U.S. District Judge Kenneth A. Marra has granted summary judgment in favor of a Florida beauty academy that was charged by an expelled gay student with violating Title IX, a federal statute that bans sex discrimination by educational institutions that benefit from federal funding. Judge Marra found that the insults suffered by Luis Rodriguez were not sufficiently severe to constitute hostile environment sexual harassment, and that the school had responded appropriately when issues were brought to its attention. More significantly, Judge Marra found that because almost all of the harassment focused on Rodriguez's sexual orientation, not his sex, his claim to that extent would not be covered by Title IX. Rodriguez v. Alpha Institute of South Florida, Inc., 2011 Westlaw 5103950 (S.D.Fla. Oct. 27, 2011).
Rodriguez, 22, enrolled at Palm Beach Academy of Health & Beauty in Lake Park, Florida, to study hairdressing, in February 2009. The program involves two months of classroom instruction about hair and hairstyling, followed by "live client" clinical training. The school has been open for about ten years, and has had many openly gay or lesbian students and staff. The school has a written behavioral code that forbids any verbally abusive behavior or behavior deemed disruptive to class time, and new students have to sign an acknowledgment that they have received the policy and agree to abide by its terms.
Rodriguez claimed that from his first day as a student, he attracted homophobic comments. From the nature of the comments he described (e.g., that he dressed like a "fairy"), it sounds like he did not conform to male gender stereotypes. He wore his hair long and wore makeup. Other students called him "twisted and confused," "gross," "disgusting" and "sinful," and one student referred to him as "she-he." He didn't complain to the administration because he was "scared."
Things got worse when another man, Sammy, enrolled in the program just after Rodriguez had completed the classroom component. They had little contact while Sammy was completing his classroom training, but their occasional encounters were marked by name-calling by Sammy, including "fag" and "queen." Once Sammy began his clinical training and they were in regular contact, Sammy's verbal harassment escalated. A former instructor who is a lesbian testified to having witnessed an incident where Sammy called Rodriguez "faggot" and she gave Sammy a dressing down.
Rodriguez finally told one of the proprietors of the school, Ms. Creef, that Sammy was harassing him due to his sexuality. She called Sammy into her office and admonished him to behave.
The incident that ultimately led to Rodriguez being expelled occurred on October 15, 2009, when he "picked up Sammy's Louis Vuitton bag, put the straps over his shoulder, and said, 'Sammy, doesn't this look cute on me?' Sammy shouted, 'Don't fucking touch it. Get the fuck off my bag.' Sammy started calling him names, and then threw a water bottle and pen at [Rodriguez], neither of which hit him." Rodriguez's explanation for this behavior was that he was teasing Sammy because Sammy always made fun of Rodriguez for being gay but that Sammy actually "has a Louis Vuitton like a man bag." An instructor told them to behave and they both apologized to the instructor.
Twelve days after this incident, Rodriguez complained that somebody had written "fag" on his student timecard, and he accused Sammy of doing it. Ms. Creef got involved and the story gets more complicated from this point forward. Ultimately, Sammy was cautioned and put on probation for a while after Ms. Creef learned about the Vuitton bag incident. Ms. Creef concluded that Rodriguez had anger problems and decided to put him on probation as well. But when he next returned to school, Ms. Creef testified, he "was yelling and unapproachable and she was fearful," so he told him he was terminated from the school and sent him home. A formal expulsion letter followed.
Palm Beach County, in which Lake Park is located, does have county human rights legislation banning sexual orientation discrimination, but a quick check of the county's website suggests that it would not apply to this situation. This is not an employment case, and the public accommodations provision covers only certain kinds of establishments, among which schools are not expressly included. There is no state law on sexual orientation discrimination in Florida.
In the absence of state or local law that might apply to this situation, Rodriguez filed suit in federal court invoking Title IX, the federal statute prohibiting sex discrimination by schools receiving federal financial assistance. Presumably the Palm Beach Academy receives federal money through tuition assistance provided to some of its students, thus establishing jurisdiction. Rodriguez claimed that he was subject to a "hostile environment" on the basis of sex.
Although there have been some rulings under various federal sex discrimination laws holding that discrimination or harassment based on gender non-conformity may provide the necessary evidence of discriminatory intent for a sex discrimination claim by a gay person, Judge Marra didn't buy Rodriguez's argument that the harassment aimed at him was mainly due to gender non-conformity. "A review of the record shows that the vast majority of the comments made to Plaintiff pertained to his sexual orientation, and therefore cannot form the basis of his Title IX claim," wrote Marra. "Moreover, many comments highlighted as indicative of harassment based on sexual stereotyping were not made to Plaintiff, and Plaintiff was therefore unaware of these comments." Rodriguez's evidence had included testimony from fellow students about things that were said about him behind his back, but Judge Marra concluded, logically, that comments about which Rodriguez was not aware at the time could not be considered as creating a hostile environment for him.
As to the comments that clearly went to the issue of sexual stereotyping, Marra dismissed them as insufficient to meet the high evidentiary standard set by the federal courts for finding a hostile environment. "With respect to Plaintiff's testimony that he was criticized for his long hair and for wanting to wear nail polish and makeup, for dressing like a 'fairy,' and for being called a 'she-he,' the Court finds that these comments simply do not rise to the level of harassment that was 'so severe, pervasive and objectively offensive' that it 'systematically deprived him of access to educational opportunities of the school.'"
Even if the court were to find that Rodriguez was subjected to a hostile environment by fellow students, the school would only be liable under Title IX precedents if it reacted with "deliberate indifference" to the situation once it was drawn to the attention of administrators. In this case, Judge Marra found, Ms. Creef took complaints seriously, investigated them, followed up, and tried to administer the institution's policy against harassment. "Once notified," he wrote, "a school's investigation, followed up by reasonable conclusions and actions designed to remedy the situation, cannot be found to be deliberate indifference."
Having found that any harassment suffered by Rodriguez was either due to sexual orientation or, if founded on gender stereotyping, was insufficiently severe or pervasive to constitute a "hostile environment," and that the school responded appropriately when Rodriguez complained, Judge Marra concluded that the school was entitled to summary judgment rejecting Rodriguez's legal claim.
Pending federal legislation on sexual orientation and gender identity discrimination would not necessarily address the lack of state or local law in this case, because the Employment Non-Discrimination Act would not extend to discrimination against students in vocational schools. Unless sexual orientation and gender identity are added as additional grounds of forbidden discrimination under Title IX, or enacted as part of a general law banning sexual orientation or gender identity discrimination in institutions such as this vocational school, people in the position of Rodriguez will lack a viable federal cause of action for hostile environment harassment, even if they could meet the "severe or pervasive" test.