US Supreme Court Rejects School District’s Sanctions Against Cheerleader Despite Outburst

By an 8-1 majority, the United States Supreme Court blocked a Pennsylvania school district from punishing a cheerleader for a profane off-campus, off-hours outburst on social media. Mahanoy Area School District v. B.L., _ S. Ct. __, 2021 WL 2557069, 2012 U.S. Lexis 3395 (June 23, 2021). The Court’s decision sets limits on how far a public school district can punish a student for off-campus speech. The decision applies only to state and local public institutions. Justice Breyer wrote the Court’s opinion. Justice Alito wrote a long concurring opinion with numerous examples of situations in which a school district either may or may not regulate student speech.

B.L. a high school student, was angry at not having been chosen for the varsity cheerleading squad or the softball team. B.L. felt that she had been rejected unfairly. She posted a Snapchat message including the “F-bomb” directed toward school, cheerleading, softball, and “everything”. The posting took place off campus and outside school hours. The posting did not identify B.L.’s school or any individual at the school. But B.L.’s Snapchat message went to other students, some of whom implicated her. The high school then suspended B.L. for a year from the junior varsity cheerleading squad.

B.L. and her parents sued to enjoin the school from barring B.L. from the JV cheerleading squad. The plaintiffs alleged that the School District’s actions violated B.L.’s First Amendment rights to freedom of speech. The School District lost before both the District Court and the Third Circuit. See Mahanoy Area School District v. B.L.,964 F.3d 170 (3d Cir. 2020). The Third Circuit held that the School District did not have the ability to discipline a student for off-campus speech that was outside school-owned, operated or supervised channels and that could not be reasonably interpreted to bear the school’s imprimatur.

After accepting the case for review, the Supreme Court upheld the lower courts and ruled in B.L.’s favor, with only Justice Thomas dissenting. Justice Breyer gave three important reasons for differentiating between the School District’s inability to regulate off-campus speech and ability to control on-campus speech. First, a public school district does not stand in loco parentis for school students who are away from campus. Put more simply, parents are usually responsible for children once classes end and the student leaves campus. (This factor differs for private schools where the First Amendment does not apply, and for private boarding schools where the school is recognized as being in loco parentis during the student’s tenure at the school .) Second, a school district’s regulation of both off-campus and on-campus student speech might lead to a situation where a student had no rights of speech at all. Third, the schools have an interest in promoting free expression, even if the communication is unpopular.

The Court held that the School could not show that the disruption to School operations warranted the suspension. Finally, in recognition of the apparent triviality of not making the cheerleading squad and the student’s distasteful comments, the Court stated, “Sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Notably, the Supreme Court sided with the student on narrower grounds than the Third Circuit. The Supreme Court did not agree that the schools’ power to regulate student speech always disappeared when the speech takes place off campus. Schools would still have an interest in regulating severe bullying or harassment, threats aimed at teachers or students, speech related to academic and lesson matters, and speech that created breaches of security.

Sexual Harassment in the Workplace

For business owners, minimizing the risk of civil liability is one of the most effective ways to avoid impacting your profitability by unnecessary lawsuits. A sexual harassment lawsuit by an employee can result in a substantial award paid by the employer.

In 2019, Employers paid out a record $68.2 million through the Equal Employment Opportunity Commission (EEOC) to employees.[1] Even in cases that settle before trial, the average cost to an organization for a harassment claim can be between $75,000 - $125,000.[2]

As an employer, reducing the likelihood of such lawsuits requires taking proactive steps to ensure that you do not run afoul of state and local law. It can also make sense to speak with an employment attorney conversant in those laws.
But what exactly are the duties of an employer with regards to preventing sexual harassment claims from arising? Below are three of the most common ways to reduce this potential liability and add an extra layer of protection to your business's bottom line.

Reducing Your Exposure to Sexual Harassment Litigation

It is essential first to understand the various laws subject to a business owner.

At the federal level, under Title VII of the Civil Rights Act of 1964 (commonly referred to as "Title VII," employers have a responsibility to maintain a workplace free of sexual harassment and to "take all necessary steps to prevent sexual harassment from occurring." [3] To help accomplish this, the EEOC has issued regulations and guidance on the definition of sexual harassment and the employer's responsibilities. Courts use these guidelines to decide whether to hold an employer liable in a sexual harassment case (29 C.F.R. § 1604.11(e).

According to state law, each state has a similar commission or guidance; in Pennsylvania, for example, the Pennsylvania Human Relations Commission, according to state law, issues guidance and provides another way for employees to bring claims against an employer (43 P.S. § 955.)

1. Address sexual harassment before or at the start of employment.

Sexual harassment claims by employees often revolve around the conduct of a co-worker rather than the actions of a manager or a third party. At the same time, this varies by industry.

Educating your employees at their pre-employment orientation or the first day of work is key to protecting against later liability.[4] However, liability for sexual harassment turns on whether an employer permits an intimidating, hostile, or offensive work environment to exist. Employers, therefore, have a duty to proactively prevent sexual harassment, including expressing strong disapproval to employees, developing a procedure for handling complaints (and informing new employees of the existence of these procedures), and educating employees about their rights under state and federal law.

Under U.S. Supreme Court precedent, employers who take reasonable steps to prevent and correct sexual harassment have a strong defense should a claim ever arise.[5] Equally important is ensuring that these preventative measures and the availability of corrective actions are open and available to employees at all times.

While there is no definitive list of pre-employment practices to follow, at a minimum, having a stated anti-harassment policy would establish that the employer attempted to prevent harassment before it began. The more thorough your orientation training and educational practices are, the less likely you will face liability down the road.

2. Develop a system or procedure for handling complaints and follow it.

As mentioned above, informing employees of how you will handle sexual harassment complaints is an essential component of preventing such harassment before it can occur.

Nonetheless, employers who fail to follow a set practice for addressing complaints or who do not take such complaints seriously when made open the door wide open for a later lawsuit. Time and again, failure by business management to take swift action when an employee complains of sexual harassment invites more of the same conduct.

From a legal standpoint, when an employer fails to take corrective action, it opens the door to a sexual harassment suit. That failure can lead to substantial fines and costly settlements. When a procedure is put in place to address instances of sexual harassment, following through on those policies is an excellent way to reduce liability. An employment lawyer can help draft those policies to make sure you avoid potential issues.

3. Avoid retaliatory actions.

While it may seem common sense, employers unknowingly expose themselves to lawsuits and administrative sanctions when they take disciplinary action against the employee complaining of the harassing behavior. A surprisingly high number of complainants, perhaps as high as 75%, face some form of retaliation from their employers after reporting the harassment.[6]

While it may be tempting to transfer, demote, or otherwise discipline an employee who is causing disruptions at your business, employers need to think carefully before taking such action if they have voiced complaints about sexual harassment. While the discipline might seem unrelated to you, an arbitrator, judge, or jury may think differently.
To avoid litigation (which may be costly even if you win), be sure to work with your Human Resources department or employment lawyer before taking any action against an employee in this situation.

Implementing solid policies and a workplace culture that disapproves of sexual harassment is the best way to prevent unwanted conduct from becoming a costly problem.

Talk with an Employment Lawyer Near You

Implementing solid policies and a workplace culture that disapproves of sexual harassment is the best way to prevent unwanted conduct from becoming a costly problem. In addition, consulting with an employment lawyer near you experienced in employment discrimination can give you the best course of action for keeping your business running smoothly. Our law firm has offices in Montgomery and Bucks County. We can help create effective policies and deliver appropriate guidance for sexual harassment in the workplace claims.

[3] Phila. Hous. Auth. v. Am. Fed'n. of State, Cty. & Mun. Emples., Dist. Council 33, Local 934, 956 A.2d 477, 483 (Pa. Cmwlth. 2008).
[4] The sources of sexual harassment vary based on the work environment; for example, roughly 90% of women in the restaurant/foodservice industry reported some form of sexual harassment in a 2018 study by Harvard Business Review.
[5] Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 766 (1998)
[6] See