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Legal Report July 2010


EMPLOYMENT. A federal appeals court has ruled that a school district did not violate the law when it failed to mention that a school teacher had sexually harassed his students. The district was not liable for the actions of that teacher, who went on to harass students at another school.

From 2002 to 2005, Jon White was employed as an elementary school teacher in McLean County, Illinois. While working in the district, White sexually abused his female students by, among other things, touching them inappropriately, showing them sexually suggestive photographs, and insisting they sit on his lap.

Students and parents complained to school officials, at least five of whom were aware of White’s activities. The district moved to get rid of White, but instead of firing him or calling police, officials entered into a severance agreement. Officials did not mention any of the complaints against White in the severance agreement. White was also given a positive letter of recommendation.

In 2005, White was hired by the Urbana School District, also in Illinois, to teach elementary school. While at Urbana, White repeated his pattern of abusing several of his students. White was arrested by Urbana police in February 2007. He pled guilty to aggravated criminal sexual abuse of two of his McLean students and eight of his Urbana students. The Urbana school district settled with each of the students in its district who were harassed by White.

The parents of one of the Urbana students, known as Doe-2, sued the McLean County School District for failing to disclose White’s abuse to the Urbana School District.

The parents sued under Title IX, a federal statute that allows students to sue school districts if a teacher sexually harasses them but only if the school acts with “deliberate indifference.” To prove deliberate indifference, plaintiffs must show that the school district had both actual knowledge of the harassment and substantial control over the harasser and the context in which the harassment took place.

The parents also claimed that the school violated state law by failing to report the harassment to authorities. By concealing White’s wrongdoing and allowing him to obtain a job at Urbana, the parents argued, McLean officials acted with willful and wanton disregard for their child’s safety.

McLean argued that the parents could not pursue their lawsuit under Title IX because the sexual harassment occurred in the Urbana district, and McLean could not have had control over White’s actions. Similarly, McLean contended that the parents could not sue for willful and wanton disregard because the district did not have a duty to protect students in another school district.

The U.S. District Court for the Central District of Illinois agreed with the school district on both counts. The parents appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit agreed with the lower court’s ruling. The appeals court found that even if the focus was on the severance agreement—the point at which McLean did have control over White—the school did not have the substantial control necessary to trigger liability under Title IX. This is because White did not begin to abuse Urbana students until several months after he left  McLean, creating so great a distance that McLean could not have had any control over White’s actions.

In addressing the state law claims, the appeals court ruled that McLean had no duty to protect the student from the criminal misconduct of a third party. The court determined that, even if McLean knew that White was likely to assault Urbana students, this fact alone would not create a duty under Illinois common law.

In the written opinion of the case, the appeals court discussed the limitations of federal law in the case at hand and noted that, while not commendable, McLean’s actions did not violate the law. “Perhaps expanding Title IX’s implied right of action to include a school district’s failure to expose a teacher-harasser no longer within its control would have a positive effect, discouraging school officials from quietly shuffling abusive teachers on to another district.” (Jane Doe-2 v. McLean County Unit District No. 5, U.S. Court of Appeals for the Seventh Circuit, No. 09-1936, 2010)

PRIVACY. The New Jersey Supreme Court has ruled that an employee had an expectation of privacy when sending e-mail from a private, Web-based account even though the account was accessed from a company computer.

Marina Stengart was given a laptop computer by her employer, Loving Care Agency, Inc. Stengart used the computer to send e-mails from her corporate e-mail account and browse the Internet. The laptop was configured to save a copy of each Web page Stengart visited in a “cache” folder.

Facing problems at work that she felt rose to the level of discrimination, Stengart was in contact with an attorney. On several occasions, Stengart used her laptop to access her personal, password-protected e-mail account to communicate with her attorney. A few months after contacting the attorney, Stengart filed a discrimination lawsuit against her employer.

Preparing for discovery, Loving Care Agency hired computer forensics experts to investigate Stengart’s laptop. During this investigation, the company discovered the e-mails Stengart had exchanged with her attorney. The company’s counsel read the e-mails and used them in their defense.

The company maintained that it had a right to view the e-mail messages because they were sent over the company’s network. The company’s computer-use policy stated that it could review “all matters on the company’s media systems and services at any time.” However, the policy also noted that “occasional personal use” of the computer system was permitted.

Plaintiff’s attorney requested the return of the e-mails, arguing that Stengart still had an expectation of privacy when communicating with her attorney, even over company computers. The trial court denied the request, ruling that Stengart waived the attorney-client privilege by sending the e-mails on the company computer. Stengart appealed.

The Superior Court of New Jersey reversed the decision, finding that the e-mails were still protected and that by allowing occasional personal use, the company’s computer policy could lead an employee to assume a certain level of privacy. The fact that the e-mails were sent over a password-protected Web site was also significant, ruled the court. The company appealed the verdict.

The New Jersey Supreme Court upheld the appellate decision. The court found that Stengart could reasonably expect that her e-mail communication with her attorney over a personal, password-protected, Web-based account would remain private. Sending and receiving the e-mail using a company laptop did not eliminate the attorney-client privilege. (Stengart v. Loving Care Agency, Inc., New Jersey Supreme Court, No. A-16-09, 2010)


FIRST RESPONDERS. A bill (H.R. 4992) introduced by Rep. Zach Wamp (RTN) is designed to protect individual first responders from litigation costs arising from unintended consequences. Under the bill, the employers of first responders would be required to pay for any liability, including litigation costs related to claims of liability that first responders incur in the course of their official duties. Exceptions would be made in the case of intentional wrongdoing or activities undertaken in bad faith.

The bill has no cosponsors and has been referred to the House Education and Labor Committee.

FIRE SAFETY. A bill (H.R. 4908) introduced by Rep. Bill Pascrell (D-NJ) would provide grants for colleges and universities to improve fire-safety programs.

The grants, which could be for amounts up to $250,000, would be awarded to fund programs to increase fire-safety awareness among college and university students, including those living in off-campus housing. The grants would fund a program for up to two years and would have to be matched by an investment of at least 25 percent of the total grant amount.

The awareness program would have to include instruction on awareness of fire behavior, mechanisms of injury and death by fire, common ignition scenarios, fire-safety systems such as sprinklers, the use of fire alarms and fire extinguishers, and escape routes. Colleges and universities that use the grants must evaluate the success of the program and report the results to the government.

H.R. 4908 has five cosponsors and has been referred to the House Education and Labor Committee. A companion bill (S. 3142) has one cosponsor and has been referred to the Senate Health, Education, Labor, and Pensions Committee.



CREDIT CHECKS. A bill (H.B. 4658) pending in the Illinois legislature would prohibit companies from conducting credit checks on prospective employees. Under the bill, it would be illegal for companies to use credit checks to make decisions on hiring, recruiting, discharge, or compensation. Exceptions would be made for financial institutions, public safety agencies, or other government agencies that require credit checks as a matter of law.

The bill has been approved by the Illinois House of Representatives and is now pending in the state’s Senate.


HIRING. A new Utah law (formerly H.B. 206) would restrict how employers could request personal information from prospective employees. Under the law, employers may not request an applicant’s Social Security number, date of birth, or driver’s license number until after the applicant has been offered a job. The information may also be requested after the applicant has agreed to a criminal background check, credit check, or driving record check.

Employers must maintain policies on retention, disposal, access, and confidentiality of such data. Except as required by law, an employer may not retain the information for more than two years.

This column should not be construed as legal or legislative advice.