Preventing Harassment in the Academic Setting/Workplace

1. Preventing Harassmentin theAcademic Setting/Workplace A refresher on sexual harassment.

2. Outline • Pre-test • 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; Resolution • Post-test

3. Pre-Test • Pre-test Question 1 • Kelly took a class from a Professor who was recently hired. This Professor is under 30 years old, single, and very attractive. Other students in the class noticed that Kelly rarely attended class, but she was often seen with the Professor at a neighborhood coffee shop. Kelly received an A in the class, and everyone knew she was sleeping with the Professor • Kelly is a victim of sexual harassment. • True or False?

4. Pre-Test • Pre-test Question 1 • False. • This may be an example of sexual favoritism, unless Kelly was coerced or threatened into a sexual relationship with the Professor. The institution may be vulnerable if other students perceive that they can get a high grade by sleeping with the Professor.

5. Pre-test Question 2 • Tony persists in asking Mary out to dinner. Mary is a waitress at the Diner where Tony delivers bread. Mary turns him down each and every time he requests a date, and has told him several times to stop asking. She has also reported Tony to her supervisor. • Tony's behavior is not at risk for sexual harassment, because he does not work for the Diner and they have no control over his behavior. • True or False?

6. Pre-test Question 2 • False. • Although harassment frequently involves power relationships in the workplace, sexual harassment may occur between any individuals at work, regardless of which entity is the employer. • Because Mary finds Tony's requests unwelcome and he persists in asking her out despite her clearly stating that she does not want to date him, his behavior is at risk for sexual harassment. It is up to her employer to intervene to stop Tony from harassing Mary, including contacting Tony’s employer or finding another bread vendor.

7. Pre-test Question 3 • Bob works for the athletic department of a college. He has pin up pictures of scantily clad women on the inside door of his locker in the men’s faculty locker room. Bob's behavior is not at risk because he does not intend to offend anyone, and his pictures are usually hidden from view and can be seen only when he has his locker open. • True or False?

8. Pre-test Question 3 • False. • Sexual harassment does not depend on intent; it depends on the impact of the behavior on the work environment. Bob may not intend to offend or harass any of his co-workers, but the impact of his behavior is what counts. • If this type of behavior pervades the working environment, chances are some workers will find it offensive and unwelcome. • The management of Bob’s college is obligated to keep the workplace free of offensive behavior of a sexual nature.

9. Pre-test Question 4 • Joan and Steve work in the same office and enjoy a great working relationship. At work they usually interact during breaks and lunch, which they take together. They were recently seen kissing in the parking lot of the Flamingo, a local hotel. At work they seem professional, but they are definitely an item of conversation. • Romance of any kind has no place at work. This couple's relationship is clearly at risk for sexual harassment. True or False?

10. Pre-test Question 4 False. • The law on sexual harassment refers only to non-consensual behavior of a sexual nature. This means that at least one of the parties is not willing, does not consent, and does not find the behavior welcome. • Joan and Steve have a consensual relationship, and they don't engage in publicly offensive behaviors, so their conduct cannot be construed as sexual harassment. • However, romances may go sour and lead to harassment situations. That's why some organizations have made policies regarding office romances.

11. Pre-test Question 5 • John and Lois, instructors in the same department, travel together to a conference where they are presenting a paper. In the taxi before their check in at the hotel, John suggests to Lois that they stay in the same room. Lois strongly objects, and John backs off. • While Lois finds John's behavior offensive and unwelcome, the regulations regarding sexual harassment in the work place are not relevant, since John and Lois were not at their usual workplace when the incident happened. • True or False?

12. Pre-test Question 5 • False. • Courts have ruled that sexual harassment can occur both on and off regular work premises, including on business trips, at conventions and at holiday office parties.

13. I. What is Harassment? • Conduct: Behavior, acts and perceptions • Quid Pro Quo • Environment: Visual, physical and verbal • Hostile • Abusive

14. Sexually Harassing Conduct • Can consist of:

15. Forms of Unlawful Harassment • • Sex • • Race/National Origin/Color • • Disability • • Religion • • Marital Status • • Age • • Sexual Orientation

16. 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.

17. Quid Pro Quo(Something for something) • Adverse action: Benefits promised in exchange for sexual favors or denied if sexual favors are not given.

18. Quid Pro Quo • Factors: • • Was the sexual conduct unwelcome? • • 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 connection between a discussion about academic or job benefits and a request for sexual favors?

19. Hostile Environment • Sexually harassing conduct 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.

20. Is Environment Hostile or Abusive? • • Totality of the Circumstances • • Frequency • • Severity • • Physically threatening or humiliating • • Unwelcome

21. 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

22. II. Liability • • Individual Responsibility • • Sources of Liability: The Law • • Title VII • • California Fair Employment and Housing Act (FEHA) • • Title IX • • California Education Code 212.5 • • Tort Law • • Case Law

23. (II. Liability) • Categories: • • Supervisors • • Between Employees • • Student Employees • • Peer Harassment • • Hostile Environment

24. Employees May Face Personal Liability Actual Damages Attorney’s Fees A Civil Penalty Up To $25,000

25. All Employees Are Personally Responsible • Since January 1, 2001 California law has provided that individual employees at all levels within an organization 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.

26. Impact of Liability Monetary Damages Loss of Federal Funding Injunctive Relief

27. Sources of Liability • •Title VII • • California Fair Employment and Housing Act (FEHA) • • Title IX • • California Education Code 212.5 • • Tort Law • • Case Law

28. 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.

29. Fair Employment and Housing Act (FEHA) prohibits: • •Unwanted sexual advances • • Offering employment benefits in exchange for sexual favors (Quid pro quo) • • 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

30. (FEHA prohibits) • • 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

31. Title IX • Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations state: 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.

32. 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.

33. Employer Liability for Supervisors • • Quid Pro Quo: • Strict Liability: Strict liability is a legal doctrine that makes some persons responsible for damages their actions cause, regardless of any "fault" on their part. • Hostile Environment FEHA: Strict Liability Title VII: Allows Affirmative Defenses

34. Hostile Work EnvironmentHarassment • • Protected status of victim • • Physical, verbal or visual harassing behavior • • Harassment is objectively and subjectively offensive • • Harassment is severe, persistent or pervasive • • Harassment unreasonably interferes with work or education

35. Was Conduct Unwelcome? • • Totality of the Circumstances • • Who initiated the harassing conduct? • • How did the complainant respond? • • Did the complainant tell the harasser to stop? • • Did the complainant tell anyone about the harassment?

36. 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

37. 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

38. 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

39. III. Preventing Harassment • • Avoiding Harassment • • Corrective Actions • • Investigation • • Factors • • Remedies • • Discipline • • Resolution

40. 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

41. Appropriate Corrective Action • • Encourage prompt reporting and do not tolerate retaliation • • 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

42. Prompt Reporting and Retaliation • • Encourage prompt reporting • • Encourage promptly notifying offender behavior is unwelcome • • Retaliation WILL NOT be tolerated RETALIATION

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

44. Remedies for Harassment • • Counseling • • Correct adverse actions • • Follow up and monitor behavior • • Voluntary or involuntary transfer

45. Resolving the Complaint • • Communicate findings to all parties involved. • • Maintain records of the investigation. • • Advise victim of appeal rights. • • Monitor the perpetrator.

46. Post Test #1 • As an instructor, is it appropriate to hug your students? • But I’m a touchy-feely kind of person!

47. #1: Answer Please refrain from any physical contact between you and your students. Hug your significant other, your cat, dog, horse, or goldfish, but not your students.

48. Post Test #2 Ms. T is a first year student. Her advisor is Mr. B, a new counselor who is a recent college graduate. After Christmas break, they begin dating and continue through Ms. T’s time at SRJC. • Is it harassment for Mr. B to advise Ms. T?

49. #2: Answer No. This is an example of a relationship between two consenting adults, unless Ms. T was coerced into the relationship. But consensual relationships between advisor and advisee can make the institution vulnerable to sexual harassment and/or retaliation charges if the relationship goes sour. Mr. B should be removed as Ms. T’s advisor.

50. Post Test #3 Crystal is a student in a work-study program with an engineering firm. The firm is predominately male and she soon finds nude pictures of women and vulgar jokes being placed in her lab station. She informs her advisor. Is this sexual harassment? If so, what kind is it?