By Arthur Katz, J.D.
It seems that not a day goes by without another revelation of a known figure being accused of sexual harassment, many times coupled with sexual assault
Harassment occurs, among other times, when inappropriate conduct (which need not be of a sexual nature) is tolerated by the harassed party because of intimidation (which may be explicit or implicit) by one person (whether a boss, a teacher or merely someone of perceived importance or respect) over another (who may be a student, an employee, an assistant or merely someone who is in the wrong place at the wrong time). It is pernicious and non-productive, irrespective of the circumstances and serves no useful purpose except, perhaps, to gratify the harasser or bully.
There is no single definition of sexual harassment. The federal government, in 29C.F.R. (which deals with labor regulations), states in §1604(a) that “harassment on the basis of sex is a violation of … Title VII of the 1964 Civil Rights Act. §1604(a) then continues:
“In the workplace unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
Unfortunately, sexual harassment occurs not just in the workplace, but in the school environment as well as in other everyday activities. As the highlighted language makes clear, sexual harassment is similar to bullying, and when the ramifications are physical and intrusive, the harassment becomes sexual assault.
In reading many of the published accounts of sexual harassment, the perpetrator recites that nothing wrong was done since the other participant was of legal age and the acts were innocent or were consented to. However, in situations where the perpetrator is in a position of power or has supervisory influence over the other party, consent, although construed by the perpetrator based upon the actions (or reaction) of the other party, may not be given freely even when there is no evidence that the actions of the perpetrator were ever contested. This fact has been recognized on many college campuses which have set forth disciplinary rules of conduct requiring that sexual activity will be deemed to be improper and volatile unless specific affirmative verbal consent be given to the activity before it commences.
Keeping an environment free from harassment requires good policies, sound procedures, common sense and, in many instances, training. However, and based upon my professional experience, these factors, by themselves, do not always create a productive and safe environment. What is missing is the so-called “tone at the top” which I have come to believe is the most critical element to countering harassment. Without leadership dedicated to cultivating a harassment-free environment and, when it occurs, taking immediate actions to investigate and properly deal with even the slightest whiff of harassment, followed by appropriately punishing the harassers (including by termination of the relationship), harassment can not be stopped and is exacerbated. Unfortunately, dealing with an act of harassment is not a simple task, especially when the remedial action may be termination of employment, expulsion from an educational institution or reporting the event to the public and /or to the authorities for further investigation.
Although I try not to be pessimistic, I do not believe that major improvements in the law will be made in the near future despite the current publicity. Instead, we will need to continue to carefully follow and understand cases interpreting Title VII as well as state laws, many of which are unclear and difficult to understand. Additionally, and as a practical matter, victims of harassment will continue to be, directly or indirectly, subject to retaliation making it difficult to discern when harassment occurs. #