WHEN IS IT SEXUAL HARASSMENT? focusing on schools

 

 

"Somebody must have been telling lies about Joseph K.; he knew he had done nothing wrong, yet he was arrested one fine morning."

                                                                                                                          Franz Kafka, THE TRIAL

If a woman wants to "get back" at some man, say a professor, she has a career-destroying weapon at her command. Simply falsely denounce him for sexual harassment. But what counts as sexual harassment? Defining it isn't easy. But this very vagueness makes it a handy weapon, for vengeance, or profit. 

Let's just look as the world of education. When, for instance, does a professor's or teacher's touching become sexual harassment? How differently may a teacher or professor treat female students before it morphs into sexual harassment? How about a professor having a framed photo of his bikini - clad wife on his desk? Is that sexual harassment? Is a college or university nurturing sexual harassment if their curriculum allegedly creates a "sexually hostile environment?" Is a college tolerating sexual harassment if a professor fails to stifle what some male student says about women in class?

For confusing input about these and similar issues, 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

Better check them all, though.  

At the local level, definitions and policies are commonly set out in some sort of Supervisory Guide. Here the details really matter. Especially if you are the accused. 

I have one such collegiate "Guide" in front of me. It looks like it was derived from boilerplate that must be widely used. Anyway, 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 employer 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."

This might sound okay at first. But the Guide deals with implicit behavior, judgements as to motivation, and judgements about reasonableness, determinations of purpose, etc. All are dangerously subjective. The Guide does elaborate somewhat. Comments like "you look nice today" are all right, if not repeated frequently. But what counts as "frequent?" That remains undefined. The Guide also notes that remarks like: "you look nice today in that tight or short (article of clothing" are generally inappropriate and "may be" sexual harassment." Then again, maybe not. It all depends on context and interpretation. 

And who does this interpretion For instance, who determine's that a glance was motivated by lascivious interest and using what criteria? And, more generally, who decides what is "sexually offensive" or "inappropriate" to begin with? In each and every instance it is the complainant, then the institution's equivalent of an Affirmative Action Officer.

This Guide chillingly advises, "If the conduct persists, or the harassed person is afraid for any reason to confront the harasser ... 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."  

Secret denunciation followed by a "confidential" investigation? That's the same procedure employed by the Inquisition,  the KGB and the Gestapo!

To encourage covert 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 denunciation, "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, and will be cause for appropriate discipline, up to and including discharge."

 In other words, any vengeful and/or mentally imbalanced female can bring false charges and risk nothing. But anyone falsely accused risks dismissal if they don't take it lying down. This an incentive for evil doing if there ever was one.

Note the wimpy rights of the accused. The Guide advises: "The alleged harasser 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 there a different tone here? The alleged victim is encouraged, even prompted to denounce anyone they please, while the accused only has "an opportunity to respond." But they have to make sure they take it lying down.

What is the accused permitted in making this "response?"Essentially what was permitted by Torquemada in one of his auto de fe's. Forbidden from confronting their accuser; never knowing what has been said about them, or by whom, during secret interrogations; not being permitted to question so-called "neutral witnesses;" being denied a record of the proceedings; the accused is permitted what? To deny the allegation — provided he's sufficiently docile and obliging while doing so.

And here's the worst of it. The accused is guilty if the investigator decides that guilt is "...more likely than not." How much "more likely" is sufficient? That depends on the investigator. Forget "beyond a reasonable doubt." And never mind that the investigator's job depends on unearthing a "harasser" now and again. 

By the way, the accuser is assured that all documents relating to her accusation(s) "will be expunged" from her record because they might have been "tainted" by the investigation. However, if the alleged harasser is found to be innocent enough, there are NO guarantees that his personnel file will be similarly "expunged." 

Secret denunciations, clandestine hearings, immunity for traducers, the trashing of reasonable doubt, all are judged necessary to offset the purported victim's fear of retaliation. Naturally, this encourages false charges from females bent on revenge, looking for other personal advantages, or who are just plain nuts. But the cause is thought to be so very urgent, that fairness and justice are needless encumbrances that must be discarded. What this all comes down to is egregious inequality pretending to be its opposite.

To further examine these and similar issues, see articles at www.newfoundations.com