Legal compliance is nothing if survivors can’t trust their institutions.

by Dwight Krehbiel, PhD, Professor Emeritus of Psychology, Bethel College

This series of posts is concerned with various aspects of sexual harassment in higher education, and especially in STEMM (Science, Technology, Engineering, Mathematics, Medicine) fields. Institutional responses to the problems arising from sexual harassment on their campuses often highlight their own compliance with relevant Federal law. This post addresses how such compliance, while important and necessary, is inadequate to achieve the goals of preventing harassment and of protecting and supporting survivors of harassment. The primary source of the evidence discussed here is again the report of the National Academies of Science, Engineering, and Medicine (NASEM, 2018)

“We follow the federal guidelines.”

The relevant laws include Title VII of the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972 (protecting against discrimination on the basis of sex), and the Clery Act of 1990 (requiring colleges and universities to report crimes on or near campus, including sexual assault). The dates just mentioned are themselves highly relevant as they demonstrate that

the existence of such laws, for which we have now had several decades of implementation, does not prevent widespread sexual harassment.

We might ask whether the laws have not been enforced or whether the nature of enforcement has been inadequate for prevention. Consideration of these questions reveals a number of limitations in legal approaches to sexual harassment.

Through the efforts of feminist scholars and feminist employees in business and government, organizational policies for preventing sexual harassment and protecting its victims took shape in the 1970s and 80s. The Equal Employment Opportunity Commission (EEOC), a federal agency responsible for civil rights enforcement and administration, issued guidelines largely based upon this work. However, the evidence required by the EEOC and the courts to demonstrate compliance with these guidelines has evolved toward emphasis on merely showing that the necessary structures are in place (e.g., policies and procedures to handle sexual harassment complaints, information supplied to employees and students about these policies and procedures). Title IX adds the specific requirement of having a staff person at the institution who is responsible for coordination of compliance, a grievance procedure, and widely publicizing the institution’s non-discrimination on the basis of sex.

While courts and federal agencies tend to treat the existence of such policies and procedures as evidence that the institutions in question are obeying the law,

courts and federal agencies are far less attentive to the question of whether or not the policies and procedures are truly effective in preventing sexual harassment.

In sum, to comply with the law, institutions must adopt appropriate policies and procedures and inform students and employees about them. Whether or not those policies work seems to be another matter entirely.

Low bar for schools, high bar for victims

Educational institutions do have liability for sexual harassment that occurs within or near the institution if there is evidence that they knew of harassment but deliberately did nothing about it (Title IX) or if there is evidence of tangible harm (e.g., firing) to an harassed employee (Title VII). However, an acceptable defense is to have exercised reasonable care in creating appropriate policies, provided appropriate training, and had a grievance procedure to prevent and correct harassment. This defense is particularly effective if the victim(s) in question have not utilized these policies and procedures. The Office of Civil Rights of the U.S. Department of Education has a number of specific criteria that must be met in order for a grievance procedure to be deemed adequate (and they’re enforced differently depending on the politics of any given presidential administration).

While in principle these requirements hold institutions accountable for sexual harassment of their employees or students, in practice the main requirements are merely that they show documentation of the specified policies and procedures. Retaliation against victims for reporting harassment violates federal civil rights law, but victims who experience retaliation have to substantiate those claims, and retaliation by its nature is difficult to prove. Victims must also often justify delays in reporting harassment, despite the fact that the majority of victims who report harassment do not report it right away. In other words,

victims have a far higher bar to clear in proving the legitimacy of their complaints than institutions do in defending themselves against such complaints.

In the end, very few harassed students and employees actually report the harassment. Scholars who study these cases have found that this tendency in the judicial system to regard the presence of adequate policies and procedures to be sufficient evidence of compliance has created a kind of symbolic civil rights for sexually harassed people. Perhaps that is why sexual harassment appears to continue largely unabated in spite of laws that have been in place for so many years.

Another element of an institutional claim to be taking actions that prevent sexual harassment is the adoption of training programs to educate faculty, staff, and students about sexual harassment. The evidence regarding the effectiveness of such training is not extensive. The impact of these trainings may be characterized in terms of effects on knowledge of harassment, on harassment behavior, or on attitudes toward harassment. Knowing more about harassment does not necessarily guarantee less sexual misconduct or altered attitudes, for example. Studies that have been done to date have somewhat mixed findings (reviewed in Roehling & Huang, 2018). The degree to which effects of training are dependent on the particular organizational context remains unclear. In addition, there is evidence that it may be necessary to match the training to the characteristics of the people being trained (Roehling & Huang, 2018).

In spite of these uncertainties, institutions are not typically required to demonstrate the effectiveness of the training that they employ. The mere fact of having adopted such training intended to reduce or prevent harassment is taken as evidence of compliance with the relevant laws.

Academia protects harassers

In the world of higher education, a tangle of related issues greatly complicate institutional responses to sexual harassment as well as any assessment of their effectiveness. Responses potentially include reporting to police and subsequent police investigations. However, colleges and universities often operate their own police or security forces, handle grievances and resolve disputes internally, and administer their own punishments and sanctions. These internal processes commonly do not involve other judicial proceedings, and publicity about them may be largely controlled by the institution itself. Privacy requirements (or perceptions thereof) pertaining to student records or personnel records may considerably curtail the transparency with which institutional responses are conducted. As required by the Clery Act, academic institutions receiving any form of federal funds are responsible for annual reporting of crime statistics, including sexual assaults. However, state laws may not require disclosure of police incident reports.

The tenure system is another feature of the academic workplace that affects responses to sexual harassment. In providing critical protections of academic freedom, this system makes termination of tenured faculty, including perpetrators of sexual harassment, a laborious process. Unfortunately the protections of tenure, both for academic freedom and for misdeeds, are very inequitably experienced in academic institutions because many faculty are not (or not yet) tenured. Considering the evidence that the academic hierarchy is a significant factor making academic institutions vulnerable to sexual harassment (Krehbiel, 2020), we can readily see that

tenure can have the (presumably unintended) effect of both protecting some harassers from accountability and heightening the risk of reporting harassment

for non-tenured faculty, as well as other employees and students.

Yet another factor promoting secrecy is non-disclosure or confidentiality agreements with those who report harassment. The worst combination of such agreements with the numerous other factors preventing transparency, described above, mean that

perpetrators are able to seek employment elsewhere if they are terminated or otherwise sanctioned because of sexual harassment.

In one recent case, even the National Science Foundation, the major funder of the NASEM report (2018), hired a grant officer with a documented history of sexual harassment because of inadequate communication from his university employer (Mervis, 2019). Fortunately some institutions have begun to develop policies to prevent this “pass-the-harasser” problem (Midwestern Higher Education Compact, 2019), but adoption of such policies is not yet widespread.

See no evil

In spite of all these characteristics of the higher education environment, we might still note that colleges and universities do indeed hire Title IX coordinators and do report crime statistics. Don’t these actions provide a significant degree of prevention and protection against sexual harassment and accountability for perpetrators? Unfortunately, numerous other complex issues arise in answering this ostensibly simple question. The position of Title IX coordinator is often part-time; that was the case in 67% of colleges and universities in a recent nationwide survey, and many have relatively little experience in this role — less than three years in 65% of these institutions (Wiersma-Mosley & DiLoreto, 2018). Many also have some other role in their institution, raising the possibility of conflicts between the demands of their dual roles. Arguably, these factors set up the majority of Title IX coordinators for failure in addressing the range of challenges described above in preventing sexual harassment, protecting survivors of harassment, and justly treating accused individuals. The tendency instead is for practices to evolve toward symbolic compliance with laws and regulations and toward avoidance of liability.

Any claim that compliance with laws demonstrates commitment to prevention of sexual harassment and support of survivors is based in the belief that harassment incidents are indeed reported to relevant institutional authorities, in particular the Title IX coordinator. Institutional reporting of crime statistics, mandated by the Clery Act, provides a valid measure of the extent of sexual harassment on the campus only to the degree that such crimes are reported. Studies of how frequently reporting actually occurs have typically found very low rates;

less than 10% of sexual harassment and violence is reported through formal college or university channels.

Thus, for example, institutional claims of low frequencies of sexual assault based on Clery crime statistics or low frequencies of formal sexual harassment complaints to the Title IX coordinator should not be taken as evidence of success in preventing sexual assault. It is widely accepted that independently administered campus climate surveys are essential though still imperfect tools for measuring frequency of sexual harassment (Krehbiel, 2020), but compliance with existing laws does not require their use. A much more likely explanation for very low Clery or Title IX complaint frequencies is perceived barriers to reporting through formal channels.

The law is just the beginning

Beyond all these considerations is an even more profound limitation of a legal compliance approach to sexual harassment. It is that gender harassment, one of the three major categories of sexual harassment covered in the NASEM report (2018) — one that is recognized to have grave implications for the careers, health, and mental health of those who are targets of it (Voth, Schrag, & Krehbiel, 2019)– is generally not illegal. (The NASEM report defines gender harassment as “sexist hostility and crude behavior”; a previous post in this series defines it as “behaviors that are hostile, objectifying, [and/or] exclusionary.”) Institutions that trumpet their compliance with laws and regulations as evidence of their commitment to protecting their students and employees against sexual harassment are not setting a very high bar for themselves. If they are not assessing their campus climate, they not only have no idea of the real frequencies of incidents of unwanted sexual attention and of sexual coercion on their campuses, but also they have no assessment whatever of the extent of gender harassment.

While it is certainly desirable for institutions of higher education to comply with the laws pertaining to sexual harassment, to show that institutional behavior is lawful is not the same as showing that the interests of those who have experienced or are vulnerable to experiencing sexual harassment are being prioritized by that institution. To show those priorities, colleges and universities must instead assess the climate on their campuses regarding sexual harassment, must undertake efforts to modify that climate to reduce sexual harassment in all its forms, and must work to support and earn the trust of survivors who come forward.

References

Krehbiel, D. (2020). Why sexual harassment is common in academic institutions. Into Account blog. Retrieved from: https://intoaccount.org/2020/01/22/why-sexual-harassment-is-common-in-academic-institutions/

Mervis, J. (2019, November 29). Universities move to stop passing the harasser. https://www.sciencemagazinedigital.org/sciencemagazine/29_november_2019/

Midwestern Higher Education Compact. (2019, October 23). Stop passing the harasser: Rethinking the hiring process. https://www.youtube.com/watch?v=rFM7I98uUsY

National Academies of Sciences, Engineering, and Medicine (NASEM), Committee on the Impacts of Sexual Harassment in Academia, & Committee on Women in Science, Engineering, and Medicine, Policy and Global Affairs (2018). Sexual harassment of women: Climate, culture, and consequences in academic sciences, engineering, and medicine (P. A. Johnson, S. E. Widnall, & F. F. Benya, Eds.). https://doi.org/10.17226/24994

Roehling, M. V., & Huang, J. (2018). Sexual harassment training effectiveness: an interdisciplinary review and call for research. Journal of Organizational Behavior, 39(2), 134–150. https://doi.org/10.1002/job.2257

Voth, C., Schrag, M., & Krehbiel, D. (2019). Everyone’s responsibility: the health impact of sexual harassment. Into Account blog. Retrieved from: https://intoaccount.org/2019/08/13/everyones-responsibility-the-health-impact-of-sexual-harassment/