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Identifying and Preventing Sexual Harassment in the Higher Education Workplace and on Campus
 

Identifying and Preventing Sexual Harassment in the Higher Education Workplace and on Campus

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  • “We have consistently interpreted KRS 344->040 in consonance with Title VII of the Federal Civil Rights Act of 1964->” Am-> Gen-> Life & Acc-> Ins-> Co-> v-> Hall, S->W->3d 688, 691 (Ky-> 2002)->
  • Training addressed Title VII, but in an educational workplace, management must be concerned about sexual harassment concerning students, too, because of Title IX-> We’ll take these one at a time->
  • Answers here need to look at problems that can occur among colleagues in the workplace, diminished productivity, potential liability to the employer, bad publicity, and the possibility of personal liability if you’re the person named in a lawsuit as the harasser
  • What would be an example on the employment side? On the educational side?
  • Researcher Heather McLaughlin reported, "This study provides the strongest evidence to date supporting the theory that sexual harassment is less about sexual desire than about control and domination->->->->->"
  • A demand for sexual favors in return for continued employment, promotions, etc-> = quid pro quoC-> Widespread Favoritism May Constitute Hostile Environment HarassmentIf 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-> In these circumstances, a message is implicitly conveyed that the managers view women as "sexual playthings," thereby creating an atmosphere that is demeaning to women-> Both men and women who find this offensive can establish a violation if the conduct is "sufficiently severe or pervasive 'to alter the conditions of [their] employment and create an abusive working environment->'" Vinson, 477 U->S-> at 67 [quoting Henson v-> City of Dundee, 682 F->2d 897, 904, 29 EPD ¶ 32,993 (11th Cir-> 1982)]->11 An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes-> Even if the targets of the humor "play along" and in no way display that they object, co-workers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them-> See Rogers v-> EEOC, 454 F->2d 234, 4 EPD ¶ 7597 (5th Cir-> 1971), cert-> denied, 406 U->S-> 957, 4 EPD ¶ 7838 (1972) (discriminatory treatment of medical patients created hostile work environment for plaintiff employee); Commission Decision No-> 71-969, CCH EEOC Decisions (1973) ¶ 6193 (supervisor's habitual use of racial epithet in referring to Black employees created discriminatory work environment for White Charging Party); Compliance Manual Volume II, Section 615->3(a)(3) Examples (1) and (2) (sexual harassment of females may create hostile work environment for other male and female employees)->Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment->12 This can form the basis of an implicit "quid pro quo" harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive->13Conduct can explicit or implicit with quid pro quo-> Question = whether a reasonable person would believe a person
  • Example from case involving Galen Nursing School here
  • King Henry IV, Part 2, Act 3, Scene 1
  • All reports of harassment will be handled promptly and appropriate action will be taken in an expeditious manner-> Supervisors and managers investigating an allegation of harassment are required to notify the Human Resources Department-> All employees, whether complainant, witness or accused, are required to be truthful, accurate and cooperative during the investigation-> The confidentiality and privacy of all employees and of those involved will be respected to the extent possible-> In all cases, the complainant and the accused employee will be advised of the results of the investigation->

Identifying and Preventing Sexual Harassment in the Higher Education Workplace and on Campus Identifying and Preventing Sexual Harassment in the Higher Education Workplace and on Campus Presentation Transcript

  • <li>Preventing Sexual Harassment in the Workplace and on campus<br />Presented by Debra Green, Director, Quality Enhancement Center for Sullivan University System<br /></li><li>Path for Today’s Training<br />Examine sexual harassment issues that can occur:<br />In the workplace<br />In the campus environment<br />Examine the steps needed:<br />To help prevent problems in the workplace and handle them once they do arise<br />To handle problems involving students in the campus setting<br /></li><li>Handouts on identifying and preventing sexual harassment<br />Job aids attached to the SkillSoft course module<br />Printout of the slides from today’s session<br /></li><li>What we’re not going to cover in any depth-&gt; -&gt; -&gt;<br />Other forms of harassment (such as national origin, religion, age, etc-&gt;)<br />See SUS Non-Discrimination and Harassment Policy preamble<br />State law concerning harassment claims<br />Kentucky Civil Rights Act follows Title VII’s interpretation<br />Ancillary claims that can arise from harassment claims, such as claims for discrimination, intentional infliction of emotional distress, assault, etc-&gt;<br />What you need to remember: <br />Entering the sexual harassment mine field can lead to an explosion of related claims under both state and federal law-&gt;<br /></li><li>Sexual harassment in higher education<br />Workplace setting and sexual harassment under Title VII<br />Campus setting and sexual harassment under Title IX<br /></li><li>Spot check: Why be concerned about sexual harassment in either setting?<br /></li><li>When Does Sexual Conduct Cross the Line into Sexual Harassment?<br />“It is not easy, let alone desirable, to attempt to regulate sexual attractions among persons working together or to proscribe romances that may develop and even flourish in the workplace-&gt; Some of these relationships will, if nature is allowed to take its course, develop between persons at different levels in the hierarchy, just as hierarchical boundaries have failed to contain romance throughout history-&gt;” Holly D-&gt; v-&gt; Ca-&gt; Inst-&gt; of Tech-&gt;, 350 F-&gt;3d 1158, 1174 (9th Cir-&gt; 2003)<br />Not all sexual conduct is actionable sexual harassment<br />Was the conduct unwelcome?<br />Was the conduct used as a basis for making decisions affecting a person’s benefits, compensation, terms, conditions, or privileges concerning employment or education?<br />SUS policy recognizes this balance among the institution, its employees and its students (which we’ll review later)<br /></li><li>“The workplace is not and should not be a sterile or barren space, and it is not the job of the legislature or the courts to make it so-&gt; However, not all attempts at courtship or coupling are legitimate-&gt; -&gt; -&gt; -&gt;” Holly D-&gt; v-&gt; Ca-&gt; Inst-&gt; of Tech-&gt;, 350 F-&gt;3d at 1174-&gt;<br />Employee/Employer Issues and Title VII<br /></li><li>Did you know…-&gt;<br />A telephone poll by Louis Harris and Associates on 782 U-&gt;S-&gt; workers revealed:<br />31% of the female workers reported they had been harassed at work<br />7% of the male workers reported they had been harassed at work<br />62% of targets took no action<br />100% of women reported the harasser was a man<br />59% of men reported the harasser was a woman<br />41% of men reported the harasser was another man<br />Of the women who had been harassed:<br />43% were harassed by a supervisor<br />27% were harassed by an employee senior to them<br />19% were harassed by a coworker at their level<br />8% were harassed by a junior employee<br /></li><li>More research on sexual harassment in the workplace<br />The information on the previous slide and on this one comes from Sexual Harassment Support, at http://www-&gt;sexualharassmentsupport-&gt;org/SHworkplace-&gt;html(last checked on 2/19/10) <br />According to a recent study (2009) by sociologists at the University of Minnesota, women in supervisory positions are the most likely targets of sexual harassment-&gt;  After following  over 1000 men and women from ninth grade through to their 29th or 30th birthdays, the researchers found that women, gays, and feminine men were the most likely to be harassed throughout out their lives-&gt;  Women supervisors were 137% more likely to be harassed than females in non-supervisory positions-&gt;   There was no correlation between supervisory status and harassment for the men in the study-&gt;   <br /></li><li>Spot check: Can you name the two types of workplace sexual harassment?<br /></li><li>Categories of Workplace Sexual Harassment<br />Involves unwelcome sexual conduct by someone in authority or with the ability to influence a decision pertaining to benefits, job conditions, etc-&gt; <br />Resulted in a tangible employment action, <br />TEA means, for example, either by conditioning employment on accepting the unwelcome behavior, threatening discharge for refusal to submit, failing to promote, etc-&gt;<br />Automatic employer liability if the employee proves a tangible employment action happened-&gt;<br />Involves unwelcome sexual conduct by supervisors and co-workers as well as third parties-&gt;<br />Involves severe or pervasive conduct that an objective person would find<br />affects the employee’s individual work performance<br />or creates an intimidating, hostile or offensive work environment<br />Quid Pro Quo Requirements<br />Hostile Work Environment Requirements<br /></li><li>Not Every Incident is Equal-&gt; -&gt; -&gt;<br />Questions that a court (or human resources) will ask:<br />How severe is the conduct?<br />Is this a one-time event or has it been happening repeatedly?<br />Did it involve threats (especially physical threats)?<br />Did it involve touching?<br />Two good rules of thumb:<br />The more extreme the conduct, the more likely it’s actionable-&gt;<br />The longer the conduct has been happening, the more likely it’s actionable-&gt;<br /></li><li>Workplace scenario<br />Jim is a top sales person for Tanker Manufacturing-&gt; Jim often takes clients, who are executives for trucking companies, to “gentlemen’s clubs” for business lunches-&gt; The waitresses at these clubs are semi-nude-&gt;<br />Hannah also works in sales for Tanker-&gt; She began joining Jim at these client lunches about six months ago-&gt; <br />Neither Jim nor the clients have ever made any remarks about Hannah’s dress or appearance, although Jim and his clients do occasionally make remarks about the women who worked at the bars-&gt;<br />Hannah’s sales have increased 30 percent in the six months since she started attending these client lunches with Jim-&gt; Her performance has improved substantially, and she is on track to receive a bonus this year-&gt;<br />Hannah has never complained about there being a problem at work-&gt; <br />Hannah submitted her resignation today, saying “I can’t work under these conditions any longer-&gt;”<br />Is this sexual harassment? What, if anything, could help prevent this? <br /></li><li>Wrapping up workplace harassment<br />A fun synopsis on how to identify and prevent sexual harassment: http://www-&gt;youtube-&gt;com/watch?v=CgSeQP3hpSQ<br /></li><li>“[R]ecipients of federal funds-&gt; -&gt; -&gt;may be liable for damages under Title IX-&gt; -&gt; -&gt; -&gt;” Vance v-&gt; Spencer County Pub-&gt; Sch-&gt; Dist-&gt;, 231 F-&gt;3d 253, 258 (6th Cir-&gt; 2000)-&gt;<br />Title IX and Institutional Liability for Sexual Harassment with Students<br /></li><li>Types of Title IX Sexual Harassment<br />Two types:<br />Quid pro quo harassment<br />Hostile educational environment<br />Both public and private institutions—whether for-profit or non-profit—that receive federal funds are subject to Title IX actions with sexual harassment<br /></li><li>Quid Pro Quo Harassment in an Educational Setting<br />Involves a student and someone in a position of decision-making authority or influence over the student<br />Student must have experienced a tangible educational action as a result of these inappropriate demands<br />Examples: threats to change grade, dismissal, etc-&gt; <br />Two part additional parts:<br />Student must have provided actual notice of the situation to an appropriate person who, at a minimum, was an official with the authority to take corrective action to end the harassment, and<br />The institution’s response amounted to “deliberate indifference”<br /></li><li>Highlights with Hostile Educational Environment<br />Can involve peer to peer sexual conductamong students as well as sexual conduct involving students and a university’s instructors or other employees<br />Possibility of third parties, such as vendors or off-site externship supervisors, who could also engage in creating a hostile educational environment for students<br />Three part test:<br />Sexual harassment must be so “severe, pervasive and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school,”<br />School must have had “actual knowledge of the sexual harassment,” and<br />School was “deliberately indifferent to the harassment”<br /></li><li>Key Points to Watch with Quid Pro Quo and Hostile Educational Environment<br />Information must have been reported to an appropriate person “with the authority to take corrective action” to end the sexual harassment-&gt;<br />Could also be enough for a school to have knowledge of prior complaints with about person or department consistent with what’s at issue now-&gt;<br />Court here will look to whether the institution took reasonable measures to stop the harassment once it knew what was happening-&gt;<br />“Reasonable” depends on the circumstances-&gt; That’s why it’s critical that you report alleged incidents to your campus leadership-&gt;<br />“Actual Knowledge”<br />“Deliberate Indifference”<br /></li><li>Have you seen possible signs on your campus? <br />Student-to-student sexual harassment<br />Teacher-to-student sexual harassment<br />Third parties and student sexual harassment<br /></li><li>An ounce of prevention is worth a pound of cure…<br />Prescription for Preventing Sexual Harassment<br /></li><li>Responsibilities with Prevention<br />Create an environment that discourages sexual harassment<br />If you’re a manager, model appropriate behavior in the workplace for other employees <br />If you’re a teacher, what can you do to create a classroom environment that discourages inappropriate sexual conduct?<br />Help employees and students understand the avenues available for help when they have a problem<br />What can you as an employee do if you’re receiving unwelcome sexual conduct from a co-worker or supervisor?<br />What’s the policy at your campus on what students should do when they’re receiving unwelcome sexual attention? <br />What should you do as a faculty member or employee if you witness or become aware of inappropriate conduct between student/student, student/faculty or other?<br /></li><li>Highlights on SUS Policy on Relationships<br />Involves subordinates and managers, supervisors, or others with the ability to influence the terms and conditions of employment for employees-&gt;<br />Those in a relationship or contemplating a relationship must disclose the information-&gt;<br />Disclosure would be to HR<br />Failure to disclose subjects the supervisor or manager to disciplinary action, up to and including termination-&gt;<br />Note the definition of “personal relationship” and “instructor”<br />Key here is not having a personal relationship “with a student over whom he or she has a direct supervisory responsibilities” or may have those responsibilities in the future-&gt;<br />Personal Relationships in the Workplace<br />Instructor-Student Relationships<br /></li><li>HR and reporting incidents of alleged workplace sexual harassment<br />SUS policy under “Reporting Discrimination and Harassment”<br />The importance of good documentation<br /></li><li>Responsibility Not to Retaliate Against Employees or Students Who Report<br />SUS policy on retaliation<br />Title VII and Title IX prohibit retaliation against employees or students who file complaints-&gt;<br />Responsibility extends to you (as a manager or faculty member in a classroom setting) andto making sure other employees or students don’t retaliate against someone who files a complaint-&gt;<br />Examples of retaliatory behavior<br /></li><li>“But What If-&gt; -&gt; -&gt;”<br />“Uneasy lies the head that wears a crown-&gt;”<br />William Shakespeare, King Henry IV<br />You’re a manager or faculty member and:<br />“The employee/student who told me about the incident did so in confidence and asked me not to say anything to anyone about it-&gt;”<br />“The employee/student who’s complaining complains about everything-&gt; I don’t think his complaint is legitimate-&gt;”<br />“I’m just hearing rumors but no one directly involved has come forward with a complaint-&gt;”<br /></li><li>If you have questions about SUS policy on sexual harassment, contact HR!<br /></li>