Essay Misstated Supreme Court’s Definition of Sexual Harassment

To the Editor:

Recently in your publication, a lawyer misstated the Supreme Court’s test for what constitutes sexual harassment under Title IX (“What DeVos Got Wrong in Her Speech on the ‘Dear Colleague’ Letter,The Chronicle, September 11).

Scott Schneider claimed the Supreme Court defined sexual harassment as “conduct of a sexual nature that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.”

But this is not the case. The Supreme Court, in its ruling in Davis v. Monroe County Board of Education (1999), used a narrower definition: sexual conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

The definition Schneider is citing is the overbroad definition of harassment issued by the Office for Civil Rights (OCR), where I used to work.

The OCR definition wrongly targets conduct that is not both “severe” and “pervasive,” even though the Supreme Court said its definition required both severity and pervasiveness, and thus did not reach “a single instance of sufficiently severe one-on-one peer harassment” that was not repeated.

The erroneous OCR definition also ignores that mild conduct can be “persistent” without being sexual harassment in either the workplace or on campus. Thus, in Baird v. Gotbaum (2015), a federal appeals court ruled that “a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight.”

Hans Bader
Arlington, Va.

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