EDUCATION LAW REPORT Publishe in cooperation with the University of Pittsburgh s Tri-State Area School Stuy Council Volume XXVIII Number 2 2017 In This Issue Feeral Court Allows Title IX Claim to Procee Base Upon Allegations That Stuent Harasse by Peers for Failure to Conform to Gener Norms District Court Permits Transgener Person Diagnose with Gener Dysphoria to Sue Uner Americans with Disabilities Act Pennsylvania Courts Split Over Sexual Orientation Discrimination Sharp Pencil Not a Weapon Uner Pennsylvania School Coe School Employee Who Resigne After Her Hospitalization Coverage was Reuce Entitle to Unemployment Compensation Tucker Arensberg PC 1500 One PPG Place Pittsburgh, PA 15222 412.566.1212 2 Lemoyne Drive Lemoyne, PA 17043 tuckerlaw.com FEDERAL COURT ALLOWS TITLE IX CLAIM TO PROCEED BASED UPON ALLEGATIONS THAT STUDENT HARASSED BY PEERS FOR FAILURE TO CONFORM TO GENDER NORMS Russell Bittenener, et ux. v. Bangor Area School District, Case No. 15-6465 (E.D. Pa. 2017). The Unite States District Court for the Eastern District of Pennsylvania refuse to ismiss a complaint alleging that a school istrict violate Title IX for failing to aress harassment of a stuent by her peers for failing to conform to female gener norms. conuct iminishe in the classroom but continue elsewhere. She contens that the sex-base comments increase, with persistent commentary about S.B. s sexual orientation. There were continue instances of physical assault. S.B. spoke to the guiance counselor about creating a bullying prevention club because S.B. was a victim of bullying. SUMMARY AND FACTUAL BACKGROUND Accoring to a complaint file in feeral istrict court by her parents, a female stuent (S.B.) allege that she suffere offensive verbal sexual harassment an physical assault by other stuents while attening Bangor Area School District between the thir an eighth graes. The stuent allege that the harassment began when she was in thir grae but became a serious problem uring her fourth grae year. S.B. state that she was calle offensive terms an pushe because she i not conform to the harassers perception of female gener norms. This inclue being calle a slut or lesbian when she playe football with male stuents. S.B. reporte the harassment to a guiance counselor an her teacher. During her sixth grae year, S.B. gave a speech in front of the school boar about her bullying experience. The principal of S.B. s elementary school was present for this speech. During her seventh grae year an the following summer, S.B. alleges that the frequency an severity of bullying increase with continuing comments about her sexuality. S.B. organize a stuent club to combat bullying an consulte the guiance counselor about the sexual harassment she was experiencing uring this process. S.B. alleges that the sexual harassment persiste through the summer before an uring her eighth grae year. Prior to the start of S.B. s fifth grae year, S.B. s parents converse with an sent a letter to the principal about the offensive conuct. S.B. asserts that uring the fifth grae, the offensive continue Copyright 2016. All rights reserve. 1
EDUCATION LAW REPORT On one occasion uring her eighth grae year, the sexual harassment require S.B. to remove herself from class an go to the main office to speak with the principal, guiance counselors, an school psychologist. S.B. alleges that she share with them the etails of the bullying at this meeting, incluing what was sai to her an the effects on her. At one point, S.B. signe into the Lehigh Valley Hospital Behavioral Health Unit for ten ays of treatment because she was contemplating suicie. On September 27, 2013, S.B. s parents evelope a safety plan with school officials. On November 12, 2013, however, the school informe S.B s parents that it was removing the escort protection provie to S.B. uner the safety plan. Subsequently, S.B. s parents relocate to New Jersey where S.B. now attens school. In February 2016, S.B. file a complaint alleging that she was subject to sexual harassment an iscrimination an that the school istrict an various school officials violate Title IX by failing to aress the ongoing harassment of S.B. by her peers. The school istrict file a motion to ismiss S.B. s complaint, contening that she faile to state a viable Title IX claim. The feeral istrict court enie the school istrict s motion an allowe the stuent to procee with her claim. DISCUSSION Title IX (20 U.S.C. 1681(a)) provies that No person shall, on the basis of sex, be exclue from participation in, be enie the benefits of, or be subjecte to iscrimination uner any eucation program or activity receiving Feeral financial assistance. As recipients of feeral funs, public school istricts are subject to Title IX. In Davis v. Monroe County Boar of Eucation, 526 U.S. 629 (1999), the Unite States Supreme Court conclue that, pursuant to Title IX, a school an school officials may be hel liable for severe an pervasive stuent-on-stuent harassment or abuse where the school ha knowlege of harassment but faile to take reasonable steps to aress or prevent continue abuse. Whether stuent-onstuent sexual harassment rises to the actionable level of severe an pervasive epens upon a constellation of surrouning circumstances, expectations, an relationships incluing, but not limite to, the ages of the harasser an the victim an the number of iniviuals involve. To support a Title IX sexual harassment claim, a plaintiff must emonstrate that the allege conuct at issue was not merely tinge with offensive sexual connotations, but actually constitute iscrimination because of sex. Oncale v. Sunowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The court conclue that S.B. allege aequate facts to emonstrate that the harassment suffere was of a sexual nature. The allege verbal harassment was premise upon her sexual orientation an gener with comments regularly targeting her because she i not conform to female gener stereotypes an because the harassers believe she was lesbian. In these circumstances, sexuality was the crux of the harassment that lea to repeate comments such as slut, lesbian, gay, an you have a isease because you re a lesbian. A plaintiff asserting a Title IX violation also must emonstrate that an appropriate person ha actual notice of the allege conuct an the appropriate person faile to respon aequately to the iscrimination. Actual notice occurs when an appropriate person at the school has information sufficiently inicating a significant anger to the stuent so that the school can reasonably be sai to be aware of the anger. An appropriate person is, at a minimum, a school official having the ability to take remeial action an terminate the iscrimination. The Thir Circuit has recognize a principal of a school as an appropriate person for Title IX purposes. 2
Volume XXVIII Number 2, 2017 S.B allege that she an her parents informe various teachers, guiance counselors, principals, a school psychiatrist, school security an the superintenent that she was experiencing harassment. Accoringly, the court conclue that S.B. sufficiently pleae that an appropriate person was informe of the harassment. PRACTICAL ADVICE The Bittenbener ecision is emonstrative of the tren of courts interpretation of the term sex in feeral iscrimination statutes to encompass transgener an sexual orientation. Since the 1980 s, in employment contexts, courts have hel that averse action prompte by the failure of an employee to conform to gener stereotypes can be the basis of a sexual harassment or iscrimination claim. The interpretation of the term sex as use within Title IX is a logical extension of a similar rationale. When peer harassment among stuents is observe or reporte, school employees have the obligation to report such incients to school aministration. School aministrators are responsible for the investigation of any such reports an the evelopment an implementation of reasonable remeial actions to mitigate against the continuation of abuse. Perioic reinforcement of these obligations through school staff in-service is a pruent investment against institutional inifference or unresponsiveness to stuent complaints of harassment an potential liability for schools an school officials. DISTRICT COURT PERMITS TRANSGENDER PERSON DIAGNOSED WITH GENDER DYSPHORIA TO SUE UNDER AMERICANS WITH DISABILITIES ACT Blatt v. Cabela s Retail, Inc., No. 5:14-CV-04822, 2017 WL 2178123, at *2 (E.D. Pa. May 18, 2017). District Court for the Eastern District of Pennsylvania enies employer s motion to ismiss failure to accommoate an retaliation claims brought uner the Americans with Disabilities Act ( ADA ) by a former employee iagnose with Gener Dysphoria. SUMMARY AND FACTUAL BACKGROUND The plaintiff, Blatt is a transgener iniviual who is iagnose with Gener Dysphoria, a conition that substantially limits one or more of her major life activities, incluing, interacting with others, reproucing, an social an occupational functioning. Blatt claime that shortly after she was hire by Cabela s, Cabela s began to iscriminate against her on the basis of her sex an her isability, in violation of the ADA an other feeral laws, an that Cabela s retaliate against her for opposing this iscrimination. Blatt further allege that Cabela s terminate her employment base on her sex an isability, Gener Dysphoria. The state purpose of the ADA is to provie a clear an comprehensive national manate for the elimination of iscrimination against iniviuals with isabilities. 42 U.S.C. 12101(b)(1). In pursuit of this purpose, Congress broaly efine isability as a physical or mental impairment that substantially limits one or more major life activities of [an] iniviual. I. 12102(1)(A). However, there are exceptions to the ADA s coverage. Specifically, 42 U.S.C. 12211, exclues from ADA coverage approximately one ozen conitions, incluing gener ientity isorers. The main issue before the Court was whether Gener Dysphoria is a gener ientity isorer an, continue 3
EDUCATION LAW REPORT therefore, beyon the scope of the ADA. The seconary issue was whether Blatt set forth a claim uner the ADA. DISCUSSION Cabela s move to ismiss Blatt s ADA claims, arguing that the term gener ientity isorers, as use in 42 U.S.C. 12211, encompasses Blatt s Gener Dysphoria. This argument was supporte by the fact that Blatt allege in her complaint that she was iagnose with Gener Dysphoria, also known as Gener Ientity Disorer. Moreover, the Court acknowlege that Cabela s position was consistent with the accepte meical efinition of Gener Ientity Disorer when the ADA was enacte. However, the Court rejecte Cabela s interpretation of gener ientity isorers as use in Section 12111 of the ADA. First, the Court foun that the exceptions liste in 12211 fall into two istinct categories: 1) non-isabling conitions that concern sexual orientation or ientity (e.g., homosexuality, bisexuality); an 2) isabling conitions that are associate with harmful or illegal conuct (e.g., peophilia, pyromania, compulsive gambling). Next, the Court note that the term, gener ientity isorers, if it inclue Gener Dysphoria, woul not fit into either category because Gener Dysphoria is a isabling conition that is not associate with harmful or illegal conuct. Therefore, the Court conclue that the term gener ientity isorers ha to be interprete narrowly to refer to only the conition of ientifying with a ifferent gener, not to encompass (an therefore exclue from ADA protection) a conition like Blatt s Gener Dysphoria, which goes beyon merely ientifying with a ifferent gener an is characterize by clinically significant stress an other impairments that may be isabling. Base on this narrow interpretation, the Court rejecte Cabela s argument that Blatt s conition was not a isability within the scope of the ADA. The Court also rejecte Cabela s argument that Blatt faile to allege that she engage in protecte activity by opposing isability iscrimination in her workplace. To state an ADA retaliation claim, a plaintiff must allege that: 1) she engage in a protecte activity; 2) she experience an averse employment action following the protecte activity; an 3) there is a causal link between the protecte activity an the averse employment action. A causal connection may be shown by: 1) an unusually suggestive temporal proximity between the protecte activity an the allegely retaliatory action, or 2) a pattern of antagonism couple with timing to establish a causal link. A pattern of antagonism is a consistent an continuous pattern of conuct, which can inclue a constant barrage of written an verbal warnings as well as isciplinary action. The Court foun that Blatt s allegations that she continually reporte to her superior that she was subject to egraing an iscriminatory comments on the basis of her isability, that she requeste a female nametag an uniform an use of the female restroom as accommoations for her isability, an that as a result of requesting these accommoations she was subjecte to a pattern of antagonism prior to her termination sufficiently set forth an ADA retaliation claim. The Court, therefore, enie Cabela s motion to ismiss. PRACTICAL ADVICE This case emphasizes the importance of employers being sensitive to the nees of its employees with nontraitional sexual or gener ientities an highlights the risks of failing to o so. Generally 4
Volume XXVIII Number 2, 2017 speaking, if an employee is iagnose with a isability, the employee is covere by the ADA unless the isability is associate with enumerate harmful or illegal conuct set forth in Section 12111 of the ADA. Moreover, courts will interpret the exceptions set forth in Section 12111, especially those relate to gener or sexual ientity, narrowly. Moreover, the exceptions set forth in Section 12111 of the ADA may be vulnerable to a Constitutional challenge. Blatt argue that if her conition was covere by the gener ientity isorers exception, then Section 12111 unconstitutionally violate her equal protection rights. The Court was able to avoi this issue by holing that Gener Dysphoria was not covere by the gener ientity orer exception, but this issue may surface in future cases. Therefore, because this area of law is uncertain an evolving, school istricts shoul consult with their solicitor before making any employment ecisions base on gener or sexual ientity or any isabling conition not associate with harmful or illegal conuct. PENNSYLVANIA COURTS SPLIT OVER SEXUAL ORIENTATION DISCRIMINATION A recent ecision by Juge Jan E. DuBois in Coleman v. Amerihealth Caritas, No. 16-3652, 2017 U.S. Dist. LEXIS 85319 (E.D. Pa. June 2, 2017) emonstrates that Pennsylvania courts remain ivie as to whether Title VII of the Civil Rights Act of 1964 ( Title VII ) prohibits sexual orientation iscrimination by employers. Pennsylvania courts likely will continue to reach ifferent rulings until this question is resolve by a higher court, such as the Thir Circuit Court of Appeals or the U.S. Supreme Court. In Coleman, a Philaelphia man name Justin Coleman allege that his former employer, Amerihealth Caritas, use gay slurs against him, punche him, an sprea false rumors about his gener an sexuality. Coleman sue Amerihealth Caritas for sexual orientation iscrimination uner Title VII. The company move to ismiss Coleman s claim. It argue that feeral law oes not prohibit sexual orientation iscrimination by employers. Juge DuBois agree with Amerihealth Caritas. She rule that although Amerihealth Caritas s behavior was unacceptable, Title VII oes not prohibit iscrimination base on sexual orientation. Juge DuBois thus ismisse Coleman s sexual orientation iscrimination claim with prejuice. This ecision irectly conflicts with a ruling eight months earlier by Juge Cathy Bissoon, a feeral juge in the Western District of Pennsylvania. Uner similar facts in EEOC v. Scott Me. Health Ctr., P.C., 217 F. Supp. 3 834 (W.D. Pa. 2016), Juge Bissoon refuse to ismiss the plaintiff s sexual orientation iscrimination claim. She foun that Title VII barre sexual orientation iscrimination because such iscrimination inevitably involves jugments or stereotypes about how a person shoul behave base on their sex. Pennsylvania courts are not the only ones that continue to issue ifferent rulings on this issue. Juges across the Unite States have issue conflicting ecisions as to whether Title VII prohibits sexual orientation iscrimination. Many legal experts thus believe that the U.S. Supreme Court will eventually ecie one of these cases to bring clarity an finality to this area of the law. But until that ay arrives, employers shoul keep a close eye on how Pennsylvania juges rule on workplace sexual orientation iscrimination claims so that they unerstan their legal obligations. 5
EDUCATION LAW REPORT SHARP PENCIL NOT A WEAPON UNDER PENNSYLVANIA SCHOOL CODE S.A. v. Pittsburgh Pub. Sch. Dist., 2017 Pa. Commw. LEXIS 152 (Pa. Commw. Ct. May 1, 2017). SUMMARY AND FACTUAL BACKGROUND S.A. was a 10th grae stuent at Barack Obama International Acaemy, a high school in the Pittsburgh Public School District (PPS). She was sitting in class when another stuent threw the cap of a cologne bottle at her. When a thir stuent came to retrieve the bottle cap, S.A. woul not return the bottle cap an an argument ensue. During the course of the argument S.A. stabbe the thir stuent in the neck multiple times with a sharpene pencil. This stuent was treate by the school nurse an sent home for the ay. The nurse subsequently testifie that the injury coul have been worse ha the pencil puncture an artery. PPS charge S.A. with violating Rule 6 of the PPS stuent coe of conuct which prohibite possessing, hanling or transmitting a weapon while on school property. Rule 6 was moele after Section 1317.2 of the Pennsylvania School Coe. Section 1317.2 prohibits the possession of a weapon, efine as any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle an any other tool, instrument or implement capable of inflicting serious boily injury. Rule 6 contains a similar efinition of a weapon, but also inclues an explosive an mace within the list of specifie items. After a formal isciplinary hearing, the PPS Boar vote to expel S.A. for one year. S.A. then appeale to the trial court, which reverse the school boar. The trial court reasone that a pencil i not come within the efinition of a weapon uner the language of Rule 6. PPS appeale this etermination to the Pennsylvania Commonwealth Court, which affirme the trial Court. DISCUSSION The sole issue before the Commonwealth Court was the efinition of a weapon uner Rule 6 of the PPS stuent coe of conuct an section 1317.2(g) of the Pennsylvania School Coe. The Commonwealth Court explaine that whether a given item is a weapon in this context epens on how the item is typically intene to be use in a school setting. The fact that an item is use to commit an act of violence shoul have no bearing on whether the item is a weapon. Instea, the inquiry must focus solely on the object in isolation (in a vacuum, so to speak) an its inherent operational capabilities; that is, what the object is intene to o in the practical an functional sense. A pencil, because it is typically use as a writing implement, is not a weapon uner the Court s formulation. A pellet gun on the other han, woul have no purpose in a school environment other than to inflict injury on another. Therefore, the Court explaine that a pellet gun oes come within the efinition of a weapon. The Court rew a istinction between Section 1317.2(g) of the School Coe an Section 2301 of the Pennsylvania Crimes Coe, which efines a ealy weapon as follows: [a]ny firearm, whether loae or unloae, or any evice esigne as a weapon an capable of proucing eath or serious boily injury, or any other evice or instrumentality which, in the manner in which it is use or intene to be use, is calculate or likely to prouce eath or serious injury. The italicize language in the previous paragraph from the Crimes Coe expans the efinition of a 6
Volume XXVIII Number 2, 2017 ealy weapon to an item which, because of the manner in which it is use, is calculate or likely to prouce eath or serious boily injury. This efinition woul potentially inclue a pencil use to inflict serious boily injury. However, the Commonwealth Court pointe out that neither Rule 6 nor Section 1317.2(g) inclues the type of broa language inclue in the Crimes Coe. The Commonwealth Court ecline to inclue a pencil within the efinition of a weapon, explaining that if it were to o so, then a classroom full of stuents taking a multiple choice exam woul all be in violation of Rule #6 an, eventually, there woul be no stuents in attenance at school. PRACTICAL ADVICE An item (such as a pencil) that oes not typically function as a weapon may not support stuent iscipline for possession of a weapon uner the Pennsylvania School Coe, even when the item is use to inflict injury on another. A school istrict confronte with such an incient shoul consier assault charges uner its coe of stuent conuct, in aition to weapons possession charges. SCHOOL EMPLOYEE WHO RESIGNED AFTER HER HOSPITALIZATION COVERAGE WAS REDUCED ENTITLED TO UNEMPLOYMENT COMPENSATION Forbes Roa School District v. Unemployment Compensation Boar Of Review Commonwealth Court of Pennsylvania Case No. 1814 C.D. 2016 Claimant was hire as a paraprofessional at $10.15 an hour. She complete health insurance paperwork requesting coverage for herself an her spouse, coverage which the School District inavertently grante, even though paraprofessionals were entitle only to iniviual coverage uner their collective bargaining agreement. The School District iscovere its error an informe the employee that she woul receive employee an spouse coverage for the balance of the school year, but woul receive only iniviual coverage in the future. At the en of the school year, the employee was informe that she woul have to pay an aitional $947.16 a month to maintain coverage for her spouse. Claimant resigne an file for unemployment compensation. The Office of Unemployment Compensation Benefits an an Unemployment Compensation referee both rule Claimant ineligible for benefits because she voluntarily resigne. On appeal, however, the Unemployment Compensation Boar of Review in Harrisburg reverse, fining that the Claimant was eligible for benefits, because she ha necessitous an compelling reason for resigning her employment. The Commonwealth Court of Pennsylvania affirme the Boar s ruling explaining that when Claimant was initially hire, she unerstoo she woul receive coverage for her spouse an, in fact, such coverage was extene for an entire school year. The Court reasone that payment of $947.16 per month by an employee earning only $10.15 per hour represente a substantial change in the terms of her employment. The Commonwealth Court rejecte the School District s argument that the Claimant faile to take reasonable steps to preserve her own employment. Accoring to the Court, the employee met her responsibility by offering to remain in her position if the School District woul continue to provie hospitalization for her spouse on the same terms as the previous year. 7
Matthew M. Hoffman Co-chair 412.594.3910 mhoffman@tuckerlaw.com MUNICIPAL AND SCHOOL LAW GROUP John T. Vogel Co-chair 412.594.5622 jvogel@tuckerlaw.com Freerick J. Wolfe 412.594.5573 fwolfe@tuckerlaw.com Robert L. McTiernan 412.594.5528 rmctiernan@tuckerlaw.com William Campbell Ries 412.594.5646 wries@tuckerlaw.com Kenneth G. Scholtz 412.594.3903 kscholtz@tuckerlaw.com Irving S. Firman 412.594.5557 ifirman@tuckerlaw.com Gavin A. Robb 412.594.5654 grobb@tuckerlaw.com Ewar R. Lawrence, Jr. 412.594.3942 elawrence@tuckerlaw.com Christopher Voltz 412.594.5580 cvoltz@tuckerlaw.com Thomas P. Peterson 412.594.3914 tpeterson@tuckerlaw.com Richar B. Tucker, III 412.594.5562 rtucker@tuckerlaw.com Steve R. Bovan 412.594.5607 sbovan@tuckerlaw.com Davi Mongillo 412.594.5598 mongillo@tuckerlaw.com Daniel C. Conlon 412.594.3951 conlon@tuckerlaw.com MUNICIPAL AND SCHOOL LAW GROUP Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 412.566.1212 tuckerlaw.com Tucker Arensberg s Municipal an School Law Group represents local school istricts an municipalities in a variety of legal matters. Our attorneys are solicitors or special counsel for several school istricts/jointures an municipalities in Western Pennsylvania. In aition, our attorneys serve as special labor counsel to numerous school istricts an municipalities in Western Pennsylvania an have hel appointments as special counsel to school boars, zoning boars, civil service commissions an other municipal sub-entities. The range of services calle for in our representation of public boies is quite broa. Inclue in that range are: public an school financing, incluing the issuance of bone inebteness; labor, employment an personnel issues; public biing an contracting; school construction an renovation; taxation, incluing real estate, earne income an Act 511; pupil services an iscipline; zoning an lan use an litigation an appellate court work. The Tri-State Area School Stuy Council at the University of Pittsburgh was establishe in 1948 as a continuing partnership between school istricts an the University. We are the thir olest an secon largest Stuy Council in the country. We seek to work with you to aress the issues of practice we all face as we lea eucational organizations to improve focus an buil organizational capacity. Priorities establishe by the membership inclue: 1) timely information issemination on current research an exemplary practices; 2) research an evelopment technical assistance on projects to meet istrict nees; 3) professional evelopment programs an workshops on current topics; 4) participation in District clinical experiences to prepare future school leaers an; 5) practitioner participation in acaemic preparation programs. For more information, please contact Dr. Diane Kirk, Director, 412.648.1716. The information containe in Tucker Arensberg s EDUCATION LAW REPORT is for the general knowlege of our reaers. The REPORT is not esigne to be an shoul not be use as the sole source of resolving or analyzing any type of problem. The law in this area of practice is constantly changing an each fact situation is ifferent. Shoul you have any specific questions regaring a fact situation, we urge you to consult with legal council. 8