The Volokh Conspiracy

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Law & Government

Lawyer's Asking School Employee Whether She Had Ever Kissed a Woman Not Workplace Harassment,

when the lawyers are investigating allegations that the employee "had romantic or sexual feelings for one of the students she coached."


An excerpt from Rys v. Clinton Central School Dist., decided yesterday by Frederick J. Scullin, Jr. (N.D.N.Y.) (there are also other things going on in this case, but I focus on the lawyer questions):

Plaintiff, a former middle school teacher and high school coach at Defendant Clinton Central School District …, commenced this action in October 2019, alleging, among other things, that she was discriminated against, suffered a hostile work environment, and was terminated after false allegations surfaced that she had romantic or sexual feelings for one of the students she coached, "K.S." … In addition to suing Defendant CCSD, Plaintiff also named various members of Defendant CCSD's faculty, … and two attorneys for Defendant CCSD ….

Plaintiff … alleges[, among other things,] that, on April 16, 2018, she met with the Attorney Defendants who "asked whether she had ever been in a relationship with a woman or had ever kissed a woman." According to Plaintiff, the Attorney Defendants questioned her "about her sexual orientation and her intimate relationships," focusing primarily on Plaintiff's relationships with women.

Plaintiff alleges that the experience was "humiliating and a gross violation of [her] privacy." … Plaintiff [also] alleges that the Attorney Defendants "discriminated against and disparately treated [her]" [and subjected her to a hostile work environment] based on her gender, sexual stereotyping, sexual orientation, or perceived sexual orientation, in violation of the Fourteenth Amendment. In her fourth cause of action, Plaintiff alleges that the Attorney Defendants "subjected [her] to a hostile work environment" based on her gender, sexual stereotyping, sexual orientation, or perceived sexual orientation….

[But] Plaintiff merely claims that the Attorney Defendants were in charge of investigating her allegedly improper relationship with a female student and that they met on one occasion as part of that investigation and asked Plaintiff questions about her sexual orientation and whether she had ever "kissed a woman." Even assuming that these allegations are true—as the Court must at the motion to dismiss stage of litigation—the Court finds that they do not rise to the level of severity that creates a hostile work environment, nor would a reasonable person find such questions in response to an inquiry about an alleged inappropriate teacher-student relationship to be "'hostile or abusive.'"

The Court further finds that Plaintiff has failed to sufficiently allege facts that the Attorney Defendants discriminated against her because of her gender or perceived sexual orientation or that a discriminatory motive could be inferred from the fact that the Attorney Defendants asked Plaintiff questions about her sexuality as part of their investigation into alleged misconduct….

Congratulations to Paul G. Ferrara of Costello, Cooney & Fearon, who represented the attorney defendants.