In Case of First Impression, Arbitrator Finds District Overreached in Labeling Teacher’s Inappropriate Statements as “Sexual Conduct”

A school district determined that a teacher had engaged in “sexual conduct” within the meaning of ORS 339.370 based on comments he made about the meaning of song lyrics to his 7th grade choir. Essentially, when asked, the educator told the girls that teenage boys are often insincere and just want to have sex.  The District acknowledged that the teacher had not engaged in any grooming or predatory behavior. Nonetheless, it characterized his comments as “sexual conduct” because they made students feels uncomfortable.   If this determination had been allowed to stand, the teacher would always have to report the “sexual conduct” finding to any education employer – a career ending label.

Margaret Olney challenged the determination on behalf of the teacher and the local Association.     In the first case interpreting the statute, the Arbitrator agreed with the Association that the District was overreaching and that the teacher had not engaged in “sexual conduct.” The Arbitrator explained that the label of “sexual conduct” is reserved for conduct consistent with “grooming behavior” and that there must be evidence that the offensive comments are “sufficiently pervasive or severe to create a hostile environment.”   Just making a student feel uncomfortable was not enough. In addition, given the seriousness of the allegation, the Arbitrator determined that the statute required a thorough investigation, which the District did not do.