), the court found that an educational institution can be liable for retaliation after a student complains that she is being sexually harassed by a university professor.

In Miller, the plaintiff, a former student alleges that a professor who served as her academic advisor at Kutztown University sexually harassed her. Plaintiff was an undergraduate honors student who was required to work closely with the professor and he was her instructor for much of her individualized coursework. The professor allegedly began to make uninvited and unwanted sexually offensive remarks and advances towards the plaintiff to which she objected but he continued his advances. On one occasion, the professor allegedly made several sexual comments about the plaintiff in the presence of his male colleagues. Additionally, during a meeting at his home, the professor allegedly groped and kissed the plaintiff without her consent and threatened to commit suicide if the plaintiff reported him and also threatened to sabotage her academic career if he did not give in to his sexual advances. The professor also allegedly frequently told the plaintiff she was “hot” and “sexy”, that “they were going to be lovers”, asked the plaintiff to have sex with him on several occasions and to stay at his home while his family was on vacation in order to “have sex.” Plaintiff also alleged that the professor sent her hundreds of unsolicited text messages, many of which included sexual remarks, told her he loved her, it was her fault and suggested they share a hotel room during field trips.

The plaintiff requested a new academic advisor because of the professor’s persistent sexual harassment and the severe emotional distress it caused. She also contacted Kutztown to inform the university of the professor’s sexual harassment and Plaintiff alleges that Kutztown failed to investigate the allegation and undertake remedial action. Thereafter, the plaintiff claims that the defendants “commenced a campaign of retaliation” against her by excluding her from a lecture series which she helped organize, preventing her from meeting with a visiting scholar, revoking certain library privileges, and excluding her from participating in events. As a result of the alleged retaliation, the plaintiff was forced to withdraw from her academic program and then registered another complaint with Kutztown about the professor’s behavior and the failure of Kutztown to investigate the previous complaint. Kutztown subsequently investigated her complaint and found that professor did, in fact, act “inappropriately.” Nonetheless, no disciplinary action against the professor was taken. Plaintiff further claims that the retaliation is ongoing because she has been deprived of opportunities for awards and scholarships, thereby adversely affecting her career opportunities. Kutztown also revoked the plaintiff’s invitation to a previously scheduled campus visit from the German Ambassador and the plaintiff was told by an emeritus professor of history that he would not assist her with her honors research project because he did not want to have anything to do with her since he “had been told [she] was in trouble with the University.” In addition, plaintiff received an email from an Associate Vice Provost, informing her that she was not permitted to participate in co-curricular activities.

The plaintiff filed a lawsuit claiming a violation of Title IX against Kutztown University for retaliation and claims against the professor for assault and battery and intentional infliction of emotional distress, seeking compensatory and punitive damages along with attorneys’ fees and costs. Kutztown filed a motion to dismiss the Plaintiff’s Amended Complaint where the only claim asserted against Kutztown is a Title IX retaliation claim. To state a prima facie case for retaliation under Title IX, the plaintiff must show that: 1) she engaged in a protected activity; 2) she experienced a materially adverse action after or contemporaneously with the protected activity; and 3) a causal link between the protected activity and the adverse action exists. The court found that the plaintiff had provided Kutztown of actual notice of the sexual harassment and because Kutztown and its agents retaliated against her after she made her complaint, there could be sufficient evidence of retaliation because she complained about sex discrimination, a form of intentional sex discrimination encompassed by Title IX’s private cause of action. The Court held that because plaintiff pled that members of the Kutztown faculty denied her access to academic assistance and resources related to her individualized course of study, only after she complained to staff at the university about professor’s sexual harassment, and as a result, she subsequently was forced to withdraw from her individualized course of study; the timing of these events and the remarks made by faculty, create a reasonable inference that the adverse actions taken against the plaintiff were causally related to her making a complaint against professor. Consequently, the court found that the there was sufficient evidence to make out a prima facie retaliation claim under Title IX.

While Miller does not involve sexual harassment of an employee, the case demonstrates a key issue that arises in sexual harassment cases. Just as with the educational institution in Miller, when an employee is being sexually harassed at work, it is critical that for an employer to ultimately be found liable, the employee must provide the employer with notice of the sexual harassment. Further, if as a result of reporting sexual harassment, the employee is retaliated against, an employee will have a separate cause of action for retaliation against the employer.

For more information on sexual harassment, retaliation and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130161.html.

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Filed under Retaliation, Sex / Gender Discrimination, Sexual Harassment

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