Sexual Harassment In The Academy:
Some Suggestions For Faculty Policies & Procedures
By Donna R. Euben, AAUP Counsel
I. Federal Legal Standards of Sexual Harassment
Sexual harassment is a form of sex discrimination recognized under laws such as:
Title VII of the Civil Rights Act prohibits sex discrimination in the terms and conditions of employment.
Title IX of the Education Amendment prohibits sex discrimination with regard to educational programs and activities (applies most frequently to students).
The law categorizes two types of sexual harassment:
A. Quid pro quo
This type of sexual harassment occurs when the terms or conditions of employment, or educational benefits, are conditioned on the performance of sexual favors. The harassment involves an implied contract based on a power relationship. Accordingly, perpetrators must be agents or employees with some authority from the institution. The institution is automatically liable for such harassment.
B. Hostile Environment
An institution has a duty to provide a nondiscriminatory work and learning environment. A hostile academic environment exists when harassment is sufficiently severe, pervasive or persistent so as to limit or interfere with the terms and conditions of employment or educational benefits. A hostile environment can be created by anyone involved in a university program or activity--administrators, faculty members, students, and even guests. For a university to be liable for such harassment, it must generally receive some form of notice of the harassment and have failed to respond to it in a timely fashion. "Mere offensiveness" is not enough to constitute sexual harassment.
(a) In determining whether sexual harassment is severe, pervasive or persistent, courts consider the following factors ("totality of circumstances" test)
The nature, scope, frequency, duration, and location of an incident or incidents;
The identity, number, and relationships of persons involved;
The perspective of a "reasonable person" of the same age and gender; and
The nature of the higher education context and the educational mission.
Example: Gupta v. Florida Board of Regents: The federal appellate court ruled that a woman assistant professor of economics at Florida Atlantic University was not sexually harassed by the director-supervisor of her program. The supervisor's behavior included touching the professor's leg and dress (two incidents in a period of 7 months); making comments to her, such as "women are like meat" and "men need a variety of women"; and calling her at home 2-3 times a week. The court found that the supervisor engaged in "mere bothersome and uncomfortable conduct," but that it was not "severe or pervasive." Rather, the court found the supervisor's conduct as exemplifying "the ordinary tribulations of the workplace." 212 F.3d 571 (11th Cir. 2000), cert. denied, 121 S.Ct. 772 (2001).
(b) Types of conduct that may (but do not always) constitute or contribute to a hostile work environment:
Verbal: unwanted sexual teasing, jokes, remarks, or questions; unwanted comments on appearance; name-calling of a sexual or sex-based nature; pressure for dates or sexual favors.
Physical: unwanted sexual looks or gestures, unwanted deliberate touching, actual or attempted rape or sexual assault.
Written: unwanted suggestive notes or memos, pornographic material, or other materials of a sexual nature in the workplace.
Gossip: starting and spreading rumors about a person's sexual habits.
Example: Jew v. University of Iowa: False rumors that female professor had sexual relationship with department chair to obtain favorable treatment were found to constitute actionable sexual harassment. 749 F. Supp. 946 (S.D. Iowa 1990).
II. Institutional Liability for Sexual Harassment
In 1998 the Supreme Court focused on the nature of the harm caused by sexual harassment in employment situations. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Farragher v. City of Boca Raton, 524 U.S. 775 (1998).
The Court articulated the following liability standard under Title VII:
A. Colleges and universities will automatically be liable for sexual harassment by supervisors that culminates in tangible employment action, such as discharge, demotion, or undesirable reassignment.
B. Employers will automatically be liable for sexual harassment by supervisors that does not culminate in tangible employment action, unless:
The college or university exercised reasonable care to prevent or correct promptly any sexually harassing behavior; and
The "employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer."
Under Title IX, the U.S. Supreme Court has ruled that when students are harassed by faculty members, a college or university will be liable if a higher-level official--who at a minimum has authority to address the harassment and institute corrective measures on the school's behalf--receives actual notice of, and is deliberately indifferent to, faculty member misconduct. Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).
III. Some Issues to Consider in Sexual Harassment Policies Governing Faculty.
A. To Whom Does the Policy Apply?
Some institutions cover faculty, staff, and students in one policy; others provide separate policies for each segment of the academic community. On the one hand, it may be "cleaner" to draft policies for each constituency, since there may be different issues and rules applicable to each group (e.g., academic freedom for faculty). On the other hand, policies can often effectively address all groups if the language clearly and consistently speaks to the respective issues throughout the policy.
B. How is Sexual Harassment Defined?
1. Most policies modify the standard EEOC language to the academic setting. Sexual harassment policies should track the law and be applied so as to recognize the different types of opportunities and benefits at stake in the context of higher education.
2. Some policies provide examples of what is and is not harassment. If such examples are provided, they should be introduced as types of conduct that "may" constitute sexual harassment.
C. Protection of Academic Freedom
For a helpful article on how free speech and sexual-harassment policies can be harmonized, see Arthur L. Coleman and Jonathan R. Alger, "Beyond Speech Codes: Harmonizing Rights of Free Speech and Freedom from Discrimination on University Campuses," 23 J.C. & U.L. 91 (1996).
1. Some Policy and Legal Principles
AAUP policies recognize that academic freedom is not absolute in the sexual harassment context:
"Sexual harassment represents a failure in ethical behavior, and that sexual exploitation of professional relationships will not be condoned."
The U.S. Supreme Court has opined that sexual harassment can be distinguished from other behavior using "common sense, and an appropriate sensitivity to social context." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (finding actionable same-sex harassment under Title VII). In higher education, "an appropriate sensitivity to social context" requires recognition of the mission of a college or university as distinct from other workplaces, which include close working and mentoring relationships that often blur the lines between academic and social life." See generally Jonathan R. Alger, "Love, Lust and the Law: Sexual Harassment in the Academy," Academe: Bulletin Of The American Association Of University Professors 34 (Sept.-Oct. 1998). In higher education, the educational benefits protected by law include academic freedom.
Under principles of academic freedom, faculty members can use a wide variety of teaching techniques, and faculty and students can engage in the free and open exchange of ideas:"If [sexual harassment] takes place in the teaching context, it must also be persistent, pervasive, and not germane to the subject matter. The academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material." AAUP, Sexual Harassment: Suggested Policies & Procedures for Handling Complaints. <www.aaup.org/statements/Redbook/rbsexha.htm
The U.S. Department of Education's recently revised Title IX policy guidance on sexual harassment recognizes the need for educational institutions to "formulate, interpret, and apply [their] rules so as to protect academic freedom and free speech rights." Office of Civil Rights (OCR), U.S. Department of Education, "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties" 21 (January 2001) (Revised Guidance).
2. Some Institutional Policies
University policies prohibiting sexual harassment should and usually do recognize the educational mission and principles of free expression and academic freedom.
Tulane University: "This policy against harassment shall be applied in a manner that protects academic freedom and freedom of expression within the University. Academic freedom and freedom of expression include but are not limited to the expression of ideas, however controversial, in the classroom setting, academic environment, university-recognized activities, or on the campus. Nothing contained in this policy shall be construed to limit the legitimate exercise of free speech, including but not limited to written, graphic, or verbal expression that can reasonably be demonstrated to serve legitimate educational or artistic purposes nor shall this policy be construed to infringe upon the academic or artistic freedom of any member of the University." <www2.tulane.edu/main.cfm.
Stanford University: "Stanford is committed to the principles of free inquiry and free expression. Vigorous discussion and debate are fundamental to the University, and this policy is not intended to stifle teaching methods or freedom of expression generally, nor will it be permitted to do so. Sexual harassment, however, is neither legally protected expression nor the proper exercise of academic freedom; it compromises the integrity of the University, its tradition of intellectual freedom, and the trust placed in its members." < http://adminguide.stanford.edu/23_2.pdf.
3. Some Case Law
Example: Cohen v. San Bernardino Valley College: A student in Professor Cohen's remedial English class complained about the professor's use of vulgarities and obscenities in the class. The professor argued, in part, that the policy violated his academic freedom. The federal appellate court ruled that the sexual-harassment policy applied to tenured Professor Cohen was "void for vagueness." The court found that the institution failed to give the professor warning about the sexual-harassment policy; the policy delegated resolution of such complaints to "low level officials . . . on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"; and the "vague policy discourages the exercise of first amendment freedoms." 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997).
Example: Bonnell v. Lorenzo (Macomb Community College): The Sixth Circuit upheld the college's suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, alleging that he had repeatedly used lewd and graphic language in his English class. The court stated that, "[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student's right to learn in a hostile-free environment." The court found the professor's use of vulgar language "not germane to the subject matter." 241 F.3d 800 (6th Cir. 2001).
D. Prohibition Against Retaliation
In addition to the two categories of sexual harassment (quid pro quo and hostile work environment), retaliation against individuals seeking to protect their civil rights is prohibited by law and can serve as the basis for a separate complaint. See Section 704(a), Title VII.
Example: Howze v. Virginia Polytechnic University: The federal district court found that an associate professor of education was retaliated against by the university investigation committee's negative report, which criticized Professor Howze for using unprofessional methods to pursue her sex discrimination claims. The court opined that such a report "could hinder the plaintiff in obtaining research grants, endowed professorships, publications, and other similar accoutrements of a tenured professor." At the same time, the court also ruled that the institution's initial denial of tenure by the department, which faulted the professor for her lack of collegiality because she filed a sex discrimination lawsuit against the institution, did not constitute retaliation because "[p]laintiff was ultimately awarded her promotion and tenure and given pay and rank increases at the same time as other promotees." 901 F. Supp. 1091 (W.D. Va. 1995).
E. Protecting Confidentiality
In all cases, faculty and administrators should make clear that they seek to honor requests for confidentiality, but cannot guarantee it.
"Cases involving sexual harassment are particularly sensitive and demand special attention to issues of confidentiality. Dissemination of information relating to the case should be limited, in order that the privacy of all individuals involved is safeguarded as fully as possible." AAUP, Policies & Procedures.
The Office of Civil Rights (OCR) provides that "a school should be aware of the confidentiality concerns of an accused employee or student. Publicized accusations of sexual harassment, if ultimately found to be false, may nevertheless irreparably damage the reputation of the accused." Revised Guidance at 17.
F. Treatment of Anonymous Complaints
Anonymous complaints cannot be ignored. A university has an obligation to follow up on harassment allegations, even if they are anonymous. However, the extent of its responsibility cannot be greater than the extent of its ability to respond.
Recent OCR guidance on Title IX provides for the protection of federal due process rights in assessing an anonymous complaint: "Thus, for example, if a student, who was the only student harassed, insists that his or her name not be revealed, and the alleged harasser could not respond to the charges of sexual harassment without that information, in evaluating the school's response, OCR would not expect disciplinary action against an alleged harasser." Revised Guidance at 16.
University of Arizona: ". . . [B]ecause of the inherent difficulty in investigating and resolving allegations from unknown persons, individuals are discouraged from making anonymous complaints of sexual harassment. Although anonymous complaints are discouraged, the University will reasonably respond to all allegations of sexual harassment. . . . However, a reasonable response would not include disciplinary action against an alleged harasser if an accuser insists that his or her name not be revealed, if there is insufficient corroborating evidence, and if the alleged harasser could not respond to the charges of sexual harassment without knowing the name of the accuser."
G. Due Process Protections
Sexual harassment grievance procedures should protect the rights of both the complainant and the accused. See AAUP, Due Process in Sexual Harassment Complaints.
According to OCR, grievance procedures that comply with Title IX should provide for:
"Adequate, reliable and impartial investigation of complaints, including the opportunity to present witnesses and other evidence;
Designated and reasonably prompt timeframes for the major stages of the complaint process;
Notice to the parties of the outcome of the complaint."
Revised Guidance at 19.
Example: In Silva v. University of New Hampshire, the federal district court found that a question of material fact existed about whether "Silva received adequate notice that incidents not mentioned in the student complaints and incidents upon which no evidence was presented at the hearings would be considered by the hearing panel and appeals board in their determination of whether his conduct constituted sexual harassment." 888 F. Supp. 293, 322 (D.N.H. 1988).
H. Faculty Peer Review of Sexual Harassment Allegations Against Faculty Members
Faculty peer review is an important component of due process for faculty, and helps to ensure that the context of higher education is properly considered. There are some particular issues to consider for faculty members who serve on hearing committees:
Should faculty members serve on grievance panels if the sexual harassment allegation is against a colleague in their department?
If the sexual harassment allegation is against a faculty member who is also up for tenure, how does one ensure that the tenure and sexual harassment procedures are kept separate and, at the same time, ensure that the allegation is resolved before making the final tenure decision?
If the accused faculty member is up for tenure, should faculty members serve on grievance panels if they also serve on the promotion-and-tenure committee?
??Example: In Silva the district court found a faculty member on the appeals board to have been "not capable of judging the controversy before her on the basis of its own circumstances," and so there was a material fact about whether the "bias" of that faculty member who served on the hearing panel "compromised the impartiality and independence of the Appeals Board on which she sat so that Silva was not afforded a fair hearing." Silva asserted that the faculty member made a number of "outbursts" during the hearing, that she accused Silva of following her during a break time, and that after that incident, she "seated herself farther away" from Silva. 888 F. Supp. at 293.
But see Levitt v. University of Texas at El Paso, 759 F.2d 1224 (5th Cir. 1985) (rejecting professor's argument in sexual harassment case that because some members of faculty committee were biased professor was denied due process under the U.S. Constitution), cert. denied, Levitt v. Monroe, 474 U.S. 1034 (1986).
I. Provision of Informal Procedures
Existing Supreme Court rulings do not require that all complaints be made formally and in writing in the first instance. Often informal processes as a matter of first resort may be the most efficient and effective method to address sexual harassment in many instances. The DOE policy guidance provides that "[g]rievance procedures may include informal mechanisms for resolving sexual harassment complaints."American University: "American University is committed to the voluntary, timely, and informal resolution of sexual harassment complaints."
IV. Sexual Harassment Training for Faculty Members
Recent Supreme Court case law emphasizes the importance of preventive measures undertaken by an institution in defending itself against harassment claims. See Farragher and Ellerth; see also Hurley v. Atlantic City Police Department, 174 F.3d 95, 118-19 (3rd Cir. 1999), cert. denied, 528 U.S. 1074 (2000). In a 1997 survey of campus training programs on sexual harassment, a consulting firm found that roughly half of the surveyed institutions had no training programs. Tillinghast-Towers Perrin, Under-Managed Risk: Employment Claims Drive Rising ELL Occurrences and Costs (1997) (1-800-525-6741).
A. Some Suggestions on Structuring a Sexual Harassment Program for Faculty
Do not call the sexual harassment program "training." As Barbara Lee has opined, "Faculty believe that training is for dogs." Consider other titles, such as seminar, forum or program.
Use sexual harassment leaders familiar with the academy, including faculty members.
Consider "co-sponsoring" such a seminar with your faculty senate, women faculty group, or local AAUP chapter.
Encourage faculty attendance by a personal invitation by the dean and the dean's attendance; tracking attendance and engaging in aggressive followup for no-shows; and wine and cheese!
?B. Some Institutional Practices
Stanford University. As of 2000, the Sexual Harassment Policy Office coordinated seminars for 1400 faculty. These briefings are apparently delivered to departments, and faculty are "strongly encouraged" to attend.
University of Tulsa. As of 2000, the school had completed a 15-month sexual harassment training, which was not mandatory, that included all faculty and staff. The participation rate of faculty was around 67%.
Smith College. Starting in 1999 the college provided mandatory sexual harassment briefings for all faculty.
V. Consensual Relationships Policy
Recently there has been renewed interest in the topic of consensual relationship policies. See, e.g., Thomas Bartlett, "The Question of Sex Between Professors and Students," The Chronicle Of Higher Education (Apr. 5, 2002). There are basically three kinds of policies: absolute prohibitions, limited bans on faculty-student supervisory relationships, and strong discouragement.
AAUP recommends the following policy:
Sexual relations between students and faculty members with whom they also have an academic or evaluative relationship are fraught with the potential for exploitation. The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect. . . . In their relationships with students, members of the faculty are expected to be aware of their professional responsibilities and to avoid apparent or actual conflict of interest, favoritism, or bias. When a sexual relationship exists, effective steps should be taken to ensure unbiased evaluation or supervision of the student.
A variety of institutional policies exist:
The College of William and Mary "prohibits consensual romantic and/or sexual relationships between faculty members and undergraduate students as well as between faculty members and those graduate students for whom the faculty member has direct professional responsibility." <www.web.edu/eo/College_Policies.php
The University of Michigan does not prohibit such relationships, but provides that such relationships are "potentially exploitative and should be avoided."
The University of Iowa policy provides: "No faculty member shall have an amorous relationship (consensual or otherwise) with a student who is enrolled in a course being taught by the faculty member or whose academic work (including work as a teaching assistant) is being supervised by the faculty member." <http://www.uiowa.edu/~eod/policies/pol-on-consensual/pol-consensual-full.html
At Ohio Northern University, "faculty and staff members should not have sexual relations with students to whom they are not married."
The Duke University policy provides that: (1) any situation of authority be terminated when a consensual relationship between a student and a professor exists or develops; and (2) the relationship be disclosed to the faculty member's supervisor.
In practice, absolute prohibitions may be difficult to enforce. For a thoughtful essay, see Sheppy Young, "Getting to Yes: The Case Against Banning Consensual Relationships in Higher Education." 4 Am. U.J. Gender & Law 269 (Spring 1996). See also Patrick Dilger, "Putting An End to Risky Romance," Yale Magazine 30 (Apr. 1998) (discussing Yale University's policy).
Know the law - be aware of what conduct constitutes sexual harassment.
Know your institutional policies and procedures - inside and out.
Disseminate your institution's sexual harassment policy widely.
Provide seminars to faculty on the issue of sexual harassment.