Sexual Harassment and Discrimination Anna

Sexual Harassment and Discrimination

Anna has a valid claim against the school for sexual harassment by virtue of the unwanted touching of her body by Forester. Besides not taking any action against the offender, the school also allowed him to retaliate against her by assigning less desirable and onerous duties for rejecting his advances. Anna may have a valid claim against the school for allowing Forester to create a hostile work environment by virtue of age discrimination. Lisa may have a valid claim against the school for failing to accommodate her pregnancy as a temporary physical disability if by assigning less strenuous duties for which she was not qualified, her performance review suffered. If she (initially) suffered no damages as the result of being assigned to the math class despite being unqualified for it, she will not succeed against the school on that claim. Her claim for wrongful termination is a separate issue and she will likely prevail on that claim.

Wrongful Termination and Legal Fees

The school has no liability to Forester for wrongful termination. He applied for and took the position under false pretenses and by misrepresenting factual information about himself that was materially relevant and that would have been grounds for immediate disqualification for the position had he disclosed it in the application and interview process. Forester may argue that those allegations must be litigated at trial and that until they are established at trial, the school has an obligation to provide for his legal defense fees as they would for any other employee because he was employed by the school. The school will probably prevail against that claim by virtue of the material misrepresentation of Forester's identity. The school may argue that any liability to a "George Forester" cannot, as a procedural matter of standing, be pursued by Jerry Birches regardless of the substantive merits of any such claim by George Forester

Question # 2

Memorandum

The parents of the children may have valid claims against the school by virtue of negligence in hiring a convicted sex offender for a position in which he posed a serious and foreseeable risk of harm to students. Briefly, the school's failure to confirm the job applicant's identity and personal history information satisfies the element of negligence because it was a failure of due diligence in hiring, particularly in the Internet age. The school will be liable for that negligence because it was a proximate cause of specific harms suffered by the children and because the school had a duty not to be negligent in protecting students from foreseeable harms and breached that duty.

The school could try to argue that even if it breached that duty, if the specific type of harm caused by that breach (i.e. "abusive comments) were not of a sexual nature because that type of harm is unrelated to the types of harms to which the students were exposed by virtue of the negligent hiring of a sex offender. The school could try to distinguish abusive comments and sexually abusive comments in that argument. Given the context and the fact that being a convicted criminal and a sex offender could conceivably make the risk of any type of abuse (whether or not of a sexual nature) foreseeable, that defense is unlikely to succeed. However, generally, the knowledge of one Board member who does not disclose that knowledge to the Board will not be imputed to the rest of the Board. In any case, that issue is unlikely to matter because of the school's liability in negligence even without knowledge.

Question # 3

As previously discussed, the school is likely to be found liable to Anna for Title VII discrimination by virtue of her age because it allowed Forester to create a hostile work environment by failing to discipline either Forester or DuFrane, the other male teacher who made the hostile statement. The school will argue that even under those facts, the severity and extent of the statements were insufficient to justify liability because they amounted to only two isolated statements. Anna will likely prevail on her sexual harassment claim because the one incident will be sufficient to establish liability, particularly because the offender retaliated against her by assigning less desirable duties and because the school failed to respond appropriately to that situation. Anna does not have a valid claim against the school for the damages she suffered from the initial stabbing or for her medical expenses necessitated by it because the risk to which she was exposed was no different from the types of risk she could have faced as a teacher more generally as long as female teachers were generally eligible for assignment to Saturday detention classes. While the harm she suffered was linked factually to her wrongful assignment to the class, the limit of liability for that assignment will be within the retaliation claim only. She would only recover for the harm if the school only assigned large male teachers (for example) to detention classes or if she had been harmed by an assignment whose nature made the risk of proximate harm foreseeable. Finally, under the Affordable Care Act, the school wrongfully denied insurance coverage by virtue of a pre-existing condition.