Until a recent decision by the Missouri Court of Appeals, no Missouri case had addressed whether the Missouri Human Rights Act (“MHRA”) covers a claim against a public school district for sex discrimination based upon student-on-student sexual harassment. The decision in Doe ex rel. Subia v. Kansas City, Missouri Sch. Dist. made it clear that such a claim falls directly within the purview of the MHRA, Section 213.065.
John Doe was a student at Swinney Elementary School, which is part of the Kansas City, Missouri School District (“School District”). In October 2010, Doe filed a Petition against the School District alleging that the District failed to protect him from sexual harassment and sexual assault by a fellow student, which constituted sex discrimination that deprived him of the full, free and equal use and enjoyment of the School District’s elementary school, a public accommodation.
Doe alleged that beginning in May 2009, he was sexually harassed and sexually assaulted by another student on multiple occasions during school hours and on school grounds. Doe asserted the perpetrator climbed under the stalls in the boys’ restroom to commit the sexual harassment and sexual assaults. Doe further alleged that school administrators, as well as the teachers and paraprofessionals responsible for supervising him and the perpetrator, had knowledge of the perpetrator’s inappropriate and sexualized behavior and his aggressive tendencies. Despite knowledge of the perpetrator’s sexual tendencies, school personnel permitted the perpetrator to use the restroom at the same time as other male students. Consequently, the perpetrator had the opportunity to sexually harass and sexually assault him. Doe contended that, as a result of the sexual harassment and sexual assaults, he experienced emotional distress in the form of anxiety, fear and depression, among other manifestations.
Doe asserted the School District’s acts and omissions violated the MHRA, Chapter 213, RSMo. Specifically, he alleged the sexual harassment and sexual assaults occurred on the basis of his gender and constituted sex discrimination. He further claimed that Swinney Elementary School, as part of the School District, was a public place of accommodation, and that he was deprived of the full, free and equal use and enjoyment of the school and its services by way of the School District’s actions and inactions.
The School District moved to dismiss Doe’s Petition. Following a hearing, the Circuit Court granted the School District’s motion to dismiss on the basis that Doe failed to state a cause of action under the MHRA against the School District. Doe thereafter appealed the decision.
On appeal, the Missouri Court of Appeals relied upon Section 213.065 of the MHRA, which provides in relevant part:
1. All persons within the jurisdiction of the state of Missouriare free and equal and shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation, as hereinafter defined, without discrimination or segregation on the grounds of race, color, religion, national origin, sex, ancestry, or disability.
2. It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.
3. The provisions of this section shall not apply to…a place of accommodation…or other establishment which is not in fact open to the public. . . .
Section 213.010(15) defines “places of public accommodation” as “all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement[.]”
The Missouri appellate court noted that whether Section 213.065 covers a claim against a public school district for sex discrimination based upon student-on-student sexual harassment is a matter of statutory interpretation. The primary goal of statutory interpretation is to ascertain the legislature’s intent from the language used and to give effect to that intent. Courts must interpret statutes consistently with the legislature’s obvious purpose. In ascertaining that purpose, courts should not read statutory provisions in isolation but, rather, they should construe the provisions of a legislative act together and read a questioned phrase in harmony with the entire act.
The court further noted that Section 213.065 is a remedial statute. Therefore, courts should interpret it liberally to include those cases which are within the spirit of the law and all reasonable doubts should be construed in favor of applicability to the case.
With this in mind, the School District argued on appeal that public schools are specifically excluded as places of public accommodation by Section 213.065.3 because they are “not in fact open to the public” because members of the general public do not have unfettered and unlimited access to them. Accordingly, the issue on appeal was whether a place of public accommodation must be accessible by all members of the public to be “open to the public.”
In analyzing the issue, the Missouri Court of Appeals explained that Missouri courts have long considered public school districts to be both subdivisions of the State and public corporations. In addition, prior case law has specifically recognized “that an entity can be said to serve the public even if it serves only a subset or segment of the public and is subject to regulation on that basis.” The court therefore found that limiting the phrase “open to the public” in Section 213.165.3 to mean accessible by all members of the populace would be contrary to the legislature’s intent and would effectively nullify the prohibition against discrimination in public accommodations. As such, the court held that because Doe alleged that Swinney Elementary School was a public facility that was owned, operated or managed by a public school district, which was a subdivision of the State of Missouri and a public corporation, he sufficiently pled that Swinney Elementary School was a place of public accommodation.
In his Petition, Doe also asserted that the School District was liable under the “indirect” theory set forth in Section 213.065.2, as he claimed that the School District, by its actions and inactions in failing to protect him from the harassment and assaults, was responsible for denying him the full and equal use and enjoyment of the public school and its services. The Missouri Court of Appeals stated that because Section 213.065.2 alternatively prohibits a person from “indirectly” denying the benefits of a public accommodation, the statute also contemplates liability for a party who does not personally engaged in the discriminatory acts but who is responsible for the denial of the advantages, facilities, services or privileges of a public accommodation that results from another’s discriminatory acts. The court noted that a school district exercises significant control over its students through its disciplinary policy. And because it has such control over its students, a school district’s failure to take prompt and effective remedial action to address a student’s sexually harassing and sexually assaulting another student has the potential to deny the aggrieved student the full and equal use and enjoyment of the advantages, facilities, services and privileges of the public school. Thus, the court found that the Section 213.065 encompasses a claim against a school district for student-on-student sexual harassment in a public school.
Finally, the court reiterated that an employer is liable under Section 213.055.1(1)(a) for the sexual harassment of one co-worker by another if the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. After a lengthy analysis, the court held that the standard for a public school district’s liability for student-on-student sexual harassment under the MHRA should be the same as that for an employer’s liability for co-worker sexual harassment under the MHRA. In other words, a public school district can be held liable if it knew or should have known of the harassment and failed to take prompt and effective remedial action.
Based upon the foregoing, and construing Doe’s petition liberally and according it all reasonable inferences deducible from the facts stated, the Missouri Court of Appeals reversed the Circuit Court’s judgment and held that Doe sufficiently stated a cause of action under Section 213.065 for discrimination in a public accommodation based on student-on-student sexual harassment.