In addition to urging agency liability, Ginsburg proposed to permit schools, akin to the standard articulated in Faragher , to assert internal procedures as an affirmative defense. Plaintiffs' attorneys must examine carefully what the school actually knew and who knew it. The absence of a policy and procedure no longer necessarily enhances the plaintiff's case and in fact may provide some tort insulation to the defendant school. Unquestionably, this decision has rendered Title IX sexual harassment cases more difficult to pursue for plaintiffs. However, plaintiff clients must be apprised as early as possible that, if they are being subjected to harassing treatment, they must give actual notice to the appropriate person at that institution.
Students are notoriously reluctant to report harassment.
There is a real danger that schools might seek to insulate themselves from Title IX liability by discouraging notice. First, the New York State Human Rights Law, which prohibits sex discrimination by employers, does not extend to academic institutions. Defendant schools no doubt will explore arguments that the liability standard articulated in Gebser would be the appropriate standard to apply in parallel state tort claims. Third, seeking remedy in tort directly from the harasser generally holds less financial appeal. When schools ignore sexual harassment, they are, in effect, condoning it.