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RICHMOND, Va.Private employers as well as schools could learn some lessons from a protracted sexual harassment lawsuit that a federal appeals court has extended against one of the most successful coaches ever in collegiate athletics, attorneys say.
The full 4th U.S. Circuit Court of Appeals on April 9 ruled that a trial court should hear the sexual harassment lawsuit filed against the University of North Carolina at Chapel Hill and women's soccer coach Anson Dorrance.
The ruling overturned two lower courts in a case filed by a former women's soccer player nearly nine years ago.
One court that the 4th Circuit overturned in its 8-2 decision was its own three-judge panel, which handed the defendants a 2-1 victory last year. The panel ruled that Mr. Dorrance's vulgar language with players did not amount to sexual harassment because he never touched, threatened, ogled or propositioned the former player.
Since establishing UNC's women's soccer program in 1979, Mr. Dorrance's Lady Tar Heels teams have won 18 NCAA women's soccer national championships.
According to published articles, Mr. Dorrance's success stems partially from his ability to foster a close-knit team, with him serving as a father figure.
But former backup goalkeeper Melissa Jennings charges that much of Mr. Dorrance's bonding techniques involved incessant and often vulgar bantering with his players about their sex lives and the players' anatomies. In addition, Ms. Jennings asserts that Mr. Dorrance often touched one player and that she overheard him describe a sexual fantasy he had about players.
Ms. Jennings said that while Mr. Dorrance directly questioned her only a of couple times about her sex life, she typically managed to avoid such encounters with him.
Ms. Jennings complained to school officials during her freshman year in 1996 about the alleged hostile environment Mr. Dorrance created, but a school official told the player to work out the issue with her coach, according to court papers. The school sent Mr. Dorrance a mild cautionary letter about Ms. Jennings' complaint, but the letter also praised the coach for his achievements.
At the end of Ms. Jennings' sophomore year, Mr. Dorrance cut her from the team, citing her low grades and poor conditioning. She then sued UNC, Mr. Dorrance and other school officials.
The hostile environment Mr. Dorrance allegedly created and UNC's handling of Ms. Jennings' complaint deprived the plaintiff of her right to enjoy her participation in a school athletic program, which is a violation of her Title IX rights under the Civil Rights Act of 1964, said her attorney, Daniel Konicek. Ms. Jennings is seeking damages "well in excess of seven figures," said Mr. Konicek of Konicek & Dillon P.C. in Geneva, Ill.
Mr. Dorrance argued that most of the sexual banter was among the players and that he participated in it in limited instances only teasingly or to gauge how his players' social lives might be harming their health and grades.
In rejecting Mr. Dorrance's argument, the 4th Circuit's majority ruled: "In reality, Dorrance abused his power as coach to ask his players questions a father would not ask." His power as coach "trapped players into responding to his questions and enduring the environment."
The majority also rejected the dissenting opinion's notion that jocularity is a part of team sports that athletes must accept.
"The court really sent a message that you don't have to put up with an environment of harassment to play a team sport," said Fatima Goss Graves, senior counsel for the Washington-based National Women's Law Center.
Ms. Graves and Mr. Konicek applauded the court for considering the entire team environment rather than limiting its evaluation to how Mr. Dorrance directly interacted with Ms. Jennings.
The case also should alert all employers to follow their sexual harassment policies, Mr. Konicek said.
According to Mr. Konicek, UNC failed to follow its policy of referring sexual harassment charges to a school official outside of the department with the alleged problem.
A UNC spokesman said the school's policy gives a student the choice of having a claim investigated either by officials within a coach's department or by an independent student grievance committee.
Employer attorney Dona Kahn said she does not think that will be the issue that hurts UNC. Instead, the university's big legal problem is that "it didn't take prompt remedial action" against Mr. Dorrance, said Ms. Kahn, an attorney with Anderson Kill & Olick P.C. in New York.
A spokeswoman for the North Carolina attorney general's office, which is defending UNC, would say only that no decision has been made about appealing the ruling to the U.S. Supreme Court.
Mr. Dorrance's attorney did not return calls.
Melissa Jennings vs. University of North Carolina et al., 4th U.S. Circuit Court of Appeals, April 9; No. 04-2447.