Sexual Harassment, Same-Sex

The Law and its Enforcement

According to Title VII of the Civil Rights Act of 1964, public school boards and nonpublic schools with more than 15 employees that receive federal financial assistance may be liable for sexual harassment claims. Title VII is enforced by the Equal Employment Opportunity Commission. Title VII addresses harassment only when the perpetrator and the victim are employees. On the other hand, Title IX of the Educational Amendments of 1972 covers employee-to-employee, employee-to-student, and student-to-student harassment. Under Title IX, public and nonpublic institutions receiving federal funds may be liable for sexual harassment of students and employees. The Office for Civil Rights in the U.S. Department of Education enforces Title IX claims.

The early sexual harassment litigation focused on male-female interactions in employment and educational settings. Yet, the U.S. Supreme Court expanded the parameters of prohibited sexual harassment in Oncale v. Sundowner Offshore Services (1998). In Oncale, the Court ruled that Title VII prohibits sexual harassment when the perpetrator and the victim are of the same sex. Subsequently, while the Supreme Court of Alabama (H. M. v. Jefferson County Board of Education, 1998) and Eighth Circuit (Kinman v. Omaha Public School District, 1999) agreed that Title IX prohibits the sexual harassment of students by teachers of the same sex, in neither instance had the plaintiffs presented actionable claims. Further, although not reaching the merits of the underlying claim, the Ninth Circuit pointed out that students had a clearly established right not to be harassed by peers based on their actual or perceived sexual orientations (Flores v. Morgan Hill Unified School District, 2003).

Same-sex sexual harassment manifests itself in various forms. Often, the harassment is in the form of bullying based on the victims' physical features or sexual orientation. For example, male students who possess delicate features or feminine characteristics may be verbally teased or physically assaulted by same-sex classmates because these characteristics do not portray the example of a “typical” male. Likewise, female students who possess more masculine features may be vilified by their more “typical” female contemporaries.

Students may be bullied because of their sexual orientation. Gay male students may be verbally teased, even ostracized, by their male heterosexual classmates; [Page 758]on occasion, gay students choose to attempt or commit suicide to escape the emotional trauma. Often, the verbal abuse also leads to physical abuse. Reported abuse of openly lesbian students is less common than is abuse of their male peers.

Incidents of actual reported sexual assault by same-sex students are relatively rare. The few reports may be due to the lack of actual acts of sexual assault or the lack of reported behavior because of the embarrassment on the part of the victim. Same-sex sexual abuse is more common when perpetrators are school employees preying on students.

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