What is Sexual Harassment?
Sexual harassment is behavior such as inappropriate sexual remarks, pictures, noises, or physical advances in a workplace or other professional or social situation. And, yes, sexual harassment is legally actionable, even if the perpetrator is just “joking.”
Generally, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a student.
Real-life examples of student-on-teacher sexual harassment:
- A student repeatedly asked his female teacher questions about her nipples in front of other students. 
- A student repeatedly licked his lips at a female teacher and masturbated in his seat during a lesson. 
- Several students took “up-skirt” photographs of a female teacher and disseminated the photographs electronically among the student body. 
- Several students called a female teacher filthy names, flung condoms at each other, and touched her breast. 
- Several students found photos of a female teacher on Facebook and Photoshopped them with pictures of penises to make it look like she was sexually compromised. 
- Several students stole a female teacher’s phone, called her dad, and said: “We’re going to rape your daughter outside school.” 
- Several students, aged about 15, asked a female teacher for “blowjobs” and made comments about her breasts. 
Know Your Rights
There are several legal recourses teachers have at their disposal to combat student-on-teacher sexual harassment:
1. Title IX
Title IX is a federal civil rights law that was passed as part of the Education Amendments of 1972. Not many people know about Title IX – legal practitioners or otherwise – but Title IX was specifically enacted to prohibit discrimination on the basis of sex in any education program or activity that is federally funded. This means that if you teach at a school that receives federal funds, Title IX protects you. Under Title IX, the school or school district faces liability when it acts with deliberate indifference to the harassing conduct. 
Title IX encompasses employees as well as students, and even private sector employees where the employee works in a federally funded educational program such as a public school. Title IX has no requirement of exhausting administrative remedies.  To recover, a teacher must prove that the school or school district acted “intentionally [. . .] by remaining deliberately indifferent to acts [. . .] of which it had actual knowledge.” 
Most often Title IX is utilized for student-on-student sexual harassment, but it can also be used to protect teachers from sexual harassment received from students.  For example, in Plaza Torres v. Rey, a teacher was forced to resign because she felt continuous sexual harassment by a student.  She brought suit claiming that the administration failed to take appropriate remedial action once they were notified of the harassment and for the lack of an anti-harassment policy.  The school district brought a motion for summary judgment stating that the teacher’s claims failed as a matter of law. The Court denied the motion, in part, and expressly stated that a “a [teacher] of an educational institution may bring a private cause of action for sex discrimination/sexual harassment under Title IX or Title VII.” 
2. Title VII
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Title VII affords protection to victims of sexual harassment in the workplace, including “hostile work environment” claims.
“Hostile work environment” means an employee has been subjected to sexual conduct that had the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive work environment.
To establish a Title VII violation on grounds of “hostile work environment” sexual harassment, a teacher must prove:
• The teacher was subjected to unwelcome sexual advances, conduct, or comments;
• The harassment complained of was based on sex; and
• The harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment” and create an abusive working environment. 
To render the school or school district liable for student hostile work environment harassment, the teacher must prove the school or school district knew or should have known of the harassment and failed to take prompt remedial action.
Under Title VII, a teacher may also have a claim against the school or school district for failure to prevent sexual harassment in addition to the sexual harassment itself.
3. California’s FEHA
California’s Fair Employment and Housing Act (“FEHA”) is the state law equivalent to Title VII. Unlike Title VII, however, there is no minimum employee requirement. “Hostile work environment” claims under the FEHA are almost identical to Title VII.
The California legislature, however, recently made it easier for victims of sexual harassment to recover. As of January 1, 2019, an employee is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the employee did that the harassment so altered working conditions as to make it more difficult to do his or her job.  It is not necessary to show a tangible decline in productivity or satisfy the “severe or pervasive” requirement of Title VII – as a single incident of harassing conduct is sufficient.
4. Negligent and/or Intentional Infliction of Emotional Distress
A teacher may also pursue common law causes of action such as Negligent and/or Intentional Infliction of Emotional Distress. These causes of action allow a teacher to recover non-economic damages for humiliation, mental anguish, loss of enjoyment of life, grief, inconvenience, anxiety, and emotional distress stemming from the sexual harassment.
You don’t need to suffer in silence. We understand the stressors of unwanted sexual harassment, and we’re here to help. If you or someone you know has been a victim of student-on-teacher sexual harassment contact our experienced attorneys at Hogue & Belong today for a free and confidential consultation. 619.238.4720.
 https://www.eeoc.gov/laws/types/sexual_harassment.cfm; https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/DFEH_SexualHarassmentPamphlet.pdf.
 Bohnert v. Junipero Serra High School, Case No. 14-cv-02854-WHO.
 Reel v. New York City Department of Education, Case No. 1:09-cv-07322
 Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 2009 LEXIS 11637, *26 (7th Cir. May 29, 2009); Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 288-93 (1998.)
 Doe v. Mercy Catholic Med. Ctr. (3rd Cir. 2017) 850 F.3d 545, 562.
 Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 642 (1999.)
 Plaza-Torres v. Rey, 376 F.Supp. 2d 171, 179 (D.P.R. 2005.)
 Id. at 175.
 Id. at 175.
 Id. at 180, citing to several cases including: Ivan v. Kent State Univ., 92 F.3d 1185, 1996 WL 422496, *2 (6th Cir. July 26, 1996); Henschke v. N.Y. Hosp.-Cornell Med. Ctr., 821 F.Supp. 166, 172 (S.D.N.Y. 1996); Mabry v. State Bd. Of Comm. Colleges Occupational Ed., 813 F.2d 311, 315-18 (10th Cir. 1987.)
 Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 67.
 SB 1300.