Sexual Harassment Charges

It is amazing how often colleges and universities mishandle sexual harassment cases. The one presented about years of sexual harassment by a professor at North Carolina State and nothing done about it serves as one exampale of that. I have done a nationwide studies of how sexual harassment charges are dealt with (Eisenman, 1997, 1998, 1999, 2002). Often, people who seem clearly guilty are let off or never charged, while perhaps even more often, people who have done little wrong are prosecuted or persecuted, and may lose their jobs. The latter occurs because the concept of “sexual harassment” is a sloppy one, and also because there are many true believers who are in charge of dealing with sexual harassment cases (Patai, 1998). These true believers, also called the sexual harassment industry, often see men as the enemy and women as victims, and respond accordingly, even when the facts do not fit their view.

TRUE BELIEVER OR PROTECTING ONESELF

Even when the person is not a true believer, they may want to protect themselves so that the federal or state government does not give the school less money or take sanctions against the university.

SLOPPY CONCEPT:THE TWO COMPONENTS

Regarding sexual harassment as a sloppy concept, there are two major components: quid pro quo (e.g., sleep with me and you will get an “A") which is seldom the charge, and hostile environment. Most cases are the latter, and hostile environment is such a vague, sloppy concept that it can be applied to almost anything: looking at someone the wrong way (called “lookism,” telling an off-color joke, responding to sexual seduction, etc.

LIKE RUSSIAN SHOW TRIALS

From my observations, sexual harassment charges are like the Russian show trials: once you are charged, you are convicted. Thus, some get away with sexual harassment, often because they are bringing in money to the university or due to administrative lack of insight and response.

References

Eisenman, R. (1997). The reality of sexual harassment charges: Worse than you think. Women’s Freedom Network Newsletter, Summer, 4 (3), p. 11.

Eisenman, R. (1998). A case history of sexual harassment charges: Protecting women or an academic witch hunt? In C. Young (ed.), Rethinking sexual harassment. (Women’s Freedom Network Working Paper III) (pp. 53-59). Washington, DC: Women’s Freedom Network.

Eisenman, R. (1999). Sexual harassment charges against university faculty: Three case histories. Journal of Information Ethics, 8(2), 59-75.

Eisenman, R. (2002). Fair and unfair sexual harassment charges. Journal of Evolutionary Psychology, 23, 36-39.

Patai, D. (1998). Heterophobia: Sexual harassment and the future of feminism. Lanham, MD: Rowman & Littlefied.

Author’s Note: Russell Eisenman, Ph.D., Department of Psychology, University of Texas-Pan American, Edinburg, TX 78541-2999, USA.

Russell Eisenman, Ph.D., at 5:59 pm EDT on July 5, 2005

First of all, people, sexual harassment is not a crime, itself. Some of the professor’s actions might be criminal, but it is unclear as to exactly what happened. Whatever the case, no criminal charges were ever filed.

Second of all, people who are “clearly guiltly” often are not, and usually one only hears one side of a story of “clear guilt.” Indeed many people think it is acceptable to say “we know he did it.”

Mr. Eisenman seems to be confusing two competing theories of discrimination with “components.” A “Hostile environment” or “quid pro quo” sexual harassment need not both be shown to recover under most state’s civil rights acts – only one of them need be shown. (For a description of these theories, see Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999) available at http://touchngo.com/sp/html/sp-5084.htm.) I don’t think that they are sloppy, but rather they show how sexual harassment, as a tort, or injury is really derived from a statutorily-imposed duty not to discriminate and not a battery or criminal sexual assault.

Mr. Eisenman does raise an interesting point, however: that when someone DOES get “due process,” the system is often rigged against the accused. Of course Ms. Allen doesn’t like the idea of ANY due process and even thinks that allowing tenured professors to hire counsel is annoying, and thinks it would be much better to fire people when they don’t have tenure regardless of whether the accusations meet any articulated standard of proof.

While some universities might not take complaints of sexual harassment against some professors seriously, many complaints are made by people who are flaky or just not credible. Believe it or not, many students don’t want to “rock the boat” or file sworn affidavits, yet alone testify! Indeed, some people have actually told me that they think that accepting “some” sexual harassment is part of getting ahead, and have bragged to me about having flirted with professors to get good grades or extensions on papers. Of course I find this deplorable, but some people think it is a normal part of life.

Larry, at 1:08 pm EDT on July 6, 2005

I didn’t say that “hostile environment” sexual harassment was obvious, but rather that its definition is well-known. California’s definition is pretty typical. See e.g. Guthrey v. State of California, 63 Cal.App. 4th 1108, 1122-23 (1998) (holding that the elements of sexual harassment are ” ‘(1) [p]laintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” ‘)

As to your argument that Title VII (or similar state laws) as applied to hostile environment sexual harassment is so vague as to invalidate it, it might be worth noting that the SCOTUS in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 594 (1982) laid down the following test: —- In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law. —-The only question that remains is whether individual conduct creates an “abusive” working environment. So far, nobody has claimed that their behavior (or their employee’s behavior) if, as the plaintiff described, would not have put them on notice that they were treating a person differently because of their gender. But, who knows, maybe you can show me such a case.

Larry, at 7:51 pm EDT on July 6, 2005

Just two little points worth harping on:

1) The due process you refer to derives from the 5th and 14th amendments, not the 6th. Under this standard, a state institution would have to comply with the concept of “fundamental fairness” which, according to the SCOTUS’s jurisprudence requires: notice, counsel, confrontation, cross-examination, and standard of proof. (Though counsel need not be free or competent, and the scope of confrontation required by the 5th (not the 6th) is somewhat of a grey area at the moment.)

2) Some states (perhaps a minority) impose, even on employers of employees at will, a covenant to treat “like employees alike” otherwise known as “objective good faith.”

There are some fun cases floating around with regard to #1 (such as holding that a sham administrative trial, but a bona fide administrative appeals process satisfies the 5th amendment), but I am sure that I bored y’all.

(My last post on this seems to have been eaten, and it included specific caselaw on the subject, so, on request I can provide you with the cases.)

Larry, at 10:35 am EDT on July 7, 2005

Jeanette,

You seem to have a lot of anger and jealousy towards me. You also fail to address my arguments specifically, but this might be cultural.

Whatever the case, I am not requiring asking that you believe my first-person accounts. Instead, my first-person accounts have informed my experience and I only provide them in the interest of disclosing any possible biases that I may have. So, to make it perfectly clear: I think that all professors should receive a high degree of procedural protection from termination because I think that accusations of misconduct may be fueled by certain desire to blackmail, extort, or otherwise manipulate an institution. If, on the other hand, you think that all accusations of sexual harassment are credible, perhaps a lesser amount of protection is warranted. So, for example, if we knew that girls NEVER LIED about sexual harassment, an unsigned anonymous statement would be enough to terminate a professor (even a tenured one in some cases, depending on the nature of their contract). However, I disagree with this view.

If you want to rebut a specific argument that I made, please ago ahead. If you persist in disagreeing with me without providing specifics, you are only going to convince more people that the 19th amendment was a bad idea.

I have not used any legalese that has not been defined or cited. Even people who disagree with me have not claimed that I was hiding behind any jargon.

Girl power, at 8:52 am EDT on July 8, 2005