Astronomy
Reproduced from the July Issue of STATUS: A report on Women in Astronomy. By Sheryl Bruff, Branch Chief of Human Resources, Space Telescope Science Institute and Bernice Durand, Emerita Vice Provost for Diversity and Climate at the University of Wisconsin.
The American Astronomical Society (AAS) has an anti-harassment policy [1], and has stated its commitment to leadership in developing ?people? skills and its desire to identify and disseminate best practices and tools. This talk was proposed and developed to further the AAS membership?s knowledge of what constitutes harassment and how individuals and institutions should respond to it. It was presented at the Seattle Annual Meeting of the American Astronomical Society January 10, 2011.
Why should we care?
Great science and discovery are enabled by an open climate where individuals are free to share knowledge, opinions, beliefs and ideas. This cannot and will not happen if a segment(s) of the practitioners are disenfranchised and disrespected. We see ongoing efforts to broaden participation in astronomy, particularly for women and under-represented minorities. In astronomy, there is an established, though fragile, trend in these directions. Full engagement of these constituencies hinges on creating a climate of inclusion, respect and openness.
Harassment is pervasive
Since harassment was first recognized as an issue on college campuses in the early 1980s, the frequency of complaints has increased. While all members of the academic community are potential victims of unwelcome sexual behavior, a majority of the complainants are female students, faculty and staff.
Over 60% of undergraduate women and men report they have experienced sexual harassment, and 20-30% of undergraduate female students report that they have been victims of some form of sexual harassment by at least one of their professors. When this was expanded to include sexist remarks, the number rose to 75% [2].
What is harassment?
This is a simple question with a complex answer. An example of inappropriate and poor human behavior, harassment has been described carefully in laws and rules. There are various permutations of the statements in the next six paragraphs; these carefully chosen words have been debated, selected, and tested in court.
Harassment is a pattern of abusive and/or degrading conduct, or a single incident of extreme behavior, directed against an individual(s) on the basis of his or her sexuality or membership in a protected class.
Harassment can also be unwelcome verbal, visual or physical conduct of a nature that is severe and/or pervasive and adversely affects working conditions or creates a hostile work environment.
Harassment is a form of discrimination. It is a form of bullying. It is persistent, unwelcome and intolerable. It can be severe or pervasive or both.
Generally an isolated comment or action will not rise to being harassment unless significantly egregious. However, a number of relatively minor incidents may add up to harassment. The perceived power of one individual over another can ?set the stage.?
The different forms of harassment require different vocabulary. One is referred to as tangible action, which includes quid pro quo (?this for that?), in which decisions and/or actions affecting status are based on a person?s response to unwelcome conduct (verbal, sexual, etc.).
The other is referred to as hostile environment, in which sufficiently severe and pervasive unwelcome verbal, non-verbal, and/or physical conduct based on sex, gender, race, etc., interferes with a person?s work or learning or program performance or creates a hostile, intimidating, or offensive environment.
A prerequisite for the victim!
For behavior to be categorized as harassment requires that the victim hold membership in a protected class, which may be based on sex, gender (membership in class rather than sexual in nature), race, age, national origin, religion, disability, or marital status.
Note: protected classes often vary by state and local jurisdiction. They may be based on physical qualities, sexual orientation and/or identification, health, etc.
Verbal or written, visual, or physical harassment
The following are examples of three forms of harassment:
There is growing interest in the effects of bullying, a behavior similar to harassment that generally has not been dealt with by lawmakers and courts, but could still have exposure in tort law. Organizations should develop expectations, policies, processes, etc. to address bullying.
Impacts of harassment, both individually and organizationally
Harassment limits open discussion, ideas, creativity, research and discovery. Two frequent results of being a victim of harassment are loss of productivity and poor work performance. Harassment, or any similar behavior applied to individuals because of gender, race, etc., often leads to adverse physical and mental impacts on the individual, loss of opportunity (when poor performance is not understood as a symptom of harassment), and potentially, exit from the position or even the profession.
For an organization, issues of harassment place a drain on resources (economic and personnel) needed to investigate claims, as well as lead to lawsuits, loss of reputation and even loss of federal funds for violating the law.
What if it happens to you?
Do not remain silent. Speak up! Object to the harasser, if possible, either verbally or in writing. Keep documentation and records. Identify and try to gather information from those who witness and/or also have been affected by this behavior.
You might fear that asking someone for advice will involve you in a procedural process that will make matters worse. In fact, unless you are yourself an expert on the nuances and legalities of addressing harassment, you will need help. Find out whom to contact by asking someone you trust, such as a supervisor, mentor, adviser, or counselor, or by consulting your organization?s website for a contact name. If these suggestions don?t help, report the behavior to an appropriate Human Resources (HR) representative, or if you?re a student, to the Dean of Students. Many organizations allow multiple avenues for reporting.
Although it can appear overwhelming or intimidating, speaking up and reporting are the only way that these situations will diminish. If people don?t know about the problem, they can?t take appropriate action to stop these kinds of behaviors. There are many guidelines built into the process to protect you.
A way to remember this is, ?consultation is not escalation.?
?Conditional confidentiality?
Off-putting though it may sound, absolute confidentiality cannot always be guaranteed when you tell someone about being harassed. The nature of the offense may mandate action, and everyone who witnesses or knows about harassment has a legal obligation to report it to someone who can address it. However, the situation will be managed to the highest level of confidentiality possible.
What to expect from your institution
The most important element for any institution hoping to address sexual harassment (SH) is leadership from the top. There should be a highly positioned SH response officer; there can also be a network of knowledgeable contact people throughout the organization.
Another important element is well-crafted and well- advertised policies, such as posters on sexual harassment in all workplace and classroom buildings, and a good web site.
A critical element for attempts to reduce harassment, and at the same time increase reporting of incidents, is to hold Sexual Harassment Information Sessions (SHIS) for employees, students, etc. This is in the interest of the institution, which has a legal liability for allowing harassment to take place.
Examples
The following organizational examples are provided to illustrate the kinds of programs and resources that may be available where you work or study. They illustrate the kinds of practices and policies that many organizations put in place. Check with your own organization/institution to determine what resources are available and how to access them.
Institutional action - STScI
The STScI Director initiates some, and backs all, policies on fair treatment as well as family- and female-friendly policies.
The STScI HR Branch Chief (Sheryl Bruff, one co-author of this article) is in charge of trainings, investigations, and discipline (which is backed up by the Director). People know to call or drop in on Sheryl and that she will guide and support them.
There are harassment awareness posters and a website with policies and procedures. All employees were given anti-harassment training, and new employees, including post docs, graduate students and interns, must complete training as part of their orientation.
Institutional action - UW-Madison
The UW-Madison provost mandates Sexual Harassment Information Sessions (SHIS) for all ?limited? appointees (administrative appointees have limited terms). Some, but not all, deans and directors mandate this training for many other university employees, including Teaching Assistants and Project Assistants. It would be ideal but daunting to have training for all 60,000 citizens of campus.
The training is led by the Provost?s Office and Office for Equity and Diversity (OED). The other co-author of this article (Bernice Durand) jointly oversaw the training when she was Vice Provost for Diversity and Climate for five recent years [3]. A small group of dedicated volunteers lead the information sessions.
The Director of OED, currently Luis Pin?ero [4], is the top ?go-to? person in cases of harassment. Sexual harassment information sessions always include to ?call Luis? if you need to know what to do about harassment. He is responsible for the advice that ?consultation is not escalation.?
There once was a broad campus network of contact people, about one to two per unit (departmental, administrative, research center, student services, etc.). However, we found that on a large campus a shorter list of contact people improved consistency and still met the need. The most recent list includes several of the deans of students, as well as persons trained to assist employees.
A link to one of the Non-Discrimination Posters is on the UW-Madison Office for Equity and Diversity home page, as well as a link to Sexual Harassment Information and Resources [5] The second link has more information on harassment than would fit in this whole edition of STATUS, including definitions, what to do, case studies, consequences, policies, the brochure handed out in information sessions, and information on safety and sexual assault.
...In the eye of the beholder
Harassment is a complex subject. One of the most difficult aspects about it is that there are no concrete guidelines, no ?black and white.? We have found in discussing case studies that the phrase, ?it depends? pops up a lot.
?Hostile Work Environment? is often in the eye of the beholder, thus hard to define. We need to work on being sure everyone ?gets it.? Here are examples of the kinds of statements or thinking that have made progress difficult.
Here is our list of what it will take to decrease harassment. How does your institution stack up?
Appendix A
General background information
American Association of University Women (AAUW) Study
In a 2005 AAUW Educational Foundation study on sexual harassment at colleges and universities titled ?Drawing the Line: Sexual Harassment on Campus,? the claim was made that while both men and women were targets of sexual harassment, ?women are disproportionately negatively affected.? Some other findings follow.
Some highlights of the history of harassment law (Wikipedia has a long entry on this subject)
Federal acts
Title VII of the Civil Rights Act of 1964
Title IX of the Higher Education Amendments of 1972
Age Discrimination in Employment Act (ADEA) of 1967
Age Discrimination Act (ADA) of 1975
Americans with Disabilities Act (another ADA) of 1990
Samples of influential case law
Meritor Savings Bank vs. Vinson, 1986, recognized certain forms of sexual harassment as a violation of the Title VII of the Civil Rights Act of 1964 and established standards for hostile working environment as distinguished from ?economic? or ?tangible? discrimination.
Faragher vs. City of Boca Raton, 1994, established that employers are liable for harassment by their employees.
Burlington Industries, Inc. vs. Ellerth,1998, established that employers are vicariously liable if supervisors create a sexually hostile work environment.
Anita Hill?s testimony in the Clarence Thomas Confirmation Hearings, 1991, which highlighted aspects and complexities of hostile work environment, raised national awareness of sexual harassment. We suggest the reader choose among online references on this testimony.
Some legal aspects
The following samples from the literature do not constitute legal opinions or guidance. We are not lawyers and have never even played them on TV!
Harassment generally must result in a ?tangible employment action;? e.g., hiring, pay, promotion, references, work assignments, etc., or a ?hostile work environment;? e.g., unreasonable interference with an individual?s work performance via an intimidating or offensive working environment. ?Quid pro quo? is an aspect of ?tangible action.?
Those ?employers? that can be considered liable include both organizations and individuals. The EEOC has jurisdiction; however, cases can go immediately to lawsuit.
Litigation can include actions in tort/personal injury law (as distinguished from criminal law). Tort injuries may be brought to court by the injured individual. Some examples are intentional infliction of emotional distress, libel, slander and defamation.
Organizations are not just liable for harassment by employees, but can be held responsible for harassment perpetrated on their employees by third parties such as vendors, customers, contractors, etc.
State and federal laws protect against retaliation, such as taking adverse action against someone for making a good faith claim or for cooperating in an investigation. Retaliation is considered more egregious than the initial act. Where harassment can sometimes be defended as ?unintentional,? retaliation is considered deliberate and many organizations view it as a dismissible event.
Investigation of a claim of harassment
If a claim is made?personally or organizationally? there is a legal and ethical responsibility to report, investigate and act. One is not permitted to simply ?keep it off the record.? This information should be disclosed to an individual making a claim. Investigations are generally discreet, but absolute confidentiality cannot always be guaranteed. (Recall the term ?conditional confidentiality? in this context.) Most organizations will do their best to protect all parties? privacy during the investigatory phase.
It can be helpful for the responsible institutional officer to create a summary investigatory document containing a summary of the claim; initial expectations for the investigation, outcome, and time frame; an initial list of all interviewees and witnesses; and strong language on protections against retaliation.
The institution should identify and consistently utilize appropriate sanctions and remedies if a claim is substantiated, and be sure to provide the claimant with the outcome of the investigation?though not necessarily the details?of disciplinary actions, if taken.
Appendix C
Index of UW-Madison OED Sexual Harassment Home [7]
Appendix D
Two Case Studies and some vignettes [8]
Case One
Two students who work part-time in an office on campus are having trouble getting along in the office. Their supervisor interviews each of them. Both report that they used to be great friends and often went out for beer together after work. The male student asserts that the tension resulted from his rejection of the female student?s sexual advances. He claims that ever since he rejected her, she has said nasty personal things to him and about him to other members of the office staff, creating a hostile work environment. The female student says that the tension resulted from the male
student?s condescending attitude and disrespect for her work. She claims that the other student belittles her and denigrates everything she does in the office.
Case One discussion questions: Put yourself in the position of the supervisor. Watch for ?it depends,? when analyzing these examples!
Case Two
A professor and a research associate employed by the professor attend a professional meeting out of town and have a one-night sexual encounter. Both are in long-term relationships and agree that the affair will not continue when they return to campus.
Case Two discussion questions: Imagine you are the professor.
About the authors
Sheryl Bruff is the Branch Chief of Human Resources at Space Telescope Science Institute.
Bernice Durand is Emerita Professor of Physics and Emerita Vice Provost for Diversity and Climate at the University of Wisconsin-Madison.
We wish to thank Dr. Dara Norman, NOAO, the AAS session organizer, and the CSWA and CSMA for co-sponsorship of the anti-harassment session; and Dr. Katy Garmany, editor of STATUS, for inviting us to turn our talks into prose.
Footnotes
[1] Anti-Harassment Policy for Meetings and Activities of the American Astronomical Society and Divisions
[2] Drawing the Line: Sexual Harassment on Campus; See more in Appendix A.
[3] Maureen ?Mo? Bischof is the current contact person in the provost?s office.
[4] Both Luis Pin?ero and Mo Bischof are willing to answer any questions we can?t.
[5] In Appendix C we give the Index for the UW OED Sexual Harassment web site.
[6] See the 2009 talk by Professor Abigail Stewart of the University of Michigan in Women in Astronomy and Space Science: Meeting the challenges of an increasingly diverse workforce (pp 51-61). The talk is also at Addressing Unconscious Bias.
[7] All UW-Madison material is used with permission from the administrators responsible for the policy development, dissemination, and enforcement.
[8] These were crafted from real-life cases, changed beyond recognition yet no doubt literally true somewhere!
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Fed Up with Sexual Harassment II: Strategies for Addressing and Overcoming Harassment
The American Astronomical Society (AAS) has an anti-harassment policy [1], and has stated its commitment to leadership in developing ?people? skills and its desire to identify and disseminate best practices and tools. This talk was proposed and developed to further the AAS membership?s knowledge of what constitutes harassment and how individuals and institutions should respond to it. It was presented at the Seattle Annual Meeting of the American Astronomical Society January 10, 2011.
Why should we care?
Great science and discovery are enabled by an open climate where individuals are free to share knowledge, opinions, beliefs and ideas. This cannot and will not happen if a segment(s) of the practitioners are disenfranchised and disrespected. We see ongoing efforts to broaden participation in astronomy, particularly for women and under-represented minorities. In astronomy, there is an established, though fragile, trend in these directions. Full engagement of these constituencies hinges on creating a climate of inclusion, respect and openness.
Harassment is pervasive
Since harassment was first recognized as an issue on college campuses in the early 1980s, the frequency of complaints has increased. While all members of the academic community are potential victims of unwelcome sexual behavior, a majority of the complainants are female students, faculty and staff.
Over 60% of undergraduate women and men report they have experienced sexual harassment, and 20-30% of undergraduate female students report that they have been victims of some form of sexual harassment by at least one of their professors. When this was expanded to include sexist remarks, the number rose to 75% [2].
What is harassment?
This is a simple question with a complex answer. An example of inappropriate and poor human behavior, harassment has been described carefully in laws and rules. There are various permutations of the statements in the next six paragraphs; these carefully chosen words have been debated, selected, and tested in court.
Harassment is a pattern of abusive and/or degrading conduct, or a single incident of extreme behavior, directed against an individual(s) on the basis of his or her sexuality or membership in a protected class.
Harassment can also be unwelcome verbal, visual or physical conduct of a nature that is severe and/or pervasive and adversely affects working conditions or creates a hostile work environment.
Harassment is a form of discrimination. It is a form of bullying. It is persistent, unwelcome and intolerable. It can be severe or pervasive or both.
Generally an isolated comment or action will not rise to being harassment unless significantly egregious. However, a number of relatively minor incidents may add up to harassment. The perceived power of one individual over another can ?set the stage.?
The different forms of harassment require different vocabulary. One is referred to as tangible action, which includes quid pro quo (?this for that?), in which decisions and/or actions affecting status are based on a person?s response to unwelcome conduct (verbal, sexual, etc.).
The other is referred to as hostile environment, in which sufficiently severe and pervasive unwelcome verbal, non-verbal, and/or physical conduct based on sex, gender, race, etc., interferes with a person?s work or learning or program performance or creates a hostile, intimidating, or offensive environment.
A prerequisite for the victim!
For behavior to be categorized as harassment requires that the victim hold membership in a protected class, which may be based on sex, gender (membership in class rather than sexual in nature), race, age, national origin, religion, disability, or marital status.
Note: protected classes often vary by state and local jurisdiction. They may be based on physical qualities, sexual orientation and/or identification, health, etc.
Verbal or written, visual, or physical harassment
The following are examples of three forms of harassment:
- Verbal or written: jokes about sex, race, religion, etc.; disparaging comments about membership in a protected class, etc.; comments about clothing, personal behavior or a person?s body; rumors; threats; emails, blogs, etc.; poor interpersonal skills; and more.
- Visual: posters, drawings, pictures, screensavers, emails, looks or gestures; and more.
- Physical: assault; impeding or blocking movement; inappropriate touching of a person or person?s clothing; kissing; hugging; patting; stroking; oblivion to personal space preferences and/or customs; and more.
There is growing interest in the effects of bullying, a behavior similar to harassment that generally has not been dealt with by lawmakers and courts, but could still have exposure in tort law. Organizations should develop expectations, policies, processes, etc. to address bullying.
Impacts of harassment, both individually and organizationally
Harassment limits open discussion, ideas, creativity, research and discovery. Two frequent results of being a victim of harassment are loss of productivity and poor work performance. Harassment, or any similar behavior applied to individuals because of gender, race, etc., often leads to adverse physical and mental impacts on the individual, loss of opportunity (when poor performance is not understood as a symptom of harassment), and potentially, exit from the position or even the profession.
For an organization, issues of harassment place a drain on resources (economic and personnel) needed to investigate claims, as well as lead to lawsuits, loss of reputation and even loss of federal funds for violating the law.
What if it happens to you?
Do not remain silent. Speak up! Object to the harasser, if possible, either verbally or in writing. Keep documentation and records. Identify and try to gather information from those who witness and/or also have been affected by this behavior.
You might fear that asking someone for advice will involve you in a procedural process that will make matters worse. In fact, unless you are yourself an expert on the nuances and legalities of addressing harassment, you will need help. Find out whom to contact by asking someone you trust, such as a supervisor, mentor, adviser, or counselor, or by consulting your organization?s website for a contact name. If these suggestions don?t help, report the behavior to an appropriate Human Resources (HR) representative, or if you?re a student, to the Dean of Students. Many organizations allow multiple avenues for reporting.
Although it can appear overwhelming or intimidating, speaking up and reporting are the only way that these situations will diminish. If people don?t know about the problem, they can?t take appropriate action to stop these kinds of behaviors. There are many guidelines built into the process to protect you.
A way to remember this is, ?consultation is not escalation.?
?Conditional confidentiality?
Off-putting though it may sound, absolute confidentiality cannot always be guaranteed when you tell someone about being harassed. The nature of the offense may mandate action, and everyone who witnesses or knows about harassment has a legal obligation to report it to someone who can address it. However, the situation will be managed to the highest level of confidentiality possible.
What to expect from your institution
The most important element for any institution hoping to address sexual harassment (SH) is leadership from the top. There should be a highly positioned SH response officer; there can also be a network of knowledgeable contact people throughout the organization.
Another important element is well-crafted and well- advertised policies, such as posters on sexual harassment in all workplace and classroom buildings, and a good web site.
A critical element for attempts to reduce harassment, and at the same time increase reporting of incidents, is to hold Sexual Harassment Information Sessions (SHIS) for employees, students, etc. This is in the interest of the institution, which has a legal liability for allowing harassment to take place.
Examples
The following organizational examples are provided to illustrate the kinds of programs and resources that may be available where you work or study. They illustrate the kinds of practices and policies that many organizations put in place. Check with your own organization/institution to determine what resources are available and how to access them.
Institutional action - STScI
The STScI Director initiates some, and backs all, policies on fair treatment as well as family- and female-friendly policies.
The STScI HR Branch Chief (Sheryl Bruff, one co-author of this article) is in charge of trainings, investigations, and discipline (which is backed up by the Director). People know to call or drop in on Sheryl and that she will guide and support them.
There are harassment awareness posters and a website with policies and procedures. All employees were given anti-harassment training, and new employees, including post docs, graduate students and interns, must complete training as part of their orientation.
Institutional action - UW-Madison
The UW-Madison provost mandates Sexual Harassment Information Sessions (SHIS) for all ?limited? appointees (administrative appointees have limited terms). Some, but not all, deans and directors mandate this training for many other university employees, including Teaching Assistants and Project Assistants. It would be ideal but daunting to have training for all 60,000 citizens of campus.
The training is led by the Provost?s Office and Office for Equity and Diversity (OED). The other co-author of this article (Bernice Durand) jointly oversaw the training when she was Vice Provost for Diversity and Climate for five recent years [3]. A small group of dedicated volunteers lead the information sessions.
The Director of OED, currently Luis Pin?ero [4], is the top ?go-to? person in cases of harassment. Sexual harassment information sessions always include to ?call Luis? if you need to know what to do about harassment. He is responsible for the advice that ?consultation is not escalation.?
There once was a broad campus network of contact people, about one to two per unit (departmental, administrative, research center, student services, etc.). However, we found that on a large campus a shorter list of contact people improved consistency and still met the need. The most recent list includes several of the deans of students, as well as persons trained to assist employees.
A link to one of the Non-Discrimination Posters is on the UW-Madison Office for Equity and Diversity home page, as well as a link to Sexual Harassment Information and Resources [5] The second link has more information on harassment than would fit in this whole edition of STATUS, including definitions, what to do, case studies, consequences, policies, the brochure handed out in information sessions, and information on safety and sexual assault.
...In the eye of the beholder
Harassment is a complex subject. One of the most difficult aspects about it is that there are no concrete guidelines, no ?black and white.? We have found in discussing case studies that the phrase, ?it depends? pops up a lot.
?Hostile Work Environment? is often in the eye of the beholder, thus hard to define. We need to work on being sure everyone ?gets it.? Here are examples of the kinds of statements or thinking that have made progress difficult.
- ?But s/he should understand how I am...my culture ...my style...?It is important to understand that harassment is about the audience, not the actor. It is about the impact, not the intent.
- ?That?s the way things are.?
Privilege and power are often based on unconscious schemas/ biases of the dominant group, which create a ?blind spot.? - ?That?s not what I meant!? It doesn?t matter what was meant. It matters what was heard/experienced/perceived. ?Unintentional? defense in hostile work environment claims often is the result of unknown, unquestioned or unevaluated schemas and biases.
- ?She?s a trouble maker.? ?It can?t be true or she wouldn?t have put up with it.? ?He?s playing the _____ card to avoid responsibility.?
People who bring claims are often disbelieved; the motives of the complainant are mistrusted. The default belief should be that the person bringing a complaint has had a ?real? experience and that s/he is bringing the claim for good reason.
Here is our list of what it will take to decrease harassment. How does your institution stack up?
- Develop, distribute, conduct briefings on, and enforce, your policies.
- Train everyone on what constitutes prohibited behavior and what gives rise to harassment.
- Apply a ?Reasonable Woman? test: ?Would a reasonable woman find that offensive?? (This can be varied for any protected class.)
- Create a shared understanding of what is or isn?t acceptable.
- Encourage examination and discussion of attitudes and behaviors towards others.
- Question biases and schemas. This other, related topic is worth pursuing. [6]
- Open communication - speak up.
- Organizations must act! Ensure consistent response, action and consequences.
- Understand the rights and responsibilities of both those it happens to and those that see it happening.
Appendix A
General background information
American Association of University Women (AAUW) Study
In a 2005 AAUW Educational Foundation study on sexual harassment at colleges and universities titled ?Drawing the Line: Sexual Harassment on Campus,? the claim was made that while both men and women were targets of sexual harassment, ?women are disproportionately negatively affected.? Some other findings follow.
- 62% of female college students and 61% of male college students report having been sexually harassed at their university.
- 66% of college students know someone personally who was harassed.
- 10% or fewer of student sexual harassment victims attempt to report their experiences to a university employee.
- 35% or more of college students who experience sexual harassment do not tell anyone about their experiences.
- 80% of students who experienced sexual harassment report being harassed by another student or former student.
- 39% of students who experienced sexual harassment say the incident or incidents occurred in the dorm.
- 51% of male college students admit to sexually harassing someone in college, with 22% admitting to harassing someone often or occasionally.
- 31% of female college students admit to harassing someone in college.
Some highlights of the history of harassment law (Wikipedia has a long entry on this subject)
Federal acts
Title VII of the Civil Rights Act of 1964
Title IX of the Higher Education Amendments of 1972
Age Discrimination in Employment Act (ADEA) of 1967
Age Discrimination Act (ADA) of 1975
Americans with Disabilities Act (another ADA) of 1990
Samples of influential case law
Meritor Savings Bank vs. Vinson, 1986, recognized certain forms of sexual harassment as a violation of the Title VII of the Civil Rights Act of 1964 and established standards for hostile working environment as distinguished from ?economic? or ?tangible? discrimination.
Faragher vs. City of Boca Raton, 1994, established that employers are liable for harassment by their employees.
Burlington Industries, Inc. vs. Ellerth,1998, established that employers are vicariously liable if supervisors create a sexually hostile work environment.
Anita Hill?s testimony in the Clarence Thomas Confirmation Hearings, 1991, which highlighted aspects and complexities of hostile work environment, raised national awareness of sexual harassment. We suggest the reader choose among online references on this testimony.
Some legal aspects
The following samples from the literature do not constitute legal opinions or guidance. We are not lawyers and have never even played them on TV!
Harassment generally must result in a ?tangible employment action;? e.g., hiring, pay, promotion, references, work assignments, etc., or a ?hostile work environment;? e.g., unreasonable interference with an individual?s work performance via an intimidating or offensive working environment. ?Quid pro quo? is an aspect of ?tangible action.?
Those ?employers? that can be considered liable include both organizations and individuals. The EEOC has jurisdiction; however, cases can go immediately to lawsuit.
Litigation can include actions in tort/personal injury law (as distinguished from criminal law). Tort injuries may be brought to court by the injured individual. Some examples are intentional infliction of emotional distress, libel, slander and defamation.
Organizations are not just liable for harassment by employees, but can be held responsible for harassment perpetrated on their employees by third parties such as vendors, customers, contractors, etc.
State and federal laws protect against retaliation, such as taking adverse action against someone for making a good faith claim or for cooperating in an investigation. Retaliation is considered more egregious than the initial act. Where harassment can sometimes be defended as ?unintentional,? retaliation is considered deliberate and many organizations view it as a dismissible event.
Investigation of a claim of harassment
If a claim is made?personally or organizationally? there is a legal and ethical responsibility to report, investigate and act. One is not permitted to simply ?keep it off the record.? This information should be disclosed to an individual making a claim. Investigations are generally discreet, but absolute confidentiality cannot always be guaranteed. (Recall the term ?conditional confidentiality? in this context.) Most organizations will do their best to protect all parties? privacy during the investigatory phase.
It can be helpful for the responsible institutional officer to create a summary investigatory document containing a summary of the claim; initial expectations for the investigation, outcome, and time frame; an initial list of all interviewees and witnesses; and strong language on protections against retaliation.
The institution should identify and consistently utilize appropriate sanctions and remedies if a claim is substantiated, and be sure to provide the claimant with the outcome of the investigation?though not necessarily the details?of disciplinary actions, if taken.
Appendix C
Index of UW-Madison OED Sexual Harassment Home [7]
- What is Sexual harassment?
- Tangible Action or Quid Pro Quo Harassment
- Hostile Environment
- What to do about sexual harassment?
...if you feel you?ve been sexually harassed
...if you are accused of inappropriate conduct
...if you are in a position of authority
...if you are a colleague or peer - Expectations -- If you are approached by someone who thinks he or she has been harassed.
- Advice for conversations
- Protection from retaliation -- State and federal laws and university policy protect against retaliation.
- Consequences of sexual harassment and legal liability
For the Individuals
For the University - Campus policies
- Prohibited Harassment Policy
- Sexual Harassment Policy for Classified Employees
- Consensual Relationship Policy -- Institutions should have a policy setting out the responsibilities of two individuals in a romantic and/or sexual relationship who have a reporting or evaluative relationship.
- Campus resources
- Information sessions
- Goals & Outcomes
- Brochure (a pdf file)
- Case Studies
- Vignettes (What?s a Person to do?)
- Safety and Sexual Assault
Appendix D
Two Case Studies and some vignettes [8]
Case One
Two students who work part-time in an office on campus are having trouble getting along in the office. Their supervisor interviews each of them. Both report that they used to be great friends and often went out for beer together after work. The male student asserts that the tension resulted from his rejection of the female student?s sexual advances. He claims that ever since he rejected her, she has said nasty personal things to him and about him to other members of the office staff, creating a hostile work environment. The female student says that the tension resulted from the male
student?s condescending attitude and disrespect for her work. She claims that the other student belittles her and denigrates everything she does in the office.
Case One discussion questions: Put yourself in the position of the supervisor. Watch for ?it depends,? when analyzing these examples!
- What might happen if you do nothing?
- What could happen if you leave it to the two students to work out?
- What should you do next?
Case Two
A professor and a research associate employed by the professor attend a professional meeting out of town and have a one-night sexual encounter. Both are in long-term relationships and agree that the affair will not continue when they return to campus.
Case Two discussion questions: Imagine you are the professor.
- What should you do next? Why?
- What if word of the event spreads throughout the lab and other members of the group complain that the research associate is getting preferential treatment?
- What if, six months later, you decide to terminate the research associate?s position?
About the authors
Sheryl Bruff is the Branch Chief of Human Resources at Space Telescope Science Institute.
Bernice Durand is Emerita Professor of Physics and Emerita Vice Provost for Diversity and Climate at the University of Wisconsin-Madison.
We wish to thank Dr. Dara Norman, NOAO, the AAS session organizer, and the CSWA and CSMA for co-sponsorship of the anti-harassment session; and Dr. Katy Garmany, editor of STATUS, for inviting us to turn our talks into prose.
Footnotes
[1] Anti-Harassment Policy for Meetings and Activities of the American Astronomical Society and Divisions
[2] Drawing the Line: Sexual Harassment on Campus; See more in Appendix A.
[3] Maureen ?Mo? Bischof is the current contact person in the provost?s office.
[4] Both Luis Pin?ero and Mo Bischof are willing to answer any questions we can?t.
[5] In Appendix C we give the Index for the UW OED Sexual Harassment web site.
[6] See the 2009 talk by Professor Abigail Stewart of the University of Michigan in Women in Astronomy and Space Science: Meeting the challenges of an increasingly diverse workforce (pp 51-61). The talk is also at Addressing Unconscious Bias.
[7] All UW-Madison material is used with permission from the administrators responsible for the policy development, dissemination, and enforcement.
[8] These were crafted from real-life cases, changed beyond recognition yet no doubt literally true somewhere!
Fed Up with Sexual Harassment II: The Solution Series
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Tuesday: Information Escrows
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Thursday: The SAFE Study
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