American Association of University Professors
By Jonathan R. Alger
YOU CAN'T PICK UP A NEWSPAPER THESE days without seeing a reference to sexual harassment. Television and radio talk shows are full of titillating allegations involving public figures. What was once a taboo subject, discussed only behind closed doors, if at all, has now become a major legal, social, and political issue. Sexual harassment is also big business-consultants and trainers around the country offer advice on how to recognize and address it, and lawyers collect hefty fees for helping to develop sexual harassment policies and for litigating claims by employees and students.
Nowhere is the topic more pressing than on university campuses. In its 1997 Report Card on Gender Equity, the National Coalition for Women and Girls in Education assessed nine key areas of education affected by Title IX of the Education Amendments of 1972-the law prohibiting sex discrimination against students. The report gave progress in eliminating sexual harassment its lowest rating (a D+). Citing statistics showing that 30 percent of undergraduates and 40 percent of graduate students surveyed had experienced sexual harassment, the report concluded that "sexual harassment remains a significant impediment to gender equity for girls and women across the board."1 Just last year, the U.S. Department of Education's Office for Civil Rights issued thoughtful, thorough policy guidance under Title IX on sexual harassment of students by school employees, other students, or third parties.2 The problem is not, however, limited to students; faculty members and other employees may also be targets of harassment.
Inside the "Beltway," sexual harassment has become a hot topic in all three branches of government. Allegations of sexual harassment have reached the highest levels, including the president and members of Congress and the Supreme Court. The number of complaints of sexual harassment filed with the U.S. Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, has more than doubled since the Clarence Thomas confirmation hearings in 1991. The number of student complaints filed with the Office for Civil Rights has likewise increased significantly in this decade.
The term sexual harassment is not found in the discrimination statutes. Nevertheless, courts and law enforcement agencies have issued a bewildering array of rulings and interpretations on the contours of sexual harassment. Until this year, however, the Supreme Court had addressed the subject in only two cases. At last, the Court in its past term took heed of the increasing societal pressure for guidance on this issue and reviewed and decided four cases on sexual harassment. The Court took advantage of these cases to answer a few key questions on the law of sexual harassment, but it left some of the most vexed issues open.
What, then, is the current state of the law on sexual harassment, particularly as it applies to higher education? What should colleges and universities be doing to review and update their policies and procedures in light of recent developments? In the wake of the Supreme Court's rulings, the higher education community needs to turn its attention to these fundamental questions.
Sexual Harassment: A Form of Sex Discrimination
SEXUAL HARASSMENT HAS LONG BEEN RECOGNIZED AS A FORM OF SEX discrimination prohibited under Title VII (for terms and conditions of employment) and Title IX (for educational programs and activities at institutions that receive federal financial assistance, including virtually all colleges and universities). Two basic forms of sexual harassment have been recognized in policy making and case law: (a) quid-pro-quo harassment, in which an authority figure explicitly or implicitly makes employment terms or educational benefits contingent on another individual's submission to unwelcome sexual advances; and (b) hostile-environment sexual harassment, consisting of conduct of a sexual nature that is severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and that limits an individual's ability to participate in or benefit from his or her employment or education. The latter category of harassment has always defied simple definition, because the standard includes an assessment of the "totality of the circumstances" in each case. The Supreme Court disappointed some analysts by failing to seize the opportunity this past term to provide a new, overarching definition of sexual harassment, but it did reinforce several important principles and set some parameters.
First, sexual harassment involves sexually related misconduct as opposed to nonsexual, gender-based misconduct. This distinction has been a frequent source of confusion for lawyers, university affirmative action officers, and others charged with enforcing policies against sexual harassment. At many colleges and universities sexual harassment is covered under special policies and procedures separate from all other forms of discrimination, including discrimination based on gender. This structural separation may have its advantages in light of the highly personalized and emotionally charged nature of sexual harassment allegations, but it can also contribute to a failure to identify and address other, equally damaging forms of sex discrimination that are based on gender but are not sexual in nature.
For example, a female graduate student in astrophysics who receives constant comments from faculty members about the inability of women to grasp that topic is certainly subject to a hostile environment on the basis of gender, even though there may be no "sexual" connotation to the remarks. Other cases may involve a mix of sexual and nonsexual conduct that creates a hostile environment on the basis of gender, or conduct that is difficult to classify. All such cases can constitute potentially actionable discrimination; the line between sexual harassment and garden-variety sex discrimination is legally irrelevant except insofar as it affects the policies and procedures available to complainants.
Vicki Schultz, a law professor at Yale University, and others have argued that the law has focused unduly on sexuality as such, rather than on conduct that undermines the ability of women or men to participate fully in the workplace or classroom. "Many of the most prevalent forms of harassment," Schultz asserts, "are designed to maintain work-particularly the more highly rewarded lines of work-as bastions of male competence and authority." The Supreme Court picked up on this theme in its decision in Oncale v. Sundowner Offshore Services, Inc., noting that "conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." (The Court cited as an example the use of sex- specific, derogatory terms by a harasser directed at a woman as evidence of "general hostility to the presence of women in the workplace.")3
But, under the basic definition of discrimination, not all harassing behavior is covered by the law. If a boorish department head treats both male and female faculty colleagues with equal disdain-even if he uses inappropriate, sexually related language in doing so-he may not be guilty of sexual discrimination or harassment, even if he has violated other canons of professional ethics. But lest potential harassers get the idea that they can get away with such conduct so long as they are consistently rude, they should be aware that fact finders may carefully examine their conduct to determine whether it has a differential impact on the basis of sex. For example, neither courts nor women's rights advocates have tended to agree with those who maintain that the display of pornography in the workplace cannot constitute sexual harassment merely because it includes pictures of both men and women. In a culture that widely accepts that "women are from Venus and men are from Mars," psychologists, sociologists, and other experts argue that certain forms of behavior can have a vastly different impact on women than on men.
Concerned that its pronouncements on harassment and discrimination might be taken too broadly, the Supreme Court in Oncale took great pains to emphasize that Title VII is not a general civility code. Justice Scalia wrote:
[T]he statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. . . . Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.
Scalia's passing reference to "common sense, and an appropriate sensitivity to social context," provides precious little guidance to judges, juries, or campus officials in defining norms of acceptable behavior in the complex context of higher education. The degree of personal contact inherent in many faculty-student interactions, along with the range of topics, thoughts, and ideas that may be appropriate to share and explore, makes it difficult to define such norms with precision. Close working and mentoring relationships at colleges and universities often blur the lines between academic and social life in ways not contemplated in many other employment settings.
A recent case at Cleveland State University illustrates this difficulty. A thirty-three-year-old graduate student in psychology had an outside practicum at a counseling center, where her supervisor allegedly spent much of his time with her discussing his troubled personal relationships. He asked her out to dinner and for walks, wrote her romantic notes, and gave her poems and a book entitled How to Make Love All the Time. On one occasion, he placed his hand on her knee and started to slide it up her leg. She did not, however, have a sexual relationship with him, and she was able to complete the practicum with a favorable final evaluation. A federal district court found that although the supervisor's conduct was "probably disconcerting and certainly inappropriate," it was not necessarily "conduct of a sexual nature" and did not rise to the level of sexual harassment.4
For students of counseling, discussions of deep personal emotions and relationships might be reasonable and expected, but to what extent must people endure conduct that makes them feel uncomfortable and vulnerable? Would it have made a difference if the student had been younger, or if the supervisor had touched her leg more than once? Facts can vary endlessly, and the nuances are often subtle. Given that the guiding principles are so general, it should not surprise anyone that courts arrive at a host of different conclusions in cases of alleged sexual harassment.
IN DEFINING THE CONTOURS OF SEXUAL HARASSMENT LAW, THE SUPREME Court has not yet addressed an issue of prime importance to higher education--namely, how and when to draw the line between prohibited discriminatory conduct and protected academic expression. In fact, despite all the litigation involving campus speech codes and harassment policies in recent years, the Court has thus far avoided discussing the validity and application of these codes and policies. Questions about sexually related expression can arise from the content of courses in many disciplines, including sociology, psychology, art, gender studies, and biology, to name just a few. They can also arise from the teaching techniques used in just about any field. Accordingly, the AAUP's model policy statement on sexual harassment states that if sexually related, offensive speech or conduct "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."5
The cases of J. Donald Silva, a professor of English composition at the University of New Hampshire, and Dean Cohen, a professor of English at San Bernardino Valley College, received much publicity. In these two cases, faculty members teaching about writing were charged with sexual harassment for using classroom techniques, examples, or assignments alleged to be sexually provocative. The policies of Silva's and Cohen's institutions on sexual harassment, like those of many other campuses, were modeled after general guidance from the EEOC, which makes no special reference to the educational context. The limitations of this general guidance have become clear when such policies have been applied to expression in the classroom, resulting in decisions like those in the Silva and Cohen cases, in which the institutional policies on sexual harassment were deemed to be unconstitutionally vague as written or applied.
Courts have found it easier to critique such policies than to provide helpful guidance on how to draft and implement them. A spring 1998 federal appellate court decision in a case from the University of Hawaii, for example, contains troubling language revealing the lack of federal judicial guidance in cases involving the application of sexual harassment policies to classroom speech. An untenured professor of religion claimed that his First Amendment rights were violated when the university conducted an investigation into allegations that he sexually harassed some of his female students. The allegations stemmed from a classroom discussion about rape and sexual harassment. In the Hawaii case, the same appellate court that had earlier struck down the application of the San Bernardino Valley College sexual harassment policy to Professor Cohen's controversial teaching techniques held that Cohen "clearly stands for the proposition that there has not been a determination as to the scope of a college professor's First Amendment rights in the classroom."6 (Emphasis added.) Accordingly, the court found that officials at the University of Hawaii could not have violated the religion professor's rights by investigating his classroom behavior.
From a legal perspective, the problem isn't necessarily the way that policies define sexual harassment. Instead, difficulties arise when policies are written and applied without sensitivity to the unique context of higher education. Following the AAUP model, the best institutional policies incorporate explicit recognition of the need for the robust exchange of ideas and academic freedom for faculty and students, thereby reflecting the nature of the educational benefits and terms and conditions of employment that must be protected by discrimination statutes in higher education. Such references strengthen college and university antiharassment policies by demonstrating the "appropriate sensitivity to social context" called for by the Supreme Court.
The U.S. Department of Education, in its policy guidance on sexual harassment of students, acknowledged the need for educational institutions to "formulate, interpret, and apply [their] rules so as to protect academic freedom and free speech rights." As examples of protected academic discourse, the department mentioned (a) required readings from literary classics containing descriptions of explicit sexual conduct and (b) student essays read aloud in class that contain sexually derogatory themes about women.7 In the absence of additional guidance from the Supreme Court on the boundaries of sexual harassment in the academy, institutions would be well advised to reference in their own policies this recognition of academic freedom rights from the executive branch of the federal government.
Protection from Harassment
MANY OF THE BASIC QUESTIONS ABOUT WHO IS PROTECTED FROM SEXUAL harassment under Title VII and Title IX have now been answered. Laws against discrimination protect both employees and students against sexual harassment, whether they are male or female. Harassers may include peers as well as supervisors or other authority figures. The Supreme Court made clear in Oncale that same-sex sexual harassment, that is, harassment involving alleged perpetrators and victims of the same gender, is covered as a form of sex discrimination. In that case, a male employee on an oil platform forcibly endured sex-related, humiliating actions against him by other members of his crew, all of whom were male.
Thus a male employee or student could file a complaint of sexual harassment against a male supervisor or faculty member for unwelcome sexual conduct. Federal law does not, however, protect against harassment inflicted because of someone's sexual orientation, so "gay bashing" is not covered under the federal sex discrimination statutes. The Supreme Court's ruling suggests that it may be easier to prove same-sex harassment when the harasser is demonstrably motivated by sexual impulses, choosing a victim based on his or her gender. When the victim is homosexual and the perpetrator is not, some forms of harassment may be seen as inspired by the victim's sexual orientation rather than by his or her gender. As a practical matter, however, most campus policies (as well as some state and local laws) now forbid discrimination based on sexual orientation, so the distinction may be most important for determining the procedures available to complainants.
Establishment of Liability
THIS PAST TERM, THE SUPREME COURT EXPANDED THE UNIVERSE OF LIABILITY for employment-related harassment while simultaneously drawing a sharp line between the laws protecting employees and students. It did so through its decisions in three cases involving the liability of employers for sexual harassment by their employees. Declaring that the traditional concepts of quid-pro-quo and hostile-environment harassment are of limited utility in determining employer liability under Title VII, the Court instead focused on the power relationships of perpetrators and victims and on the nature of the harm resulting from the alleged harassment. Under Title IX, however, the Court stressed the importance of the awareness and authority of high-level officials regarding sexual harassment, rather than the power imbalance in faculty-student relationships. The Court said little about peer harassment of either employees or students, even though that is a common phenomenon that must be addressed in institutional policies.
Resolving a split among lower courts, the Court held that an employer under Title VII is subject to "vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee."8 The Court enunciated a rule imposing strict liability on employers in cases in which harassment by a supervisor culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. If no tangible employment action results from the harassment, an employee can still bring a claim. The Court indicated, however, that in such cases employers can defend themselves against liability or damages by showing "(a) that [they] 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."9
As to the first element of the defense, the Court noted the relevance of proof that an employer had promulgated an antiharassment policy and complaint procedure "suitable to the employment circumstances." The Court added that a showing that an employee unreasonably failed to use an existing complaint procedure would normally suffice to meet the employer's burden under the second element.
Students asserting claims of harassment by faculty members under Title IX did not fare nearly as well, because the Court held in Gebser et al. v. Lago Vista Independent School District that an educational institution is liable for damages only when a high-level school official-who at a minimum has authority to address the harassment and institute corrective measures on the school's behalf-receives actual notice of, and is deliberately indifferent to, a faculty member's misconduct.10 The Court based the distinction between protections for employees and students on the difference in how Title VII and Title IX are framed. It characterized Title VII as an outright ban on discrimination by employers but Title IX as a contractual model in which schools receiving federal funds agree to try to correct discrimination after high-level officials are notified of it. This statutory analysis by the Court will undoubtedly put pressure on Congress to reexamine Title IX and other antidiscrimination provisions protecting students, who are often the most vulnerable potential victims of harassment.
These decisions from the Court may provide much-needed guidance on liability for harassment, but they also raise some vexing questions for institutions of higher education. For example, given the significance for liability purposes of supervisory authority in employment settings, the question of who qualifies as a supervisor becomes paramount among faculty members, who work in a culture permeated with the concepts of shared governance and peer review. The less hierarchical and centralized an institution's governance structure, the more difficult it will be to apply the Supreme Court's rules on employer liability. A dean or department head might seem certain to qualify as a supervisor, but what about senior, tenured colleagues in a department vis-�-vis a junior faculty member without tenure? Because of their role in the tenure-review process, for example, these senior colleagues may be able to exercise powerful influence over a junior professor's career.
The decision limiting Title IX liability to circumstances in which actual notice is received by high-level officials with authority to address sexual harassment complaints may prompt institutions to take greater care in identifying and empowering such officials. For example, some colleges and universities have policies that designate virtually all full-time faculty members as potential complaint handlers, even though most of those individuals receive little or no training in this role. This practice might seem democratic and accessible, but it could lead to unnecessary institutional liability when complaints are mishandled or ignored.Similarly, determining whether harm to terms and conditions of employment can be deemed "tangible" is not always an easy line to draw. In the tenure-review process, could an unsuccessful candidate for tenure argue a tangible impact if she spurned a senior colleague's advances and he then voted against her? The variety of factors and the degree of discretion inherent in the peer-review process may make such questions hard to answer in higher education.
Employers, in defending against harassment claims by employees or students, should note the premium the Court's decisions placed on the existence of "user-friendly" harassment policies and complaint procedures. To minimize liability for harassment, colleges and universities should make their antiharassment policies and procedures clear, publish and disseminate them as widely as possible, and provide training to potential complaint handlers and faculty, staff, and students. The greater its demonstrated commitment along these lines, the more reasonable a college or university will likely appear in a court's eyes-and the less reasonable an employee or student who fails to take advantage of such procedures will seem. The Supreme Court's emphasis on vicarious liability, at least in employment settings, might also accelerate the trend toward institutional policies banning consensual sexual relationships involving a potential power imbalance between the participants.
These same legal pressures may compel colleges and universities to pursue harassment claims with renewed vigor, and to favor more formal procedures over informal processes. The need, however, to balance the rights of the parties involved must not be forgotten. The Department of Education's policy guidance on sexual harassment of students recognizes this need, stating that "procedures that ensure the Title IX rights of the complainant while at the same time according due process to both parties involved will lead to sound and supportable decisions."11 The same logic applies to employee complaints under Title VII. University attorneys and affirmative action officers may nevertheless conclude that the more thorough and well documented an investigation, the more likely it is that a court will find the investigation reasonable. By the same token, the temptation to punish accused harassers in close cases may be greater than ever.
The potential threat to academic due process at colleges and universities is not the only danger faced by faculty members accused of harassment under the Supreme Court's rulings. Given the Court's decision to limit an institution's liability for sexual harassment by teachers absent notice to higher-level officials, faculty members accused of harassment by students might now face a greater risk of being sued as individuals. Thus faculty members and students alike stand to gain from grievance procedures that ensure notification of institutions. In the rush to judgment in these cases, institutions must also remember that discipline is not the only remedy available to address allegations of sexual harassment. Training, counseling, and policy clarification and dissemination can also be effective tools in appropriate cases.
IN LIGHT OF THE PRINCIPLES SET FORTH BY THE SUPREME COURT --and of the decisions the Court has yet to make about the nature and extent of academic freedom--now is the time to review campus sexual harassment policies and procedures to ensure that they are clear, consistent with the law, and sensitive to the unique social context of higher education. In reviewing such policies, administrators, faculty members, and students should keep in mind that other forms of nonsexual gender discrimination also exist, that not all harassing conduct is necessarily discriminatory, and that codes of conduct and ethics might also be brought to bear in situations that do not fit neatly into definitions of sexual harassment.
When faculty members and students from different backgrounds are brought together in close proximity and charged with exploring and debating the full range of human ideas, questions and controversies regarding the appropriate boundaries of human interaction are inevitable. The law can go only so far in defining those boundaries and regulating personal relationships. The same is true of campus harassment policies. Sexual harassment will never be defined with enough clarity to eliminate the need for careful, case-by-case judgments. When these judgments are made in colleges and universities, they must always reflect and reinforce the special mission and benefits of higher education that the discrimination laws are intended to protect.
1. National Coalition
for Women and Girls in Education. Title IX at 25: Report Card on Gender Equity
(Washington, D.C., 1997).
2. U.S. Department of Education, Office for Civil Rights, "Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties," Federal Register 62 (13 March 1997): 12034.
3. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
4. Petrone v. Cleveland State University, 993 F. Supp. 1119, 1130 (N.D. Ohio 1998).
5. See AAUP, "Sexual Harassment: Suggested Policy and Procedures for Handling Complaints," Policy Documents and Reports, 8th ed. (Washington, D.C., 1995), 171-72.
6. See Lamb v. University of Hawaii, et al., No. 97-15068, 1998 U.S. App. LEXIS 10775, ___F.3d___ (9th Cir. 1998).
7. Federal Register 62 (13 March 1997): 12034, at 12045-6.
8. See Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
10. Gebser et al. v. Lago Vista Independent School District, 118 S.Ct. 1989 (1998).
11. Federal Register 62 (13 March 1997): 12034, at 12045.
By Jonathan Alger, AAUP counsel.