Rand L. Stephens, Inc. 511 West Third Street Antioch, CA 94509 Telephone: 925-757-1700 e-mail: help@jobdiscrimination.org

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No. 97-843. Argued January 12, 1999-Decided May 24, 1999

Petitioner filed suit against respondents, a county school board (Board) and school officials, seeking damages for the sexual harassment of her daughter LaShonda by G. F., a fifth-grade classmate at a public elementary school. Among other things, petitioner alleged that respondents' deliberate indifference to G. F.'s persistent sexual advances toward LaShonda created an intimidating, hostile, offensive, and abusive school environment that violated Title IX of the Education Amendments of 1972, which, in relevant part, prohibits a student from being "excluded from participation in, being denied the benefits of, or being subjected to discrimination under any education program or activity receiving Federal financial assistance," 20 U.S.C. § 1681(a). In granting respondents' motion to dismiss, the Federal District Court found that "student-on-student," or peer, harassment provides no grounds for a Title IX private cause of action for damages. The en banc Eleventh Circuit affirmed. The U.S. Supreme Court reversed that Appellate Court and Trial Court decision.

Held:

1. A private Title IX damages action may lie against a school board in cases of student-on-student harassment, but only where the school recipient is deliberately indifferent to sexual harassment, of which the school has actual knowledge, and that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access o the educational opportunities or benefits provided by the school.

(a) An implied private right of action for money damages exists under Title IX, where schools had adequate notice that they could be liable for the conduct at issue, but a recipient is liable only for its own misconduct. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. A school district may be liable for damages under Title IX where it is deliberately indifferent to known acts of teacher-student sexual harassment. This also applies in cases of student-on-student harassment. The common law has also put schools on notice that they may be held responsible under state law for failing to protect students from third parties' tortious acts. If a school does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment, i.e., at a minimum, causes students to undergo harassment or makes them liable or vulnerable to it.

(b) Having previously held that such harassment is "discrimination" in the school context under Title IX, this Court is constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of "discrimination" actionable under the statute.

2. Applying this standard to the facts at issue, the Eleventh Circuit erred in dismissing petitioner's complaint. This Court cannot say beyond doubt that she can prove no set of facts that would entitle her to relief. She alleges that LaShonda was the victim of repeated acts of harassment by G. F. over a 5-month period, and allegations support the conclusion that his misconduct was severe, pervasive, and objectively offensive. Moreover, the complaint alleges that multiple victims of G. F.'s misconduct sought an audience with the school principal and that the harassment had a concrete, negative effect on LaShonda's ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort either to investigate or to put an end to the harassment.

O'Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.

The question before the Court was whether plaintiff-appellant January Fredenburg is judicially prevented (estopped) from establishing a claim against her former employer under the Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12101 et seq. Fredenburg had applied for and received state temporary disability insurance benefits available to workers who, because of a physical or mental condition, are "unable to perform their regular or customary work." Cal. Unemp. Ins. CodeSS 2601, 2626, 2653. The district court held that this fact judicially estopped Fredenburg from establishing that she is a "qualified individual with a disability" under S 12112(a) of the ADA.

The Appellate Court concluded that Fredenburg is not judicially estopped, and accordingly reversed the judgment of the district court which originally held that she couldn't which originally held that she couldn't sue her employer under the ADA.

SUMMARY OF FACTS

Until 1995, Fredenburg worked as a Mental Health Treatment Specialist II for the Contra Costa County Department of Health Services ("Health Services"). After several on-the-job difficulties with co-workers, Health Services asked Fredenburg to submit to a fitness-for-duty examination, as authorized by the applicable (union) collective bargaining agreement. A psychiatrist and a clinical psychologist diagnosed Fredenburg as suffering from paranoia and recommended that she take a leave of absence and pursue therapy. Health Services placed Fredenburg on administrative leave with pay for two weeks, and thereafter on indefinite leave without pay. Fredenburg appealed to the County Merit Board, claiming that she was fit for work. The Board denied her appeal. Meanwhile, Fredenburg applied for and received disability benefits from the State of California, which provides temporary benefits up to one year for workers who, because of a physical or mental condition, are "unable to perform their regular or customary work." Cal. Unemp. Ins. Code SS 2601, 2626, 2653. She received benefits from November 1995 to May 1996. The benefits were terminated on May 12, 1996, after a state psychiatrist found her capable of returning to work. Fredenburg attempted to have the benefits continued, certifying on May 22, 1996 that she was still disabled and incapable of doing her regular work, but she was unsuccessful.

The following month, Fredenburg sought to return to work, and Health Services asked her to undergo another fitness-for duty examination. Fredenburg refused, contending that the examination was overbroad in scope and invaded her privacy. Health Services did not allow Fredenburg to return to work. Fredenburg then commenced this action.

Fredenburg stated two ADA claims: (1) that Health Services unlawfully discriminated against her by removing her from work and refusing to permit her to return; and (2) that Health Services' fitness-for-duty examination exceeded ADA's permitted boundaries for medical examinations. Fredenburg also alleged a number of state law claims.

The district court granted summary judgment for Health Services on the ADA claims. With regard to the first claim, the court held that Fredenburg's representations to the state benefits agency that she was unable to do her regular work judicially estopped her from asserting in this action that she was a "qualified individual" under the ADA §12112(a). The district court then held that this conclusion was also fatal to Fredenburg's second ADA claim, because she had to be a "qualified individual" in order to maintain a claim for an improper medical examination requirement. After ruling for Health Services on the ADA claims, the district court elected not to exercise supplemental jurisdiction over the state-law claims, and dismissed them without prejudice.

The Ninth Circuit Court of Appeal reversed the District (trial) Court and allowed her case to proceed.

This is a Constitutional challenge to random urine tests for bus dispatchers and instructors.

Facts.

According to the complaint, Mr. and Mrs. Gonzalez both work for the municipal bus service in Los Angeles. Mrs. Gonzalez is a radio dispatcher, Mr. Gonzalez an instructor. Their employer, the Los Angeles County Metropolitan Transportation Authority, conducts random unannounced testing for drugs and alcohol pursuant to the federal Omnibus Transportation Employee Testing Act of 1991 and regulations thereunder. 49 U.S.C. S 5331; 49 C.F.R. Part 653-54.

Mrs. Gonzalez was subjected to a urine test at a medical facility pursuant to the policy. The test came out negative, but the process was so upsetting to her, according to the complaint, that she needed medical treatment and was unable to return to work afterward. She was a victim of child abuse, which made her unusually sensitive to interference with her bodily privacy. Mr. Gonzalez has not been tested, but is upset both by what happened to his wife and by the prospect of being tested himself.

According to the complaint, the tests are based on the classification of both their jobs as "safety-sensitive," but that classification cannot be justified. Also, the tests are not accurate enough to be justifiable to serve any public purpose, nor are there any screening procedures to protect unusually sensitive people like Mrs. Gonzalez.

The complaint claims that the tests amount to an unconstitutional search, violative of the Fourth Amendment, and also Article I, sections 1 and 13, of the Constitution of the State of California.
The relief sought is for a declaratory judgment that the testing program is unconstitutional, damages for lost earnings and emotional distress, and an injunction to prohibit testing of Mr. and Mrs. Gonzalez pursuant to the program.

The Court held that the tests were unconstitutional.

Alameda
Defense (decided by the jury in favor of the employer)
Los Angeles
Plaintiff $350,000
Defense
Orange
Plaintiff $ 2,043,000
San Diego
Plaintiff $ 528,541
Defense
San Francisco
Plaintiff $ 1,253,800
Plaintiff $ 2,752,616
Yolo
Plaintiff $ 4,3000,000
Comments
There have been some extraordinary judgements at the trial level recently. For Plaintiff one can only assume that most of the cases had compelling facts. The notable exception is Alameda County. This jurisdiction is notorious for liberal jury awards but has not been producing them in recent years. In May, in Alameda County Courts, seven cases went to the jury of all types of subject matter; six of the seven resulted in jury verdicts favoring the Defendants and only one awarded any money to a Plaintiff ($20,970 on a premises liability case). Statewide, verdicts usually break down half and half. That is, after all, what makes a good horse race.