Preventing Harassment in the Academic Setting/Workplace

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Preventing Harassmentin theAcademic
Setting/Workplace

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

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Outline

• 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

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I. What is Harassment?

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

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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
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Forms of Unlawful Harassment

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

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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.

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Quid Pro Quo(Something for something)

• Adverse action Benefits promised in exchange
  for sexual favors or denied if sexual favors are
  not given.

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Quid Pro Quo

• Factors
• Was sexual conduct unwelcome?
• Objectively harassing, i.e., would a reasonable
  person in the accusers 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?

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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.

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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

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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

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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.

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Sexual Harassment The Law

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

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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.

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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

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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

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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.

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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.

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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.

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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

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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

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Hostile Work EnvironmentHarassment

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

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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
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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

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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

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Preventing Harassment

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

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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

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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

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Prompt Thorough Investigation

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

RETALIATION
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Stop the Harassment

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

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Appropriate Student Discipline

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

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Remedies for Harassment

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

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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 cprickett_at_santarosa.edu
• Thanks!