As the grievance officer at the School of the Art Institute of Chicago, I participated on a team that worked on refining this school's sexual harassment policy approximately two years ago. Because the school is both an employer and an institution of higher learning, implementing and communicating such a policy was uniquely challenging. Here's why: Employers only are responsible for regulating the conduct of staff members as that conduct's directed at other staff members. But because schools also are learning institutions, they must regulate the conduct of faculty and staff as it's directed at faculty, staff and students, in addition to the harassing conduct of students as it's directed at faculty, staff or other students.
As such, two separate federal anti-discrimination laws apply: Title IX of the Educational Amendments of 1972 and Title VII of the 1964 Civil Rights Act. Although both laws require adopting policies on sexual harassment that establish grievance mechanisms and prompt appropriate action on charges that are found to have merit, each law protects a specific group of individuals and requires different procedures and remedies for sexual harassment.
Title VII prohibits sexual discrimination by an employer, but extends its protection only to those individuals who have an employment relationship or are applying for employment. In an academic context this covers faculty and staff. Students would be covered only if they're employed by the school. Title IX prohibits discrimination on the basis of gender of students in institutions of higher learning that are receiving federal funds. Its scope is broader and covers all students, not just those who are employed at the facility.
Title VII provides reinstatement with back pay and limited compensatory and punitive damages to victims of sexual harassment. Title VII victims also are entitled to a jury trial. Under Title IX, neither damages nor a jury trial are available. An institution in which members are guilty of violating Title IX must discontinue the prohibited action or face elimination of federal funding.
The policy in place prior to two years ago pertained to the Art Institute and was outlined in the museum's employee handbook. It wasn't explicit enough to encompass all of these elements. It also didn't address how victims from each of the communities—staff, faculty and students—should report and handle misconduct directed toward them.
To ensure that all issues pertaining to each group would be addressed in a revised policy, a policy-formation team was assembled, comprising myself, the dean of students, the assistant dean of multicultural affairs, a member of the faculty senate, a staff senate member and a representative from the student body. The team not only sought input from each of the communities affected by the policy, it also created a sense of ownership and a willingness to get the policy through the approval process.
The team defines sexual harassment as it pertains to the school's various communities.
The team concluded that the first thing any policy should contain is an understandable definition of sexual harassment. We found that altering EEOC's definition by deleting verbiage pertaining specifically to employment and adding language to include advancement or academic success fit our purposes. The definition as we refined it reads:
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, advancement or academic success, (2) submission to or rejection of such conduct by an individual is used as the basis for 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.
We determined that the first and second elements of the definition pertain to supervisory personnel and faculty as potential harassers. The third element expands the list of potential harassers to include co-workers, non-employees and students.
The issue of harassing conduct of student to student is less clear. Regulations prohibiting hostile-environment sexual harassment have the potential of restraining a student's expression of opinion. In contrast, the purpose of an educational institution is to promote the development of new thoughts, and expressing opinions is encouraged. In a school of art especially, where such discussion as the form and figure of the human body often takes place, having restraints raises difficult First Amendment issues. The Office of Civil Rights currently is developing policy statements to provide guidance to academic institutions on this issue. In the meantime, if such an incident should occur, we would rely on a Student Concerns Committee Hearing Board.
Having defined sexual harassment as it pertains to our communities, we worked on developing a formal reporting process for victims of sexual harassment. We determined that besides stating the school's position on sexual harassment, the most vital part of a policy is to detail the procedure of how an individual can file a complaint and bring the matter to the attention of management.
Many individuals who've been victims of sexual harassment feel traumatized and violated. If the reporting mechanism for this type of situation clearly is delineated and advertised with a contact person identified, the reporting of incidents of harassment would be made substantially easier for the victim. We believed that having a designated person as the recipient of complaints would encourage individuals to come forward. In addition, this will help make victims of sexual harassment feel that the organization considers this issue important enough to assign a specific individual to handle it.
We identified the highest positions responsible for each category of victim (student, faculty or staff) to serve as the initial points of contact. If the victim is a student, he or she would contact either the dean of student affairs or the assistant dean of multicultural affairs. Faculty members who are victims would contact either the dean or associate dean of the school. Staff members would contact a supervisor, their department head or the organization's grievance officer.
These individuals would then enlist the help of the other most appropriate contact person for the case to assist them in an investigation. For example, if a faculty member complained to the dean about harassment from a student, the dean would contact the dean of students, and they would investigate the charges together.
Sexual harassment policy addresses confidentiality issues.
Because of the various reporting structures, First Amendment issues and classifications of victims, how we respond and investigate such complaints becomes more complicated. Therefore, in developing a policy on sexual harassment, we took care to clarify the process on how complaints are managed.
During our formulating sessions, the issue of confidentiality and its usage in the policy raised concerns and lengthy discussions. There was concern that any individual coming forward to challenge the harassing conduct of another person would sacrifice his or her privacy. Likewise, the person charged with harassing conduct would risk his or her reputation and possible ridicule by peers in the academic community while an investigation was being conducted.
So, we determined that it was important that the policy clearly convey how the issue of confidentiality would be handled.
In our attempts at conveying this information, we included a segment in our initial drafts under a section titled Suggested Responses that read: "Students also may seek the advice of the dean of student affairs to determine whether the matter can be resolved satisfactorily on an informal basis. This discussion is confidential with no written record."
This verbiage eventually was dropped for the following reasons: First, this wording implies that a student could raise his or her concerns about possible sexual harassment to the dean of student affairs and be assured that the issue would go no further. Second, the statement that no written record is made of the conversation implies that the dean of students has the discretion to choose whether or not to investigate. This isn't the case.
So we replaced the original statement with one that explains that the school must investigate, at least informally to begin with, the incident that's brought to its attention, and take appropriate corrective action if indicated. The statement also indicates that we'll attempt to protect from unnecessary disclosure the details of the incident being investigated and the identities of the complaining party and alleged harasser. We felt that by describing the limits of the school's ability to maintain confidentiality, we would prevent misunderstandings, and this in turn would enhance the credibility of our grievance procedure.
There certainly will be situations in which the identity of the complaining party needn't be disclosed. This occurs, for example, in a situation in which a student in class is offended by the conduct of the teacher. Because this situation of environmental sexual harassment occurs in front of a class, it can be verified easily by interviewing other students. In the majority of cases, however, the identity of the complaining party and details of the harassment will need to be made known during the course of the investigation.
Once a situation of possible harassment is reported, the contact person must at least begin informal investigations to see if there's validity to the charges. This informal approach can consist of something as simple as asking discreet questions to individuals who may have witnessed some of the inappropriate behavior.
If the informal investigation indicates that there is validity to the charges, management then must proceed with a more formal investigation. During this process, the appropriate contact people would interview both the accused and the accuser and any possible witnesses, getting statements from all parties and rendering a decision.
New sexual harassment policy receives positive remarks.
Because the team had representatives from each segment of the academic community, the sexual harassment policy easily was ratified. And, despite the academic community's resistance to any policies that control behavior or expression of free thought, the individuals who have championed the cause of free speech and expression as it relates to this issue have been in the minority. Most agree that sexual harassment isn't expression of free thought—it's offensive, illegal and a misuse of power.
All in all, the policy—encapsulated in brochures that we distribute to students, faculty and staff, and post throughout campus—has been well received. After it had been in effect for approximately one year, the committee that created the policy got back together to evaluate it. The policy has been used three times at the school. Among these people who used the policy and followed the reporting procedure, there have been no complaints. In fact, committee members who handled the cases said that they received congratulations for clarifying how to handle a difficult and confusing situation. The people to whom they talked found the policy useful and were glad to see it in effect.
We feel that by having a strong, clear, well-defined and enforced policy on sexual harassment, we can empower the members of the academic and school community to step forward and declare their intolerance of this type of behavior. When this occurs, all members of the community benefit.
Personnel Journal, August 1994, Vol.73, No. 8, pp. 76-79.