There are no shortages of news reports of teachers getting arrested and fired for sexually assaulting or harassing a student, who is often a minor. But what if a student who is a minor sexually harasses a teacher? Is the minor liable? Are the parents of the minor liable? Or are the administrators of the school liable?

Chatarpaul Law Firm filed a lawsuit under the New Jersey Law Against Discrimination (LAD) against Fort Lee Board of Education and its Superintendent for failing to renew the contract of a female teacher after she complained that a male student sexually harassed her. The teacher had requested that the student (a male and a minor) be removed from her classroom.  The school administrators did not remove the student from the teacher’s classroom and the sexual harassment continued. The teacher continued to complain about the student, but the administrators ignored those complaints, and eventually the school refused to renew the teacher’s contract.

During the litigation, the defendants filed a motion for summary judgment to dismiss plaintiff’s complaint. In moving to dismiss plaintiff’s complaint, the defendants argued that the plaintiff’s case was a “case of first impression, and that it “fail as a matter of law” as “no court in  the State of New Jersey has countenanced the imposition of LAD liability on a school district for alleged student-on-teacher harassment.” 

A “case of first impression“ simply means that a court faces a novel legal issue that has never been decided before in that jurisdiction. Because there is no existing precedent (prior case law) to bind the judge, they must establish a new rule of law to resolve the dispute.

The defendants argued that the “reach of the LAD has not been extended – and should not be extended – to contemplate a hostile work environment claim by a teacher based on the conduct of a student she is employed to educate…Here, Plaintiff alleges that a student – not the Board or any of its employees – harassed her because of her [sex], and thereby created a hostile work environment under the LAD.”

On behalf of the plaintiff, we filed an opposition to defendants’ motion for summary judgment. We argued that a classroom is a workplace for a teacher, and under the LAD, school administrators could be held liable for a student’s sexual harassment of a teacher where the school is aware of the harassment but failed to protect the teacher.

We further argued that while no courts in New Jersey have ruled on student-on-teacher sexual harassment, the  New Jersey appellate courts  would have no hesitation concluding  that a board of education for a high school could be held liable if they fail to protect a teacher from a high school student’s sexual harassment of the teacher because the Legislature’s expressive intent was that the LAD is to be construed broadly and liberally to eliminate all types of workplace harassment and discrimination in the State of New Jersey, and for a teacher, her workplace IS the classroom.

In fact, the LAD, specifically N.J.S.A. 10:5-12(a) provides that it shall be an unlawful practice for an employer, “because of…[sex] …to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” It does not exclude high schools.

In rejecting the defendants’ motion for summary judgment, and agreeing with our argument, in an opinion by the Honorable Lisa Perez Friscia, the Court made the following ruling as to the school’s liability for hostile work environment initially created by the student:

“In the within matter, it is undisputed the originating allegations of plaintiffs hostile work environment claim are based on a student’s actions and not of employees, employers, or supervisors’ actions. Plaintiff maintains after the student’s actions, defendants independently as her employer, through the response and actions, created a hostile work environment. In this motion, plaintiff’s allegations are that a male student made inappropriate comments and suggestive actions toward her as his teacher. It is undisputed the beginning alleged sexual harassment was from a student, but plaintiff alleges defendants, Fort Lee BOE and Superintendent [ ], did not eliminate and appropriately address the hostile work environment, instead creating a hostile work environment through defendants’ own conduct against her.”

“The …actions taken by the school, in addressing the hostile classroom work environment, this court finds, could support an actionable claim.“

“Assuming the facts in the light most favorable to plaintiff, a prima facie showing has been demonstrated to support defendants furthered or permeated a hostile work environment. The allegations by plaintiff began on or about September 25, 2021, and steadily continued with complaints and requests for action by defendants. The juvenile was removed on or about December 19, 2021. During the approximately three months of conduct alleged there were administrative meetings, a student meeting, a security officer class review, a parent meeting and then removal. A factual detailed review was required herein, the court in further contemplation finds a hostile work environment may be deemed to have been created from the defendants’ response and alleged inaction over the period time and after the student was removed. It is for a jury to consider if the school’s response and actions; in not taking greater action sooner, advising plaintiff she was not protected, beginning to evaluate plaintiff more frequently, providing new negative reviews and then terminating plaintiff, in totality created a hostile work environment. As such, summary judgment is denied as to plaintiff’s hostile work environment stemming from defendants’ response and actions, not the student’s action.”

As to the plaintiff’s claim for Retaliation in violation of the LAD, the Court made the following ruling:

“This court declines to grant defendants’ motion for summary judgment as to the LAD claim for retaliation. The facts when viewed in plaintiffs favor provide genuine issues of material fact as to whether defendants took actions in violation of N.J.S.A. 10:5-12(d), discriminating against plaintiff for her numerous good faith complaints regarding the school’s failure to aid and intervene on her behalf to confront continued inappropriate hostile sexual conduct by a male student in her classroom. Plaintiff complained that understanding and recognizing the Fort Lee BOA anti-harassment policy prohibited a pupil from harassing a teacher. While the court finds the defendants are not liable under the LAD for the underlying hostile classroom actions of the student, the court finds plaintiff’s complaints under the anti-harassment policy as to the student, and complaints as to defendants’ lack of action, were reasonably made. The school’s actions of undertaking more frequent evaluations and issuing negative reviews, after being alerted as to the student’s conduct through plaintiff’s continued complaints, and her involvement of the school security officer and her union representative, are factual issues to be reviewed by a jury in contemplation of defendants terminating plaintiff. Fort Lee BOE’s contemporaneous failure to renew plaintiff’s employment after her complaints of a hostile work environment and defendants’ alleged failure, because of plaintiff’s gender, to take actions, are material questions of fact. There are sufficient facts demonstrated for a jury to consider as to plaintiff’s status as a female teacher, complaining and seeking assistance, and the alleged potential retaliation. As such, the court declines to grant summary judgment as to retaliation under the LAD.“

In sum, while a high school student or the parents of a high school student may not face liability when the student sexually harasses a teacher, the school’s board of education may face liability if it knew about the harassment and permit it to continue or takes reprisal action against the teacher by terminating her employment.

Chatarpaul Law Firm, P.C. has been successfully representing clients for almost two decades in the New York and New Jersey areas, and we specialize in employment discrimination cases, as well as discrimination in non-employment settings, such as consumers and customers of banks, restaurants, retailers, auto dealerships and other businesses and institutions. We are committed to the relentless pursuit of justice for our clients against any defendants, no matter how big they are.

Sexual harassment comes in many forms, such as sex for promotion or career advancement (often referred to as “quid pro quo”), unwanted touching, unwanted sexually coercive behavior, offensive sexual jokes, sending of sexually suggestive photos/videos, masturbation, grabbing of crotch in plain view of employee, and other offensive sexual remarks and conduct.

Why do most women fail to report sexual harassment?

The most obvious reason for not reporting sexual harassment is FEAR – fear of retaliation, fear of termination, fear of not advancing in one’s career, fear that no one would believe the victim, fear that co-workers would treat the victim negatively, fear that the victim would be blamed for creating sexual harassment by her behavior or choice of clothing. Other factors include shame, guilt, cultural norms, or not being aware of legal rights.

Who is most likely to commit acts of sexual harassment?

The person who commits acts of sexual harassment is ordinarily (but not always) a person in the position of authority towards a subordinate, such as an employee or someone who looks up to the alleged harasser. A subordinate is often vulnerable to sexual harassment because she is dependent on the harasser for job security, career advancement, etc.

What are some of the effects of sexual harassment?

Sexual harassment can have a devastating impact on the harassed person, including creating an intimidating and abuse work environment, serious emotional and physical pain and trauma, depression, sleep disorders, weight loss or gain, lowered self-esteem and self respect, sexual dysfunction, and in severe cases, suicide.

How to report sexual harassment at the workplace?

Unwanted and unwelcomed sexual harassment, whether by co-worker or a manager/supervisor must be immediately reported to a higher-up manager and to the employee’s human resources (HR) department. If sex assault occurred, a police report should be immediately filed.

What protection do you have against retaliation for reporting sexual harassment?

Federal law (as well as most state laws) make it illegal for an employer to retaliate against an employee who files a complaint alleging sexual harassment. An employer may not terminate or otherwise discipline the employee complaining of harassment, nor may an employer alter the terms and conditions of the employees’ employment in a negative manner.

What should you do if the harassment continues despite reporting it?

If the harassment continues and the environment in which you must work becomes oppressive, uncomfortable, hostile, unfriendly or antagonistic, then you should file a charge or lawsuit against the employer and the harasser.

Most states and federal laws permit the employee being harassed to obtain relief for any emotional distress suffered, as all as for lost past and future earnings, punitive damages, attorneys’ fees and costs of the lawsuit.

Under federal law, before you file a lawsuit, you must first file a complaint with the EEOC within 180 days from the date of the harassment. States law differ. In New Jersey, for example, the employee can elect to go directly to the courts and file a lawsuit if alleging violation of New Jersey anti-discrimination laws. The statute of limitations under New Jersey law is two (2) years where the claims allege violation of New Jersey anti-discrimination laws.