Sexual Harassment Guidelines

The AAUP applauded recent efforts by the Department of Education’s Office for Civil Rights to address systemic gender inequalities in the US educational system by instructing institutions to develop clear procedures to address sexual harassment and violence.

In two letters sent to the Office for Civil Rights over the summer, the AAUP’s staff and president and the chair of the AAUP’s Committee on Women in the Academic Profession also expressed concern about two aspects of the advice the office issued to institutions in April.

The first matter of concern is the suggestion that in order for an institution’s grievance procedures to be consistent with Title IX standards, the institution must use a “preponderance of evidence” standard, demonstrating that it is more likely than not that sexual harassment or violence occurred. Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, the AAUP believes, in cases where the administration needs to show cause for imposing a severe sanction, that the “clear and convincing” standard of evidence—demonstrating that it is highly probable or reasonably certain that the sexual harassment or violence occurred—is the appropriate standard. The Association’s widely adopted Recommended Institutional Regulations on Academic Freedom and Tenure provides that, in dismissal cases, “the burden of proof that adequate cause exists rests with the institution and will be satisfied only by clear and convincing evidence in the record considered as a whole.”

A second matter of concern is the potential for violation of the academic freedom of those faculty members who teach courses that directly address sex and sexuality. Courses on topics such as the literature of HIV/AIDS or human sexuality might make some students uncomfortable while also being necessary for their education.

The AAUP supports the contention of the Office for Civil Rights that “schools need to ensure that their employees are trained so that they know to report harassment to appropriate school officials, and so that employees with the authority to address harassment know how to identify and report sexual harassment and violence.” The AAUP would add that any training for faculty, staff, and students should explain the differences between educational content, harassment, and “hostile environments” and that a faculty member’s professional judgment must be protected.

The AAUP’s Sexual Harassment: Suggested Policy and Procedures for Handling Complaints (1995) provides the following guidelines for identifying speech or conduct that constitutes sexual harassment: “Such speech or conduct is reasonably regarded as offensive and substantially impairs the academic or work opportunity of students, colleagues, or co-workers. If it 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.”