Reconciling Gebser & Faragher


Children are treated differently when it comes to their civil rights: they cannot recover civil damages unless they can show that the school actually knew about the sexual abuse and failed to do anything about it. Adults can sue employers without having to prove that they had any knowledge about their hostile treatment by fellow employees.

Valuing Employees Higher Than Children: Reconciling Gebser & Faragher

On June 22, 1998, in Gebser v. Lago Vista Independent School District, the United States Supreme Court held that families of children sexually abused or harassed by teachers or other school employees have no remedy unless they can prove that the school actually knew about it and failed to do anything. Four days later, on June 26, 1998, in Faragher v. City of Boca Raton, the Supreme Court held that employers can be held liable to employees who are victims of a sexually hostile atmosphere created by their supervisors, so long as they can show “knowledge or constructive knowledge” of the conduct.

This begs the question: since when are schoolchildren deserving of less protection than adults?

In Lago Vista, Texas, 14-year-old Alida Gebser first drew the attention of a teacher, Frank Waldrup, in eighth grade. Waldrup began making sexually suggestive comments in a book discussion group in which Alida participated. Other students complained about Waldrup’s improper conduct, conduct Waldrup denied in a meeting with school administrators. By ninth grade, teacher Waldrup’s sexual advances on Alida developed into an intimate sexual relationship.

Alida, out of fear of the consequences, did not report Waldrup’s predatory actions. The relationship, which included having sex during class time, ended only when they were caught engaging in sexual intercourse by a police officer. Waldrup was fired shortly after. In a close 5-4 decision, the Supreme Court said Alida could not recover damages from the school. She could not prove that the school actually knew that Waldrup was having sex with Alida.

In Boca Raton, Florida, college student Beth Ann Faragher got a dream summer job as an ocean lifeguard for the City of Boca Raton, Florida. Only ten percent of Boca Raton’s lifeguards were women. During her tenure, two of her three male supervisors ogled female beachgoers, discussed sexual matters openly, and subjected her to sexual comments and touching without invitation. Beth Ann discussed this informally with her third supervisor but lodged no formal complaints. The two supervisors were eventually disciplined after another female lifeguard wrote to the Boca Raton Personnel Director and complained. Two months later, Beth Ann resigned and sued the City of Boca Raton and the two supervisors for creating a hostile work environment. By a 7-2 decision, the Supreme Court said Faragher could recover damages without proving that the City of Boca Raton actually knew what its supervisors were doing.

Adult workers can thus recover civil damages without proving that their bosses were aware of conduct that created a hostile working environment. Children, on the other hand, cannot recover civil damages unless they can show that the school actually knew that their teacher is having sex with them and fails to do anything about it.

This is justice?

Gebser brought her claim under Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681 et seq.). Faragher’s claim arose under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1).

Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681 et seq.).

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1).

Both are recognized as civil rights statutes, written as a matter of social policy to provide protection to minorities and vulnerable persons who have been historical victims of discrimination and abuse. Yet, according to the Supreme Court, Title IX requires “actual knowledge” while Title VII applies the lesser “knew or should have known” standard. And in Faragher, respondeat superior principles apply, whereas in Gebser, they do not.

In Faragher, the Supreme Court cites apply the Restatement (Second) of Agency § 219, which provides that “a master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” The Court rejected the argument that supervisory sexual harassment falls outside the scope of employment, stating instead that “it makes sense to hold an employer vicariously liable under Title VII for some tortious conduct of a supervisor made possible by the supervisory relationship.” In contrast, in Gebser, the Supreme Court specifically rejects § 219 vicarious liability application, concluding that it would “frustrate the purposes of Title IX to permit a damages recovery against a school district for a teacher’s sexual harassment of a student based on principles of respondeat superior or constructive notice, i.e. without actual notice to a school district.”

It is unclear which “purposes” of Title IX would be frustrated by applying a respondeat superior analysis consistent with Title VII employment law. In Gebser the Supreme Court points out correctly that Title IX lacks a private right of action for money damages similar to the damages provisions added to Title VII by Congress in 1991. Until Congress speaks directly on the subject, says the Supreme Court, it will not hold a school district liable for damages under Title IX “absent actual notice and deliberate indifference.” Yet the Court also says that since Title IX lacks a specific money damages provision, the private right of action is “judicially implied,” and therefore “we have a measure of latitude to shape a sensible remedial scheme” that best comports with the statute. If Title IX is designed to prevent discriminatory conduct on the part of school districts that accept federal funds, why create a “remedial scheme” that, as Justice Stevens writes in his dissent, invites school administrators to remain purposefully ignorant of sexually predatory conduct involving children?

See No Evil, Pay No Damages as public policy?

Trying to reconcile Gebser and Faragher is frustrating, and explaining it to non-lawyers more so. There is little on the merits that justifies these opposing results. Both Gebser and Faragher, involved suits against public entities seeking payment of public funds.

With opposing results, there can be no argument that suits against public entities are discouraged. In Faragher, the supervisors whose conduct merited consideration of money damages enjoyed virtually unchecked authority which enhanced (if not created entirely) their opportunity and capacity to harass and abuse. The employees who were the subject of their harassment were completely isolated from the City’s higher management, who had the ability to exercise extensive control over the employee’s supervisors. Each of these factors relied upon by the Supreme Court in Faragher applies even more so in Gebser. School teachers enjoy similarly unchecked authority over the children entrusted to their care. This authority, granted by school administration, gives teachers the opportunity and capacity to harass and abuse these children. And students are quite isolated from “higher management,” i.e. school boards and administrators, due in part to their inexperience and vulnerabilities and in part to the school’s traditional structure.

It may be that the Supreme Court’s reconciliation of Gebser and Faragher make sense to lawyers, as bound as we are to the technicalities of statutory and legislative interpretation. There is little, however, that reconciles these cases easily in the public’s eye. Faced as we are with a public grown cynical of lawyers and the justice system, these two Supreme Court decisions are a tough sell.

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