Sexual Harassment In Higher Education: Current Issues And Trends

Education Law Association
Memphis, Tennessee
November 19, 2005

I.   Sexual Harassment Training:  What Works?

Theresa M. Beiner, Nadine H. Baum Distinguished Professor of Law, University of Arkansas at Little Rock, William H. Bowen School of Law

Since the United States Supreme Court’s decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), employee training has become a key component for employers seeking to take advantage of the affirmative defense for supervisor sexual harassment established by those cases.  However, social science studies on training programs reveal that not all training methods may reduce or eliminate sexual harassment, and, in some cases, training may actually be counterproductive to reducing sexual harassment in the workplace.  Thus, when it comes to employer training programs, two issues arise:  (1) what types of training programs will help an employer satisfy the defense under Ellerth/Faragher or otherwise aid an employer in defending a sexual harassment suit; and (2) what types of training programs will actually help reduce sexual harassment in the workplace.  Unfortunately, the answer to these two questions is not necessarily the same, and employers may use training programs to defend a sexual harassment case in situations where their training program is very unlikely to have an effect on the level of sexual harassment in the workplace.

 A. Training in the Courts

In Ellerth and Faragher, the Court stated that an employer may defend a case of sexual harassment by a supervisor that does not include a tangible employment action by showing “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”  Faragher, 524 U.S. at 807; Ellerth, 524 U.S. 765.  Employee training programs are relevant to this defense in a variety of ways.  First, a training program can prevent supervisors from taking “tangible employment actions” against harassed employees, which result in an employer losing the ability to establish the defense.  In addition, employee training programs are relevant in two ways to the first prong of the defense – (1) whether the employer exercised reasonable care to prevent harassment and (2) whether the employer made reasonable attempts to correct harassment.  Training can be used to educate and stop employees from sexually harassing before incidents take place, thereby acting as “prevention.”  Training can be used to educate a harasser, in an attempt to correct his behavior.  Training also can be relevant to the second prong – whether the employee took advantage of reasonable opportunities to complain.  Because training can educate employees on what is sexual harassment as well as how to use any internal employee complaint process, an employer can point to training on this point to show that the employee had ample opportunity to complain and knew about the complaint process, but failed to use it.  Finally, training can be used to counteract a prayer for punitive damages.  Since the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), employers can point to training programs to show that it “engage[d] in good faith efforts to comply with Title VII,” and thus provide a shield from punitive damage awards.  See, e.g., Woodward v. Ameritech Mobile Communications, Inc., 2000WL 680415, at *16 (S.D. Ind. Mar. 20, 2000); Hull v. APCOA/Standard Parking Corp., 2000 WL 198881, at *15 (N.D. Ill. Feb. 14, 2000).

For the most part, courts have mentioned training programs only in passing – without going into too much detail about what types of programs might satisfy the first element of the defense.  Instead, the key component to proving the first element of the defense has been the existence of an employee complaint process for sexual harassment.  See, e.g., Caridad v. Metto-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999); Shaw v. Autozone, 180 F.3d 806, 811 (7th Cir. 1999).  Occasionally, however, a court has used the lack of employer training as one factor (generally among others) that suggests that the employer did not take reasonable care to prevent harassment.  See, e.g., Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1028 (10th Cir. 2001).  However, no court appears to have made training absolutely necessary to satisfy the defense.  See Joanna L. Grossman, The Culture of Compliance:  The Final Triumph of Form over Substance in Sexual Harassment Law, 26 Harv. Women’s L.J. 3, 13 &n.49 (2003) (citing cases).  Some state laws, however, do require it.  See Grossman, supra, at 13 n.50 (listing state laws). 

In addition to being helpful in terms of prevention, other courts have acknowledged that training shows that an employer corrected harassment.  See, e.g., Mirakhorli v. DFW Mgmt. Co., 1999 WL 354226, at *5 (N.D. Tex. May 24, 1999); Kohler v. Inter-Tel Techs., 1999 WL 226208, at *3 (N.D. Cal. Apr. 13, 1999).  However, training alone may be insufficient.  For example, in Baty v. Willamette Inc., 172 F.3d 1232 (10th Cir. 1999), abrogated on other grounds by Boyler v. Cordant Tech., 316 F.3d 1137 (10th Cir. 2003), the court of appeals upheld a $360,000 damage award in favor of an employee who was repeatedly harassed by her supervisors and co-workers.  After receiving her complaint, the regional personnel manager conducted two 45-minute training programs on sexual harassment, which included instruction on sexual harassment law and “examples of sexual harassment” and showing a video.  Id. at 1242.  The manager also “reminded everyone that Willamette would not tolerate sexual harassment, and that such conduct would be severely punished, including termination.”  Id.  However, no discipline was ever imposed.  Under these circumstances, the court of appeals agreed with the district court that “the jury could reasonably have concluded that the small amount of training given the employees was inadequate in light of the severity of the problem.”  Id.  Thus, training, without more discipline of harassers, may not be viewed as adequate to correct sexual harassment.

While training standing alone may not always provide an employer with a defense, from a litigation standpoint, it appears to be a very effective tool in many instances for avoiding liability.

B. Sexual Harassment Training that “Might” Work

While courts have assumed that sexual harassment training is a worthwhile preventive measure that helps employers meet the Ellerth/Faragher affirmative defense, it is less clear what type of sexual harassment training actually helps eliminate sexual harassment in the workplace.  As one legal commentator has explained, “There is, in light of currently available research, absolutely no scientific basis for concluding that harassment training fosters employee tolerance and greatly alters workplace culture.”  Susan Bisom-Rapp, Fixing Watches with Sledgehammers: The Questionable Emrace of Employee Sexual Harassment Training by the Legal Profession, 24 UALR L. Rev. 147, 164 (2001); see also Susan Bisom-Rapp, An Ounce of Prevention is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law, 22 Berkeley J. Emp. & Lab. L. 1 (2001).  Thus, when it comes to implementing a training program that will actually help end sexual harassment – as opposed to training that will forestall a lawsuit -- it is far from clear what actually works, although there are some preliminary indications. 

Sexual harassment training can be used for a variety of purposes, including (1) informing employees about the employer’s sexual harassment grievance process; (2) increasing knowledge about sexual harassment; (3) eliminating inappropriate behavior; and (4) changing the attitudes of those who are likely to sexually harass.  See Bisom-Rapp, Ounce of Prevention, supra, at 31.  Most studies of sexual harassment training involve knowledge acquisition, although some also undertake to determine whether attitudes can be changed. 

Studies have shown that training does help people, and particularly men, identify behaviors as sexual harassment.  In a study by Blakely, et al., participants viewed a training video on sexual harassment and participated in a classroom discussion about the video.  Six weeks later, they completed a questionnaire measuring their perceptions of sexual harassment.  A control group completed the same questionnaire.  The questionnaire included a variety of scenarios of harassing behavior, ranging from very mild (innocuous) to severe.  The results of the training were mixed.  The group that went through the training program rated more severe behavior as more harassing than did the control group, but training had less effect on perceptions of ambiguous behaviors and no effect on ratings of innocuous behaviors.  See Blakely et al., The Effects of Training on Perceptions of Sexual Harassment Allegations, 28 J. Applied Soc. Psychol. 71, 77 (1998).  The study also showed that gender differences in perceptions were reduced by training.  Males who were trained were more likely to agree with women that ambiguous behaviors were harassing.  See id. at 79. 

Other studies also have shown that training may be more effective for men.  Using a method that compared perceptions of experts to those of study participants, Moyer and Nath separated participants into three exposure groups: those with no training exposure; those who received a training poster as well as a written anti-harassment policy; and those who received the poster, the policy, and two written tests with feedback.  In addition, each group was asked to evaluate written scenarios before and after receiving the training materials.  A training effect was found, whereby the three-exposure group was more expert at identifying sexual harassment than the group that received the poster and written policy, and both trained groups identified sexual harassment more expertly than the control group.  Robert Moyer & Anjan Nath, Sexual Harassment Training Interventions, 28 J. Applied Soc. Psychol. 333, 342 (1998). This effect, however, depended on gender.  Whereas untrained women were more expert in identifying sexual harassment than untrained men, men were more likely to improve their assessments based on training than women.

This male training effect also has an impact on men who are likely to sexually harass.  Psychologist John Pryor developed an inventory that assesses whether men are likely to engage in quid pro quo sexual harassment if there are no repercussions for engaging in such behavior.  See John B. Pryor, Sexual Harassment Proclivities in Men, 17 Sex Roles 269, 272-74 (19897).  Called the “likelihood to sexually harass” scale, or LSH, Perry et al. considered this scale in a study of the efficacy of certain types of training.  The training consisted of a commercially available sexual harassment training video.  This study measured both knowledge acquisition and whether the training had an effect on subsequent behavior.  In particular, participants watched the video, then watched a golf video, and finally were told to teach a female associate how to putt.  Researchers observed the golf lesson to assess differences in levels of inappropriate touching between trained and untrained men.  The video did improve knowledge and reduce inappropriate touching, but did not affect long-term attitudes with respect to the propensity to harass.  The training in particular reduced inappropriate touching by high LSH men, but not low LSH men.  Without the training, high LSH men knew less about harassment and engaged in more inappropriate touching than low LSH men.  Elissa L. Perry et al., Individual Differences in the Effectiveness of Sexual Harassment Awareness Training, 28 J. Applied Soc. Psychol. 698, 716 (1998).  Thus, training may change behavior of the men most likely to sexually harass, but it does not necessarily change attitudes.

Another study is noteworthy because it was conducted in the context of academia.  Bingham and Scherer studied the effectiveness of a sexual harassment training program implemented by a metropolitan university.  They looked to see if the training had an effect on five outcomes:  “knowledge about sexual harassment, perceptions of potential sexual harassment, willingness to report sexual harassment, attributions of blame for sexual harassment, and attitudes toward sexual behavior at work.”  Shereen G. Bingham & Lisa L. Scherer, The Unexpected Effects of a Sexual Harassment Educational Program, 37 J. Applied Behav. Sci. 125, 127 (2001).  The training consisted of a 30-minute program with three parts:  (1) a 3-minute speech by the chancellor; (2) a hand out and oral presentation by mixed-sex, two person university staff and faculty teams; and (3) a 5-minute discussion.  Id. at 129.  While the training did increase knowledge about sexual harassment and affected attitudes toward whether sexual behavior was inappropriate at work, it did not broaden employees’ perceptions of what constitutes sexual harassment.  In addition, and somewhat disturbingly, “[m]ale participants were significantly less likely than male nonparticipants to view sexual coercion of a subordinate or student as sexual harassment, to be willing to report sexual harassment, or to direct blame away from the victim.”  Id. at 142-43.  “The authors’ posit that the male participants may have reacted defiantly to the university’s efforts in the first of these scenarios (viewing sexual coercion of a subordinate as sexual harassment) because of the perceived threat that such conduct would be punished.”  The authors suggest that part of the problem may have been the content of the program.  They are cautionary:  “Our findings also should raise awareness that educating employees about an organization’s sexual harassment policy can be threatening to them and may lead to negative reactions.”  Id. at 145.  Thus, it is clear that an employer must be cautious and develop an appropriate training program for the particular workplace.

While these and other studies do provide some empirical support for the use of training to curb sexual harassment (for more on other studies, see Theresa M. Beiner, Gender Myths v. Working Realities:  Using Social Science to Reformulate Sexual Harassment Law at 155-57 (NYU 2005); Grossman, supra), there remain significant problems that are unresolved.  While training may improve perceptions about what is harassment, it is not necessarily the case that improved perceptions result in less harassment when people are actually working.  It also is not clear how lasting training effects are or whether improved perceptions dissipate over time.  In addition, researchers have cautioned that there may well be bad effects as a result of training.  Increased awareness of sexual harassment may render male supervisors more hesitant to engage in mentoring of women for fear of having their behaviors misperceived.  See Grossman, supra, at 48-49 & n. 282 (citing examples).  Mandatory training, including “diversity” training, may also cause resentment in participating employees.  See Barbara A. Gutek, Sexual Harassment Policy Initiatives, in Sexual Harassment: Theory, Research, and Treatment (William O’Donohue, ed. 1997), at 195; Bisom-Rapp, Ounce of Prevention, supra, at 41-44.  As one set of researchers summed up, “[U]ntil education and training interventions can be shown to actually reduce the incident of sexual harassment, it would be unwise to attach much practical significance to the present line of inquiry.”  Moyer & Nath, supra, at 347.

II.  Tension Between Desires For Confidentiality And An Employer’s Obligation To Take Corrective Action To Prevent Sexual Harassment

Martha S. West, Professor of Law, University of California, Davis

When women report sexual harassment to their employer, they often request that their complaint be kept “confidential.”  [I describe complainants as women and use the male pronoun for accused harassers because approximately 90% of sexual harassment charges are filed by women complaining about harassment by men.]  Women are afraid of coming forward and fear retaliation.  They are also embarrassed.  Talking about sexual activity of any kind, even hostile sexual comments, in a work environment is very difficult for most people because we regard sexual issues as intensely private.

Employers often promise confidentiality in presenting their sexual harassment policies, in part, to encourage women to come forward with complaints.  Both employers and complainants rely on the strong tradition in American employment of attaching confidential status to personnel issues.  Furthermore, employers want to keep sexual harassment complaints confidential to avoid disruption in the work place, the type of normal distraction that occurs when others find out about such out-of-the-ordinary events. 

Promises of confidentiality when accepting sexual harassment complaints, however, are problematic, and, in fact, may contradict an employer’s obligations under federal law.  Since 1980, when the EEOC issued its Guidelines on Sexual Harassment, employers have been obligated to take “immediate and appropriate corrective action” to respond to sexual harassment complaints and prevent any further harassment from occurring.  Employers must do something—investigate, talk to any witnesses, reassign duties to avoid contact between the employees involved, sometimes place someone on leave.  As a result of these actions, other employees find out that something has happened. 

In the public university setting, it is even more difficult to keep an employee’s sexual harassment complaint “confidential” because the person accused of sexual harassment has due process rights under the federal (and state) constitution and has a right to know about any accusations of wrongdoing filed against him.  Under due process rights enjoyed by permanent public employees, and under most university policies, those accused of wrongdoing have a right to defend themselves, including notice of the charges against them and access to any evidence, including the questioning of any witnesses.  Thus, if any action is taken against someone found to have harassed a student or another employee, full disclosure of the circumstances surrounding the sexual harassment complaint is required. 

The EEOC offered employers advice on how to deal with confidentiality requests in its 1999 Guidance on Employer Liability.  The EEOC suggests that employers offer confidentiality to complainants “to the extent possible,” but reminds employers that they cannot guarantee complete confidentiality given their obligation to conduct an effective investigation.  The EEOC suggests that information about an allegation of harassment “should be shared only with those who need to know about it.”  The EEOC warns that inaction by a supervisor who learns of harassment and fails to act creates greater liability for the employer.

Examples of harassment policies that extend only limited confidentiality protection include:

  1. A private employer’s policy that read “all information regarding any specific incident will be kept confidential within the necessary boundaries of the fact-finding process.” 
       
  2. The University of California Davis policy, which reads “UC shall protect the privacy of persons involved in a report of sexual harassment to the extent possible under law and UC policy.  UC will comply with requests for confidentiality if possible, but may need to make disclosures in order to carry out a complete and fair investigation and ensure a working and learning environment free from sexual harassment.

In training sexual harassment advisors at UC Davis, advisors are told to inform potential complainants, before receiving information about the harassment, that once the complainant gives them information identifying the alleged harasser, the advisor will be obligated to take action, limiting the confidentiality of the complainant’s accusation.

While extending promises of only limited confidentiality to complainants, employers should reassure frightened women that law and policy protect them from retaliation, that the employer is obligated to do what it can to make sure they suffer no adverse consequences for bringing forward their complaint.  Although promises of protection from retaliation may not be trusted by many complainants, it is one way employers can counteract the effect of limited confidentiality.

Not only do complainants often request confidentiality when coming forward with an allegation of sexual harassment, but at the end of the process, after an employer had determined that sexual harassment has occurred, the person who committed the sexual harassment wants to make sure that his subsequent discipline remains confidential.  Although employers would like to keep this information secret, it not always possible or even advisable for them to do so.

If an employee is terminated for sexual harassment, those employees who work with that person will know something has happened.  In a small workplace, such information will not remain confidential for long.  Although employers are reluctant to tell the remaining employees what has happened, they should use the termination as an opportunity to let the remaining employees know that the employer does take sexual harassment seriously and will do what it can to prevent it from happening again.  Furthermore, any disciplined employees’ interest in secrecy is outweighed by the employer’s obligation to correct the harassment and prevent future harassment from occurring.  Once an employer conducts an adequate investigation, determines that harassment has occurred and disciplined the harasser, the EEOC agrees that the harasser has no viable claim against an employer for releasing relevant information to other employees about the incident and its resolution.

Legal claims filed by terminated harassers against employers for defamation or intentional infliction of emotional distress have been unsuccessful.  A “qualified privilege” protects workplace communications among supervisors and employees, and communications made in the normal course of business are “privileged,” shielding the employer from liability for defamation.  In ruling against harassers’ subsequent lawsuits, federal courts have emphasized the employer’s obligation to correct and prevent further sexual harassment from occurring by informing employees about the results of sexual harassment investigations and remedies taken.     

In my view, employers should make greater efforts to inform employees about the employer’s history of investigating and correcting sexual harassment incidents that have occurred.  Such information about past actions taken will help convince women that, in fact, it would be safe to tell the employer about the sexual harassment they are experiencing.  We need to lift the lid of secrecy that surrounds sexual harassment and recognize it as an unfortunate but too common form of misconduct at work.  A finding of sexual harassment need not always result in a termination, but if the harasser is not terminated, then those employees who will continue to work with him need to be informed about his discipline so that they make sure that they not suffer from any future harassment from him.  Giving employees adequate information to protect themselves is necessary if the employer chooses not to terminate the harasser.   

III.  Other Recent Legal Developments

Donna R. Euben, Staff Counsel,  American Association of University Professors

A.  Prohibition Against Retaliation:  The Higher Education Context

 Retaliation against individuals seeking to protect their civil rights is prohibited under Section 704(a) of Title VII of the Civil Rights Act, and can serve as the basis for a separate complaint from that of discrimination. 

Howze v. Virginia Polytechnic Institute and State University: The federal district court found that an associate professor of education was retaliated against by the university investigating committee’s negative report, which criticized Professor Howze for having used 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).

Nelson v. University of Maine System:  Edwin Jessiman, a tenured professor at the University of Maine at Machias, sued his university for retaliation after he filed a sexual harassment complaint regarding his colleagues’ treatment of students.  Jessiman alleged that the university’s internal review of the complaint defamed him and that the university president wrote him a letter of reprimand for having filed the complaint.  Although the court recognized that an adverse employment action need not rise to the level of discharge to be actionable, it held that “mere criticism of an employee” is not an adverse employment action. The court found that the university’s actions did not injure Jessiman’s employment status because he was not criticized by a formal committee, the criticism was expressed in a letter to Jessiman (as opposed to a committee report), the letter was later removed from his file, no action was taken against him because of the letter, the reprimand was not widely circulated, and Jessiman continued to enjoy the full benefits of a tenured professor.  923 F. Supp. 275 (D. Me. 1996). 

The U.S. Supreme Court recently interpreted Title IX to encompass claims by individuals, including educators, who assert that they have been retaliated against because they complained about sex discrimination on behalf of their students.

Jackson v. Birmingham Board of Education:  In a 5-to-4 decision, the Court held that Title IX encompasses protection against retaliation by “indirect” victims. The decision notes that “if Title IX’s private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.” In so ruling, the Court observed that “teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.” The Court remanded the case to a lower court for further fact-finding consistent with its reasoning.  125 S.Ct. 1497, 161 L.Ed.2d 361, 73 USLW 4233 (U.S. 2005).1 

As the U.S. Department of Education has recognized, professors are "in the best position to prevent harassment and to lessen the harm to students, if, despite their best efforts, harassment occurs." Revised Sexual Harassment Guidance, 65 Fed. Reg. 66091, 66098 (2002).  The Jackson decision provides additional protection and encouragement to the professoriate, especially nontenured faculty and academic professionals, in raising and reporting perceived discrimination of their students without jeopardizing their job security.  We will need to monitor how the courts apply this decision in higher education.

B. Misconduct Accusations, Including Sexual Harassment Allegations, During Tenure Reviews

 What should happen when misconduct allegations—of sexual harassment for example—arise about candidates during their reviews for tenure, promotion, or reappointment? The academic and legal issues are complex, and the outcome relies, to a great extent, on institutional policies and practices, to the extent they exist.

Tacka v. GeorgetownUniversity:  While the tenure application of Philip Tacka, an assistant professor of music at Georgetown University, was pending, he learned that an outside evaluator had accused him of plagiarism in critiquing the professor’s scholarship. The faculty handbook at Georgetown provided that plagiarism charges be investigated by a research integrity committee, and Tacka requested that his tenure consideration be delayed until after such investigation. Nevertheless, the departmental committee convened and rejected his tenure bid, as did the promotion and tenure committee. Only after Tacka received the negative tenure decision was the plagiarism charge forwarded to the research integrity committee, which found no merit to it. A grievance panel reached the same conclusion. A year later, Tacka was awarded tenure.   Tacka sued the university, raising a number of legal claims, including breach of contract. He argued that the institution failed to follow its own faculty handbook, which is an enforceable contract under District of Columbia law, in two ways: by failing to refer the plagiarism charge immediately to the research integrity committee, and by dealing with the misconduct allegation in his tenure review before forwarding the claim to the research integrity committee. The administration responded that “neither the handbook nor common practice at Georgetown University requires suspension of a tenure review process when an allegation of academic dishonesty, such as plagiarism, is received.”  In allowing the professor’s suit to continue, the court found the handbook “clear in requiring allegations of plagiarism to be addressed through the exclusive mechanism of the Research Integrity Committee.” At the same time, the handbook was “less clear—and . . . in fact silent—on the issue of whether a tenure review must be halted when an allegation of plagiarism is received.” The court opined, however, that “[a]dherence to the proper procedure likely would have resulted in suspension of the tenure review process.” In so reasoning, the court found the conclusions of the committee and grievance panel “germane and helpful” in interpreting the ambiguous faculty handbook provisions.  193 F. Supp. 2d 43 (D.D.C. 2001).2

An AAUP investigation of a case at the University of Southern California in 1996 provides guidance to institutions seeking to separate tenure reviews from misconduct charges.  Academe:  Bulletin of the American Association of University Professors 40 (Nov.-Dec. 1995).  The Association's investigating committee considered the pending reappointment of a professor who was charged with misconduct, and stated that "[i]t would be irresponsible for a university to confine itself to the letter of the stated criteria for reappointment, ignoring allegations of academic misconduct." At the same time, the committee found that "[a]ppropriately careful assessment" required that the faculty member be provided with specific allegations in writing, adequate time to respond to those charges, and an opportunity to appear before the decision-making committee. In the end, the best policy should seek to ensure that academic appointment decisions are not improperly tainted with unproven allegations of misconduct.

C.        Workplace Romances:  The “Untargeted Victim” Theory

In a case that captured the mainstream media headlines, the California Supreme Court recently ruled that under state law supervisors who have affairs with subordinates can create a work climate that constitutes sexual harassment for the “uninvolved” employees.3

Miller v. Department of Corrections: Former employees at the Valley State Prison for Women in Chowchilla, California, who complained about then-warden Lewis Kuykendall, who was sexually involved with at least three women employees at the same time.  Two other female employees, Edna Miller and Frances Mackey, sued the state’s department of corrections, arguing that they were denied promotions and opportunities because of the warden’s favoritism toward his lovers. The court ruled against the women, finding that they “were not themselves subjected to sexual advances and were not treated any differently than male employees.” 

On July 18, 2005, the California Supreme Court unanimously reversed the lower court in interpreting the state’s anti-discrimination law.  Tracking the language of EEOC guidance,4 the court reasoned that while an isolated incident of favoritism would not ordinarily establish harassment, when that favoritism is so widespread “that the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that they way required for women to get ahead in the workplace is by engaging in sexual conduct.”   36 Cal. 4th 446 (Cal. 2005).
Some courts have embraced, at least to some extent, the “untargeted victim” theory under federal and state laws.5    Other courts have rejected the proposition that others may suffer sexual harassment by the consensual affairs of others in the workplace.6


At least one court has considered the untargeted victim theory in the academic setting: 

Wilson v. Delta State University, William Wilson, director of the university’s audio-visual center, sued for retaliation under Title VII after his position was eliminated and his contract not renewed.  According to Wilson, his position was terminated because he reported to the university’s president that his supervisor, Dr. Michelle Roberts, was unqualified for her position, and that she had only received the appointment because she was having an affair with an administrator at the university.  Wilson argued that when he divulged the affair to the president, he was engaged in protected activity.  The federal appellate court rejected the untargeted victim theory: “When an employer discriminated in favor of a paramour, such an action is not sex-based discrimination, as the favoritism, while unfair, disadvantage both sexes alike for reasons other than gender.”  In so doing, the court established that discrimination in favor of a paramour was not “an unlawful employment practice,” and thus, Wilson’s revelation about the affair could not have been a protected activity.  Accordingly, the court concluded that the district court had properly granted the university’s motion for judgment as a matter of law.  2005 U.S. App. LEXIS 16964 (5th Cir., Aug. 12, 2005).  

“A ‘small minority’ of employment policies requires disclosure of office relationships . . . and some companies require written acknowledgements by the parties that the affair is consensual, to avoid subsequent claims of quid pro quo harassment.”7  It is unclear if and how the Miller decision may influence institutional policies at colleges and universities.  Many institutions already have consensual relationship policies in place, but most do not absolutely prohibit such relationships, but rather discourage them, requiring disclosure and withdrawal of the professor from any supervisory role over the student.8

End notes:

1. The AAUP’s amicus brief in the Jackson case is available .(pdf ) Back to text

2. Other cases exist that have involved sexual harassment allegations during the tenure review process, but the decisions have not directly addressed the issue.  See, e.g., Kobluk v. Univ. of Mn.,  574 N.W.2d 436 (Minn. 1998) (addressing the scope of attorney-client privilege, and declining to examine the appropriateness of tenure review process when misconduct claims were included in tenure file of candidate, who was ultimately denied tenure); Koerselman v. Rhynard, 875 S.W.2d 347  (Tex. App. 1994) (ruling that department chair was immune from defamation suit by tenure candidate in case involving tenure and misconduct allegations when faculty reviewing tenure file asked department chair about "rumors of sexual harassment charges" and "class complaints of a sexual nature” about the candidate).  See generally Donna R. Euben, “Misconduct Accusations in Tenure Reviews,” Academe 78 (Jan.-Feb. 2003).Back to text

3. See, e.g., Lucy Kellaway, “Discrimination Has Been Defeated: We Can All Be Victims Now,” Financial Times (July 25, 2005) (available at 2005 WLNR 11612641); Mireya Navarro, “Love the Job? What About Your Boss?”, New York Times (July 24, 2005) (available at 2005 WLNR 11580991); Maura Dolan, “Employees Can Sue Over Co-Workers’ Sex With Boss”, Los Angeles Times (July 19, 2005) (available at 2005 WLNR 11262755).Back to text

4. The EEOC’s “Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism” provides:  “[I]f favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.”  Back to text

5. See, e.g., Ritchie v. Dep’t of State Police, 805 N.E.2d 54, 60-61 & n.14 (Mass. App. Ct. 2004) (recognizing that “the third-party hostile environment claim . . . presents a relatively novel theory of recovery,” but admitting that “there may be cases where the facts and circumstances of the favoritism and the office paramour’s conduct rise to the level of creating a sexually hostile environment”); Erickson v. Marsh & McLennan Col, 569 A.2d 793 (N.J. 1990) (interpreting New Jersey’s anti-discrimination law to allow claims for third-party sexual harassment but requires element of coercion). Back to text

6. See, e.g., Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 733 (7th Cir. 2002) (internal citation omitted) (“Title VII does not prevent employers from favoring employees because of personal relationships.  Whether the employer grants employment perks to an employee because she is a protégé, an old friend, a close relative, or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.”). Back to text

7. Helen Irvin, “Harassment Without Harassment?  Employee Protection From Co-Worker Affairs Debated,” 74 U.S. Law Week 8, 2115 (BNA, 8-30-05).Back to text

8. Colleges and universities have the authority to establish consensual relationship policies, but are not required to do so.  See, e.g., Giffin v. Case Western Reserve Univ., 181 F.3d 100 (6th Cir. 1999) (holding that Title IX does not require a university to have a consensual relationship policy).  Moreover, Title XI does not generally give rise to the type of “actual notice” required under Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274 (1998), for sexual harassment liability.  See, e.g., Liu v. Stiuli, 36 F.Supp.2d 452 (D.R.I. 1999) (ruling that knowledge by supervisors of consensual relationship policy not enough to put college on notice of sexual harassment without actual notice to an appropriate official).Back to text