Sexual Harassment of Women Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (2018) / Chapter Skim
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5 Legal and Policy Mechanisms for Addressing Sexual Harassment
5 Legal and Policy Mechanisms for Addressing Sexual Harassment
Pages 93-120
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From page 93... ...
As such, academic institutions and federal agencies should treat the legal obligations for addressing sexual harassment under Title IX and Title VII law as a floor, not a ceiling, and work to move beyond basic legal compliance to promote sustainable, holistic, evidence-based policies and practices to address sexual harassment and promote a culture of civility and respect. LEGAL AND POLICY HISTORY The development of law and policies about sexual harassment in academic settings began in the 1970s, first with the passage of Title IX in 1972 (part of the Education Amendments of 1972)
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From page 94... ...
Courts use interpretations of sex discrimination established under Title VII (the employment law) for Title IX, and so as sexual harassment law developed under Title VII, it applied under Title IX as well.
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From page 95... ...
Backhouse and Cohen observed that a graduate student's situation "is much like that of all working women" because "the future of a graduate student can be contingent on the good will of her supervising professor." Feminist scholars shaped both the legal doctrine of sexual harassment as well as administrative plans for changing organizational cultures to combat it. Most significantly, they argued that sexual harassment amounted to illegal sex discrimination under Title VII of the 1964 Civil Rights Act (Farley 1978; MacKinnon 1979)
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From page 96... ...
the overwhelming historical focus of sexual harassment law and policy development has been on harassment of a sexualized and coercive nature, not on the gender harassment type of sexual harassment that more recent research has identified as much more prevalent and at times equally harmful. THE LEGAL REQUIREMENTS OF TITLE VII AND TITLE IX This report does not attempt to describe all features of Title VII and Title IX in detail, but instead draws out what scholars know about how these laws are working from the legal and social science perspectives and derives lessons for combating sexual harassment in science, engineering, and medicine.
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From page 97... ...
, but also their judicial interpretations as developed through case law; regulations, guidelines, and letters from each administrative agency in charge of implementing the statutes; and the internal claims filing and resolution processes in place within organizations. While definitions of sexual harassment are similar under the two laws, Title IX and Title VII have different approaches to institutional liability for sexual harassment.
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From page 98... ...
observes that "rules are developed and incentives are created with little or no attention paid to whether these legally mandated employer interventions are likely to prevent harassment or adequately redress the harm it creates when prevention fails." Noting that following the Ellerth ruling, Justice Anthony Kennedy summarized the purpose of Title VII as "encourag[ing] the creation of antiharassment policies and effective grievance mechanisms"4 rather 4 See Digest of EEO Law, Volume XI, No.
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From page 99... ...
calls "discrimination laundering." These liability standards in both the Title IX and Title VII context coupled with the organizational response can help explain the empirical trends documented in this report: policies against sexual harassment are widely in place and have been for many years, but nonetheless sexual harassment in academia continues to exist and has not decreased THE IMPLEMENTATION OF THE LEGAL REQUIREMENTS IN ACADEMIA An important accompanying feature of the antidiscrimination regulatory requirements (alongside many others applied to the contemporary academic setting) is the growth of the college or university as not only an actor in the legal system but also as its own "entire private legal system" (Edelman and Suchman 1999)
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From page 100... ...
. The mandatory arbitration clauses that are standard in many employment contracts also bar women from taking sexual harassment claims to federal courts, handing them over to a quicker and less expensive arbitration system that shields the case from scrutiny and results in smaller awards (Gough 2014; Colvin and Gough 2015)
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From page 101... ...
Adjunct and temporary faculty who are not unionized would be the most likely to work under contracts that remove access to federal courts through arbitration clauses. Even if these claims were not barred by arbitration clauses from reaching federal courts, it is still the case that judicial interpretations of Title VII have been the primary reason that law is such a weak weapon against sexual harassment (emphasizing existences of policies and trainings over their actual effectiveness when it is well documented that these are typically not effective)
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From page 102... ...
In practice, this means that almost all academic institutions must implement the requirements of this law, which has only relatively recently been visible as the primary way to respond to sexual assaults and sexual harassment on campus. Colleges and universities have been under pressure to establish policies and procedures governing the prevention of and response to sexual harassment, but just as under Title VII, it is much more difficult to ensure that such policies and procedures are effective or user-friendly.
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From page 103... ...
. In these papers, he describes the full legal and professional obligations of the nation's 25,000 Title IX compliance employees, who are subject to requirements under Title IX, Title VII, the 2013 reauthorization of the Violence Against Women Act (also known as the Campus SAVE Act)
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From page 104... ...
Yale has also established a center called the Sexual Harassment and Assault Resources & Education Center,6 where students can go to receive information and counseling, and a confidential phone hotline called "Walden,"7 where students can report incidents anonymously. The university also publishes the semiannual Report of Complaints of Sexual Misconduct and an annual campus safety report (which includes sexual harassment)
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From page 105... ...
For instance, the Supreme Court held that a woman who was given less desirable duties and removed from a supervisory position after complaining about derogatory sexual banter in a meeting ("I hear making love to you is like making love to the Grand Canyon") could not avail herself of the retaliation protection because this single incident would not meet the legal bar for a hostile work environment, and thus it was not reasonable for her to believe the conduct violated Title VII (Clark County School District v.
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From page 106... ...
Further, mandatory reporting policies allow colleges and universities to hold employees responsible who do not report incidents that have been disclosed to them, which some believe will compel administrators (e.g., department chairs, deans, etc.) to take allegations in their departments and colleges more seriously (Holland et al.
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From page 107... ...
(USED 2014, 15) Many institutions have interpreted the requirements of the OCR "Dear Colleague Letter" to include mandatory reporting of student sexual harassment disclosures to college and university officials (usually the Title IX coordinator)
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From page 108... ...
. The California Supreme Court explained it in this way: "when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or management." Legal scholar Joanna Grossman (2005)
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From page 109... ...
Consensual sexual relationships in cases of significant power differential may be important harbingers of a harmful organizational culture. On the other hand, policies regulating them may be a distraction from real problems of gender equality.
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From page 110... ...
As long as legal incentives are not in place and academic institutions are not held responsible for demonstrating that their prevention efforts are effective, trainings will likely go unevaluated, especially because a training that is found to be ineffective could expose the institution to legal liability. To ensure that sexual harassment trainings are effective, judicial interpretation of what is sufficient to meet the reasonable care requirement will have to change or academic institutions will have to be willing to risk liability and allow evaluators to study the impact of the trainings they have in place and then devote significant resources to improving them if they are found to be ineffective or, worse, have a negative effect.
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From page 111... ...
In general, federal agencies rely on the grantee institutions to investigate and follow through on Title IX violations, but given how little is known about the effectiveness and fairness of campus policies and procedures, this approach may have little real impact on addressing sexual harassment on campuses and in science, engineering, and medicine. To truly address the issue of sexual harassment, it may be necessary for federal agencies to demand that grantee institutions go beyond the requirements of Title IX.
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From page 112... ...
Brief descriptions of the processes in place at NASA, NSF, and NIH are provided in Box 5-1. BOX 5-1 How NASA, NSF, and NIH Respond to Allegations of Sexual Harassment Among Grantee Institutions NASA In a letter to grantee institutions on January 15, 2016, NASA Administrator Charles Bolden communicated NASA's sexual harassment policies, indicating that the agency does not tolerate sexual harassment and urged grantees to closely review their harassment policies and procedures.
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From page 113... ...
Prior to the award, the grantee institution must show that it is in compliance with all federal civil rights laws, including Title VI and Title IX. NASA requires the grantees to sign an "Assurance of Compliance Form."c According to NASA's MissionSTEM website, since 2006, NASA has conducted two onsite Title IX compliance reviews per year.
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SEXUAL HARASSMENT AND POLICIES ON RESEARCH MISCONDUCT AND RESEARCH INTEGRITY NSF currently defines research misconduct as "fabrication, falsification, or plagiarism (FFP) in proposing or performing research, reviewing research proposals, or in reporting research funded" (45 C.F.R.
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From page 115... ...
reiterated that the formal definition of research misconduct is designed to apply only to those issues unique to the scientific process, upheld the current definition of research misconduct, and clearly states that sexual harassment is not included. That report instead categorizes sexual harassment as "Other Misconduct" that affects the integrity of research but is "not unique to the conduct of research, even when they occur in a research environment" (75)
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From page 116... ...
Several of the authors express concern that processes in place for investigating research misconduct are ill equipped to address allegations of sexual harassment in the research and educational environment and that other jurisdictions exist to address them. When this committee interviewed a panel of deans and other senior academic administrators, issues of increased cost, lack of expertise, and increased personnel resources, and the existence already of Title IX processes were cited as reasons not to bring sexual harassment into the realm of research misconduct.
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From page 117... ...
Many of these policies require a high-level senior official be responsible for handling ethics code violations, a single investigation protocol that allows for the addition of expertise and processes related to the nature of the specific complaint, and collaboration with other jurisdictions as appropriate, and include programs for education and training. Only the AGU has changed its definition of research misconduct to extend beyond the federal definition of FFP and include sexual and other forms of harassment in their definition.29,30 However, further changes in this direction should be expected since NSF recently awarded a grant for examining and developing training materials that present sexual harassment as research misconduct.31 The advantages of adopting a broader emphasis on research integrity is that it provides multiple options for targets of sexual harassment to report behavior (either as an ethics violation or as a Title IV or VII violation)
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From page 118... ...
2. Judicial interpretation of Title IX and Title VII has incentivized organizations to create policies, procedures, and training on sexual harassment that focus on symbolic compliance with current law and avoiding liability, and not on preventing sexual harassment.
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From page 119... ...
federal funding agencies to be aware when principal investigators, co-principal investigators, and grant personnel have vi olated sexual harassment policies. It is unclear whether and how federal agencies will take action beyond the requirements of Title IX and Title VII to ensure that federal grants, composed of taxpayers' dollars, are not supporting research, academic institutions, or programs in which sexual harassment is ongoing and not being addressed.
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