Preventing Harassment in the Academic Setting/Workplace

A short course in identifying and confronting sexual harassment in the workplace and the academic setting.

Outline

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I. What is Harassment?

Quid Pro Quo; Hostile Environment

II. Liability

Individual; Sources; Categories; Hostile Environment

III. Preventing Harassment

Avoiding Harassment; Corrective Actions; Investigation; Factors; Remedies; Discipline

I. What is Harassment?

• Conduct: Behavior, acts and perceptions • Quid Pro Quo • Environment: Visual, physical and verbal • Hostile • Abusive

Sexually Harassing Conduct

 Can consist of:

VISUAL

 Posters  Cartoons  Elevator Eyes  Leering

PHYSICAL

 Hugs  Massage  Gifts  Touching  Blocking Paths

VERBAL

 Sexual  Comments: Girl, Hunk, Babe Jokes  Cat Calls  Whistling

Forms of Unlawful Harassment

       • Sex • Race/National Origin/Color • Disability • Religion • Marital Status • Age • Sexual Orientation

Types of Harassment: Quid Pro Quo

 • Quid Pro Quo: Explicit or implicit conditions for successful participation in an education program or employment. Includes submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature, in exchange for grades or advancement.

Quid Pro Quo

(Something for something)  Adverse action: Benefits promised in exchange for sexual favors or denied if sexual favors are not given.

Quid Pro Quo

 Factors:   • Was sexual conduct unwelcome?

• Objectively harassing, i.e., would a reasonable person in the accuser’s position believe s/he was the victim of quid pro quo harassment?

 • Did the alleged harasser intend to subject the accuser to quid pro quo harassment?

 • Is there a nexus between a discussion about academic or job benefits and a request for sexual favors?

Hostile Environment

 Sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a person's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational or working environment.

Hostile Environment in the Education Context

 Sufficiently severe, persistent, or pervasive to:  • Limit ability to participate in or benefit from an education program or activity, or  • Create a hostile or abusive educational environment

Effects of Harassment

       •Creates divisiveness • Impedes education • Promotes loss of respect • Perpetuates fear • Enhances interpersonal conflict • Destroys morale • Increases absenteeism & turnover • Creates costly and unnecessary litigation

All Employees Are Personally Responsible

 Since January 1, 2001 California law has provided that individual employees at all levels within an organization not just supervisors and managers-are

personally liable

for any sexual harassment in which they engage.  In addition, if the employer concludes, based on its own investigation, that an employee engaged in sexual harassment it does not provide legal representation for any lawsuit filed against that employee.  This means that you would need to rely on your own assets to cover the costs of an attorney and to pay any judgment.

Sexual Harassment: The Law

      •Title VII • California Fair Employment and Housing Act (FEHA) • Title IX • California Education Code 212.5 • Tort Law • Case Law

Title VII

 Title VII does not explicitly mention sexual harassment. The Supreme Court made clear, however, in its landmark 1986 decision in Meritor Savings Bank v. Vinson that Title VII prohibits sexual harassment, for it is a form of illegal sex discrimination.

Fair Employment and Housing Act (FEHA)

     •Unwanted sexual advances • Offering employment benefits in exchange for sexual favors • Making or threatening reprisals after a negative response to sexual advances • Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters • Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes

FEHA

 • Verbal sexual advances or propositions  • Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations  • Physical conduct: touching, assault, impeding or blocking movements

Title IX

 Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations: No individual may be discriminated against on the basis of sex in any education program or activity receiving Federal financial assistance. Sexual harassment of students is a form of prohibited sex discrimination.

Education Code 212.5 et. Seq.

 2.1 Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:  2.1.1 Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

Tort Law

 Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. Among the types of damages the injured party may recover are: loss of earnings capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses.

Case Law

 Case law is court made law, as opposed to legislation. Case law results from lawsuits and court opinions. Case law, or “common law” makes up a great portion of our national and state laws. Faragher v. City of Boca Ratan and Burlington Industries v. Ellerth

Employer Liability for Harassment Between Employees

 • Employer knows or should have known  • Failed to take reasonable steps  • Avoid liability by taking prompt & remedial action to end harassment  • Action reasonably calculated to end harassment & deter others

Hostile Work Environment Harassment

     • Protected status • Physical, verbal or visual behavior • Objectively and subjectively offensive • Severe, persistent or pervasive • Unreasonably interferes with work or education

Was Conduct Offensive?

  • Objective Test – The Reasonable Person Standard:  Would a reasonable person in the same circumstances as the victim be offended?

• Subjective Test: Was the victim in fact offended?

Would I be offended?

Reasonable Person

Grey, or Borderline Areas

    • Consensual relationships between supervisors/subordinates or faculty/students • Solicitation of dates, or invitations to lunch, drinks or dinner • References to appearance or dress •Casual touching of non-intimate parts of the body

Same Sex Harassment Supreme Court Ruling

    • Neither party has to be gay • Conduct must be based on gender  The victim was singled out because of his/her gender • Objectively severe & offensive • Totality of circumstances

Preventing Harassment

       • Avoiding Harassment • Corrective Actions • Investigation • Factors • Remedies • Discipline • Resolution

How to Avoid Harassment

       • • Prevention is the key!

• Take all complaints seriously & handle according to procedure • Safe environment for harassment complaints • Be a good role model • Encourage open discussions Train staff how to identify & respond Educate staff about rights & obligations

Appropriate Corrective Action

      • Conduct prompt & thorough investigation • Prevent harassment from recurring • Discipline harasser  Fits the conduct   Ensures it does not continue Deters others • Ensure appropriate remedy • Harassment training • Re-publish harassment policy

Prompt & Thorough Investigation

    • Encourage prompt reporting • Encourage promptly notifying offender behavior is unwelcome • Time lines for reporting • Retaliation WILL NOT be tolerated

RETALIATION

Stop the Harassment

 Consider:        • Severity • Pervasiveness • Harassers overall record • Complainants employment history/student record • Notice of policy • Prior practice • Rules, policies, and union contracts

Appropriate Student Discipline

   • Suspension or expulsion when other corrective measures fail/not feasible • Suspension or expulsion if student is dangerous • Education/training

Remedies for Harassment

    • Counseling • Correct adverse action • Follow up and monitor • Voluntary transfer,   if requested in writing after other options have been offered.

Fin

What did you learn? What questions do you still have?

How can we help you further? Contact the District Compliance Office at 527-4303 or e-mail [email protected]

Thanks!