Sexual harassment in higher education.

Abstract

Countless claims of sexual harassment have been filed throughout American companies, colleges, and universities. During the early 1980's, the impact and scope of sexual harassment problems were recognized on college campuses. Due to increased awareness of the problem, the frequency of complaints on college campuses and universities has dramatically increased. Relevant issues regarding sexual harassment in higher education including its history and policy issues are addressed.

Introduction and Background

Long before sexual harassment was identified as a problem for women students in higher education, it had been recognized as an external barrier to the adjustment of women in the workforce (Fitzgerald et al., 1988). "The central concept of sexual harassment is the misuse of power, whether organizationally or institutionally, in a manner that constructs a barrier to women's educational and occupational pursuits" (Fitzgerald et al., 1988, p. 174). Harassment often forces a student to forfeit work, research, educational goals, or even careers. Evidence exists that harassment can result in serious psychological and practical consequences for female students (Dziech & Weiner, 1984; Townsley & Geist, 2000; DeSouza & Fansler, 2003).

Kaplan and Lee (1995) indicated that victims of sexual harassment as well the harassers themselves are both male and female; suggest that, any and all members of academia are at risk. However, the bulk of complaints of sexual harassment come from female students, faculty, and staff (Kaplan & Lee, 1995; Kelley & Parsons, 2000; Cummings & Armenta, 2002). When the definition of harassment is expanded to include sexist remarks and other forms of gender harassment, the incidence rates among undergraduate women exceed seventy-five percent (Fitzgerald, et al., 1988; Hobson and Guziewicz, 2002). The Office for Civil Right (OCR) stipulates that sexual harassment can be categorized into two areas: quid pro quo and hostile environment. Quid pro quo essentially means something for something. Harassment involves making conditions of employment (hiring, promotions, retention) contingent upon the victim's providing sexual favors. (Kracunas v. Iona College Nos. 290, 879 August Term, 1996). In the late 1970's, Courts began to recognize that quid pro quo sexual harassment violates Title VII. (Korf v. Ball State University., 726 F. 2d 1222).

To prove quid pro quo sexual harassment it is necessary to prove that a person was a member of a protected class (pertaining to gender, race, age, and religion); the person was subjected to unwelcome sexual harassment; the harassment was based on sex, and the person's reaction to the harassment affects tangible aspects of her or his compensation, terms, concessions, or privileges of employment. A quid pro quo example relating to higher education could involve the request for sexual favors in exchange for a passing score in a course. Hostile environment sexual harassment occurs when unwelcome sexual conduct reasonably interferes with an individual's job performance or creates hostile, intimidating or offensive work environment. The harassment does not have to result in tangible or economic job consequences, that is, the person may not lose pay or promotion. To prove hostile environment sexual harassment, it is necessary to prove that the harassment was unwelcome; the harassment was based on membership in a protected class (a group named in law as protected from discrimination); the harassment was sufficiently severe or pervasive to create an abusive working environment, and the employer had actual knowledge of the environment, but took no prompt and remedial action. A hostile environment could include a faculty member's persistence with unwelcome behavior toward a student. Whatever the case, sexual harassment is illegal because it is a form of sexual discrimination that is prohibited by Federal law (Hobson & Guziewicz, 2002; DeSouza & Fansler, 2003).

Boyer (1990) established that more than sixty percent of presidents surveyed at large research and doctoral institutions indicated sexual harassment was a concern on their campuses. Furthermore, up to thirty-percent of undergraduate female students are the victims of some form of sexual harassment by at least one of their professors during their undergraduate years (Boyer, 1990). Surveys of American college students disclose that many students perceived they had been victims of some form of sexual harassment. Keller (1998) specified that thirty-percent of University of California at Berkeley female seniors reported harassment by at least one male instructor (Keller, 1998). A similar survey conducted at Iowa State University found that nearly forty-five percent of students thought they experienced verbal sexual advances (Keller, 1998). Townsley and Geist (2000) added that even after the passage of time from Title VII of the Civil Rights Act of 1964, which was extended to higher education in 1972, and Title IX in 1972, twenty to thirty percent of undergraduate women, thirty to forty percent of graduate women, and close to fifty percent of women faculty experience some form of sexual harassment. A vast majority according to Hobson and Guziewicz (2002), over ninety-seven percent of institutions have a formalized sexual harassment policy in place to protect all stakeholders at the institution. Furthermore, ninety percent of institutions started internal investigations of all student complaints. The following examples of behaviors could be defined as sexual harassment:

* Asking about a person's sexual fantasies, sexual preferences, or sexual activities

* Pressuring for sexual activity

* Unwelcome patting, hugging, or touching of a person's body, hair, or clothing

* Repeatedly asking for a date after the person has expressed disinterest

* Expressing sexual innuendoes, jokes, or comments

* Making sexual gestures with hands or through body movements

* Making disparaging remarks to a person about his/her gender

* Making suggestive facial expressions such as licking lips or wiggling the tongue

Sexual harassment of women workers has been a problem for as long as women have worked outside the home. The Supreme Court first ruled on sexual harassment in a 1986 opinion relating to Meritor Savings Bank v. Vinson. In that opinion, the court established and defined that the two before mentioned actions (quid pro quo and hostile work environment) were illegal under Federal law. Title VII bars discrimination in the workplace on the basis of race, sex, religion, and national origin. This early decision emphasized particularly flagrant examples of harassment but gave little guidance in the application of the rulings. In lower court decisions, a plaintiff has to prove that the offensive behavior made the workplace so hostile that it seriously affected her psychological well-being or led her to suffer injury (Hobson & Guziewicz, 2002). The Supreme Court has also decided upon statutory violations, predominately under Title VII of the 1964 Civil Rights Act, and Title IX of the Educational Amendments of 1972, which focus on discrimination in employment and education. The same general principles that apply to sexual harassment in the workplace also apply in academic settings. In addition, there is difficulty in drawing the line between sexual harassment and intimate consensual relations (Hutchens, 2003). Hutchens (2003) discussed that even thought institutions of higher education have established policies regarding consensual relationships between students and faculty, the area as a matter of law is still considered 'gray'. In general, sexual harassment of students in colleges and universities "increasingly justifies disciplinary actions against a faculty or staff member, generally under a charge of unethical conduct" (Cole, 1986, p. 272).

Now recognized as an important barrier to women's career development, sexual harassment has proven difficult to study due to lack of a commonly accepted definition and any standardized instrument that could provide comparable results across studies (Fitzgerald, 1988). Kelley and Parsons (2000) discovered that most women do not like nor approve of the behavior, but that few attempt to handle the situation through formally established means. A vast majority (anywhere from eighty to ninety percent) of women do not even file a formal complaint and they end up ignoring it or telling a close friend. This unfortunate circumstance makes it even harder for researchers and institution administration to get a full understanding of a pattern of behavior.

Terms Pertaining to Sexual Harassment

In 1964, Congress enacted the Civil Rights Act and codified what is commonly known as Title VII of 42 U.S. Code Section 2000e which provide "It shall be an unlawful employment practice for an employer--to hire or refuse to hire or discharge an individual, or otherwise with respect to his compensation terms, conditions, or privileges of employment because of such individual's race, color, sex, or national origin (Cole, 1986, p. 277). Title VII is not a clean language act, and it does not require employers to extirpate all sings of centuries old prejudices. Isolated incidences, flirting and inferential characterizations of comments as propositions do not establish sexual harassment (Cole, 1986). In 1972, Title IX was enacted to prevent sexual discrimination in the educational environment. The purpose behind Title IX was to make sure that no person in the United States should be denied benefits, on the basis of sex, from participation in any educational program or activity receiving federal financial assistance. Title IX requires universities and other federally funded educational institutions to establish grievance procedures for alleged violations (Cole, 1986).

The Difference between Title VII and Title IX

The Civil Rights Act of 1964 and Title IX of the educational amendments of 1972, set the stage for formulating university policy regarding sexual harassment and more than amorous relationships between faculty and students.

Title VII: The Law under Title VII has developed more rapidly and fully. It is broader, with applications pertaining to sexual harassment and greater numbers of actions are filed under VII than IX (Cole, 1986).

Title IX: Enacted to prevent sexual discrimination in the educational environment. A student who is not an employee of the university and is sexually harassed by a faculty member has no recourse under Title VII, which applies to only employer-employee relations. For relief the student must proceed under Title IX. "In a Title IX case, an educational institution is liable upon a finding of hostile environment sexual harassment perpetrated by its supervisors upon employees if an official representing that institution knew, or in the exercise of reasonable care, should have known, of the harassers occurrence, unless that official can show that he/she took appropriate steps to halt it." (Cole, 1986, p. 277).

In 1980, the Equal Employment Opportunity Commission (EEOC) enacted guidelines pursuant to the Title VII defining sexual harassment. The Courts adopted (EEOC)'s definition and classified sexual harassment under Title VII into two categories (quid pro quo and hostile work environment). In both categories, the harassing behavior must be inflicted by a person in a position of authority against persons in subordinate roles over whom the former can exert authority. The purpose of hostile work environment is to discourage blatant or persistent misconduct, but not to deter normal friendships and communication between co-workers (Cole, 1986). Reviews of several policies (University of Iowa, University of Michigan, University of California) pertaining to amorous relationships between faculty and students include that faculty members and students shall not have amorous relations (consensual or not) if the student is enrolled in the faculty member's course. Amorous relations between faculty members and students occurring outside the instructional content may lead to difficulties, but are not prohibited as long as the faculty member avoids participation in decisions that could penalize or reward the student (Keller, 1988).

Overall it is prohibited for faculty to have intimate relations with current students enrolled in their courses. The University of California system in July 2003 pass a new policy making it unacceptable for faculty members to engage in any sexual behavior with students enrolled in their classes or those that may enroll in their classes. Administrators are trying to stem the flow of legal liability from a consensual relationship between a student and faculty member. Furthermore, the administration is also responding to negative publicity that such incidents bring to the institution. Opponents of the consensual relationship policy argue that it is an unnecessary intrusion into the private lives of two consenting adults and that Title IX was never designed to cover such situations. Administrators are trying to weigh the need to protect all stakeholders against the need to balance privacy between two consenting adults (Hutchens, 2003).

Conclusion

Due to the increased awareness of the magnitude, dimensions, effects of sexual harassment at educational institutions, and the potential to institutional liability, this has prompted educators to adopt policies that prohibit sexual harassment of employee and students. Institutions ranging from privates, such as Brown University and Duke University to publics, such as the University of Iowa and the University of California system, have implemented policies that have changed the evolution of sexual harassment on campus. Universities are considered areas of 'free speech' and 'open thought', however, with the constantly changing landscape of a definition of acceptable and unacceptable behavior, the lines of legality are sometimes blurred (Hutchens, 2003). Many private and public institutions include these policies in their faculty and student handbooks (Keller, 1996). Institutional leaders should draft definitions of what constitutes sexual harassment through explicit policies that prohibit such actions and grievance procedures for resolving the complaints. Kaplan and Lee (1995) add that,

   Advance preventative planning is the key to successful management
   of these issues, as the EEOC Guidelines indicate. Institutions
   should involve the academic community in developing specific
   written policies and information on what the community will
   consider to be sexual harassment (p. 246).

References

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Korf v. Ball State University 726 F.2d 1222 0984)

Kracunas v. Iona College F. 2d. 96-7128b (1997)

Townsley, N. & Geist, P. (2000). The discursive enactment of hegemony: Sexual harassment and academic organizing. Western Journal of Communication, 64(2), 190-217.

Diana Bruns, Bacone College, OK

Jeff W. Bruns, Bacone College, OK

Diana L. Bruns is an Associate Professor and Department Chair of the Criminal Justice Program. Jeff W. Bruns is an Assistant Professor and Dean of the School of Business.