Original published in educational Horizons
Gary K. Clabaugh, Emeritus Professor of Education, La Salle University
When does touching or sexual humor become sexual harassment? If an employee displays a framed photo of his bikini-clad wife on his desk is that sexual harassment? Is it sexual harassment if a male student frequently asks a female student for a date? Are school officials liable if a driver fails to stop alleged sexual insults on a school bus? When does a school curriculum create a sexually “hostile environment?” For answers to these and similar questions refer to:
- the U.S. Equal Employment Opportunity Commission
- the Office for Civil Rights of the U.S. Department of Education
- federal and state case law
- state anti-discrimination agencies,
- criminal law enforcement agencies
- local institutional policies
Better check them all too, because interpretations vary. Specifications are not purely arbitrary. Still, deciding what should count as “sexual harassment” is highly problematic — particularly at the local level.
Local level definitions and policies are commonly set out in some sort of Supervisory Guide. I have one such “Guide” in front of me. It defines sexual harassment as: “Any unwelcome sexual attention, sexual advances, requests for sexual favors and any other verbal, visual or physical conduct of a sexual nature whenever:
a.) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s continued employment: or
b.) submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual; or
c.) such conduct is intended to, or has the effect of unreasonably interfering with an individual’s work performance;
d.) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.”
The Guide then elaborates. It is “sexual harassment” if actions include:
“…threatening adverse work action if sexual favors are not granted; promising preferential treatment in return for sexual favors; unwanted and unnecessary physical contact, including pinching, patting or touching; sexual offensive remarks, including inappropriate comments about appearance, leering, whistling, obscene or dirty jokes or other inappropriate use of sexually suggestive objects or pictures. Even something like a back rub could be sexual harassment if it is unwelcome and creates a hostile or offensive work environment. Comments like “you look nice today” are all right if not repeated frequently, but comments like “you look nice today in that tight or short (article of clothing)” are inappropriate and may be sexual harassment.”
Let’s examine some of this. With regard to leering, for instance, who decides if an alleged glance was sideways or oblique much less motivated by lascivious interest? With regard to touching, who decides when it is “unnecessary?” And who renders the verdict on what is “sexually offensive?” or “inappropriate?” In each and every instance it is: 1. the complainant then 2. some school bureaucrat. (Sense any potential problems here?) Also note that one even has to be careful about saying, “You look nice today.” Why? Because the recipient of the compliment and the bureaucrat get to decide if that was said “too often.” (Franz Kafka did a lot with this sort of thing.)
There also are procedural problems. The Guide urges anyone “…who believes that they have been or are being sexually harassed to tell the harassor (sic) politely but firmly that his or her conduct is not welcome and must stop.” The Guide then confides, “If the conduct persists, or the harassed person is afraid for any reason to confront the harassor … the individual should bring the problem confidentially to the attention of the Affirmative Action Officer.” ” This officer, “…will immediately investigate any such allegations of sexual harassment in as confidential a manner as possible. While confidentiality might protect the accused, there is nothing quite like secrecy for generating injustice. (That is why England did in their infamous Star Chamber in the 1640’s.)
To encourage denunciations, hesitant accusers are urged to “…bring the problem confidentially to the attention of the Affirmative Action Officer, without fear of any retaliation, humiliation or recrimination.” The Guide even reassures those contemplating this maneuver, “Retaliation in any form (emphasis added) against a complainant who has exercised his or her right to make a complaint under this policy is strictly prohibited, even if the investigation concludes that no sexual harassment has occurred (emphasis added), and will be cause for appropriate discipline, up to and including discharge.” In other words, you can even bring false charges and risk little or nothing. Now there is an incentive for evil.
Let’s now examine the rights of the accused. The Guide advises, “The alleged harassor will be given an opportunity to respond to the allegations, but ordered not to confront or retaliate against the complaining person concerning the allegations. When possible, neutral witnesses will be interrogated [again, confidentially].” Is their a different tone here? The alleged victim is encouraged, even prompted to denounce, the accused has “an opportunity to respond,” but…”.
What is the accused permitted while making this “response?” Pretty much what was permitted by the late Senator Joseph McCarthy during his Senate hearing days. Unable to confront their accuser; never knowing what has been said about them during secret interrogations; not being permitted to question so-called neutral witnesses; being denied a record of the proceedings; the accused is permitted to deny the allegation — provided he takes it lying down.
Lastly, for the accused to be found guilty must the case for harassment be established “beyond a reasonable doubt?” Nothing so ambitious. The accused is guilty if the investigator decides guilt is “…more likely than not.” In other words, the accused can be found guilty enough. By whom? By the investigator, of course. (Never mind that this bureaucrat’s job security may depend on unearthing a “harasser” now and then.)
By the way, the complaining person is assured that all documents “will be expunged” from their record that might have been “tainted” by the harassment. But if the alleged harasser is found innocent, there are NO guarantees that his/her personnel file will be similarly “expunged.” How’s that for fairness?
Secret denunciations, clandestine hearings, immunity for traducers, trashing reasonable doubt, all are thought necessary to offset the purported victim’s fear of retaliation. Of course, such procedures also encourage false charges from people who are just plain nuts and permit the unprincipled to profit with little risk from false and malicious slander. The thought must be that, given the urgency of the sexual harassment problem, justice is something we just can’t afford.