Sexual harassment policies can survive free speech challenge after <u>DeJohn</u> ruling Commentary
Sexual harassment policies can survive free speech challenge after DeJohn ruling
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Angie Perone [Attorney, Equal Rights Advocates]: "The Third Circuit's recent decision in DeJohn v. Temple University did not crumble important protections for students and workers in a school setting. The Court's conclusion that Temple University's sexual harassment policy was unconstitutional was based on the policy's failure to include particular language already embedded in federal law.

Free speech is not absolute. For example, the government can regulate speech if it consists of fighting words, threats of violence, or lewd and obscene speech. Various forms of sexual harassment can fall under these categories. Moreover, as noted by the Third Circuit itself, sexual harassment consisting of non-expressive, physically harassing conduct receives no free speech protection. Sexual harassment policies can still survive a free speech challenge after DeJohn.

The Third Circuit found Temple University's policy facially overbroad because it lacked language that the conduct must be severe or pervasive. This requirement mirrors current federal law as dictated by the United States Supreme Court. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), the United States Supreme Court concluded that for sexual harassment to be actionable, it must include conduct that is sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive work environment. The Supreme Court required the same showing of "severe or pervasive" conduct to sexual harassment claims in schools in Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).

Temple University's sexual harassment policy failed to include any language indicating that the policy prohibited conduct that was sufficiently severe or pervasive to create a hostile environment. In January 2007, Temple University amended its policy to include this language. Based on the Third Circuit's own language, Temple's modification saves its new policy from a similar constitutional challenge as in DeJohn.

While Temple's original policy can be criticized for lacking the magical words of "severe or pervasive," the original policy's language echoes language in the Equal Employment Opportunity Commission (EEOC) Guidelines for Discrimination Because of Sex. The EEOC Guidelines make no mention of any requirement that the conduct be "severe or pervasive." 29 C.F.R. § 1604.11. The Third Circuit put great weight on the fact that Temple's sexual harassment policy would have restricted speech on adult students at a college campus. The Court indicated that it must proceed with greater caution in such a university setting for fear that a broad policy would stunt academic freedom. While the EEOC Guidelines apply to workers in employment situations, courts addressing sexual harassment in school settings regularly rely on Title VII cases, which are within the EEOC's jurisdiction. Thus, while the Third Circuit's ruling in DeJohn did not necessarily create new law, its ruling suggests that the EEOC modify its guidelines to include language that conduct must be "severe or pervasive."

Interestingly enough, the Office for Civil Rights (OCR), which investigates sexual harassment complaints in schools under Title IX, includes the language "severe or pervasive" in its Sexual Harassment Guidance of 1997. Since the Office for Civil Rights serves as a better guide for schools, Temple University should have lifted language from OCR as opposed to the EEOC. Nevertheless, its modified sexual harassment policy cures this defect.

The Third Circuit's DeJohn decision did not eliminate any rights for students or employees in academic institutions. In fact, the Court recognized that a school has a compelling interest in preventing harassment. Instead, the Court aimed to teach an important lesson of inclusion to academic institutions of higher learning. At the very least, after DeJohn, universities should include the magical words of "severe or pervasive" in their sexual harassment policy. For Temple University, this was one expensive and time-consuming lesson, but nonetheless, a lesson learned."

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