James R. Zazzali

“ When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser. "Effective" remedial measures are those reasonably calculated to end the harassment. The "reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." ”

“ Because we do not create a strict liability standard, a district is not compelled to purge its schools of all peer harassment to avoid liability. Rather, we require school districts to implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment. Appropriate and reasonable measures will reinforce the basic principle that student-on-student sexual harassment is unacceptable. ”

“ A contrary conclusion would be incongruous with the LAD's prohibition of discrimination in other settings, including the workplace, because " [t] he right of a student to achieve an education free from sexual harassment is certainly as important as the rights of an employee in a work setting." ”

“ When a student is subjected to severe or pervasive bullying on the school bus, in the classroom, or at the playground, and a school district fails to adequately respond to that misconduct, that student has a right to redress. However, school districts will be shielded from liability when their preventive and remedial actions are reasonable in light of the totality of the circumstances. ”

“ The Administrative Law Judge (ALJ) concluded that a cause of action against a school district for student-on-student sexual harassment was not cognizable under the LAD. Further, even assuming that the LAD recognized such a cause of action, the ALJ opined that L.W.'s claim should be governed by Title IX standards. Title IX, which prohibits sexual discrimination in any federally-funded educational program, permits liability "only where the funding recipient acts with deliberate indifference to known acts of harassment." ”

“ See N.J.S.A. 18A:37-13 to -18 (enacting procedures to curb acts "reasonably perceived as being motivated either by actual or perceived characteristic, such as ... sexual orientation") . As the Legislature found,
[A] safe and civil environment in school is necessary for students to learn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts both a student's ability to learn and a school's ability to educate its students in a safe environment. ”

“ Prior to the harassment, family members described L.W. as "a very happy child." After the maltreatment, his family described him as "depressed," "fearful," and "withdrawn." According to his mother, he "was not . . . the same kid that he was years before." L.W. had difficulty paying attention in class, a problem that negatively impacted his academic performance. In fact, in seventh grade, a teacher called L.W.'s mother to express her concerns. The teacher reported that L.W. was "not the same boy who walked into my classroom in September. He's disruptive [, and] his grades are falling." ”

“ All persons shall have the opportunity to ... obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation ... without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex or source of lawful income used for rental or mortgage payments. ”

“ Moreover, in Lehmann, this Court established that under the LAD an employer will be liable for compensatory damages for a hostile work environment in three circumstances: (1) when the employer grants a supervisor authority to control the workplace and the supervisor abuses that authority to create a hostile environment, id. at 620, 626 A.2d 445; (2) when the employer negligently manages the workplace by failing to enact anti-harassment policies and mechanisms, id. ”

“ It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. ”

“ Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace. See K.P., supra, 228 F. Supp.2d at 550.
C. We are satisfied that the LAD standard governing hostile work environment sexual harassment, as modified below, comports best with the circumstances presented in this appeal. A contrary conclusion [A550] would be at loggerheads with the State's strong policy of protecting students. Educators have " [n] o greater obligation ... ”

“ Following a complaint by his mother, L.W.'s classmates wrote apology letters. L.W. returned to school, but the problem continued.
Middle School The harassment escalated in 1998 when L.W. enrolled at Intermediate West for seventh grade, a school with an enrollment of 1,400 students. "Almost every single day" classmates directed slurs at L.W. loudly in the halls "so everyone could hear." When asked about his day, L.W. would occasionally reply, "Nobody called me anything today. I had a good day." But, on entering the seventh grade, the maltreatment was no longer limited to verbal disparagement. ”

“ However, E.C., a classmate of L.W.'s, testified that the assembly addressed mostly "fighting" and "yelling in the [NJ395] hall." To the extent harassment was discussed, according to Benn, no specific reference was made to sexual orientation. The District did not reinforce the discrimination policy through assemblies, letters to parents, or any other widespread communication.
The District employed "progressive discipline" when addressing peer discrimination and harassment. ”