Good Judgment and Common Sense
Good Judgment and Common Sense
2001 Office for Civil Rights Revised Sexual Harassment Guidance: An analysis
By Margaret D. Weeks and Mary Jo McGrath, J.D.
On January 19, 2001, the U.S. Department of Education Office for Civil Rights (OCR) issued its long-anticipated revised sexual harassment guidance entitled, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties”. Stressing that it is not deviating essentially from its earlier (March 13, 1997) guidelines, OCR issued the revisions because two recent important U.S. Supreme Court cases dealt expressly with Title IX and sexual harassment in educational institutions that are covered by Title IX. These two cases are Gebser v. Lago Vista Independent School District, 524 U.S. (1998) and Davis v. Monroe County Board of Education, 526 U.S. (1999). Tying the Title IX prohibition against sexual harassment to school safety, OCR reiterates in the new guidance that sexual harassment is a form of sex discrimination that affects a victim’s ability participate in or benefit from school programs and/or activities. Specifically, the new guidance “…continues to provide the principles that a school should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance.”
Stressing that both the Gebser and Davis cases were brought to court to determine liability standards regarding private actions for monetary damages, OCR in its new guidance carefully distinguishes its handling of a Title IX sexual harassment complaint from its perspective as an administrative enforcement arm of government as opposed to a court where an individual is seeking dollar damages. In fact, OCR drops all references to liability in the new guidance other than in the Preamble where it discusses the Gebser and Davis cases in detail, preferring instead to explain its own OCR process of notifying a school of a complaint and then working with the school to ensure compliance with Title IX.
In a particularly pointed comment, the new guidance notes,” The important thing is for school employees or officials to pay attention to the school environment and not to hesitate to respond to sexual harassment in the same reasonable, commonsense manner as they would to other types of serious misconduct.” Further, OCR notes, “[S]chools [should] not overreact to behavior that does not rise to the level of sexual harassment.”
OCR also, in the new guidance, stresses the importance of having a well publicized and effective grievance procedure in place to handle all sex discrimination complaints, one type of which may be sexual harassment allegations. OCR reiterated its 1997 comments by noting that “…Strong policies and effective grievance procedures are essential to let students and employees know that sexual harassment will not be tolerated and to ensure that they know how to report it.”
The new guidance stresses that schools benefit from having a strong grievance procedure because it provides the school with a mechanism for discovering sexual harassment as early as possible and for remedying the effects of the harassment once it is determined to have happened. School policies and procedures signal, the guidance contends, to students and others that sexual harassment will not be tolerated and that actions will happen if it does occur. Schools must have procedures that do not hamper reporting or prompt action regarding sexual harassment allegations. If such blocks are in place, the school will be found to have violated Title IX and must take steps to remedy harm to victims caused by these blocks to effective and prompt action to stop, remedy and/or prevent a hostile environment.
The Guidance includes specific information as to the elements that OCR has identified in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the procedures provide for the following:
- Notice to students, parents of K-12 students and school employees of the procedure, including where complaints may be filed;
- Application of the school’s grievance procedure to complaints alleging harassment carried out by employees, other students or third parties;
- Adequate, impartial and reliable complaint investigation (including the opportunity to present witnesses and other evidence);
- Designated and reasonably prompt timeframes for the major stages of the investigative process;
- Notice to the parties of the outcome of the complaint investigation; and,
- An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the victim and others (if appropriate).
The procedures must be understandable to students, in language appropriate to students, and widely disseminated. The Guidance clearly states, “Distributing the procedures to administrators, or including them in the school’s administrative or policy manual, may not by itself be an effective way of providing notice…” Policies and procedures may vary widely among schools in specificity, detail and components to reflect local norms and State or other pertinent laws or regulations.
OCR recognizes that timeliness may be strongly affected by the complexity of an investigation and the severity or extent of the harassment that it is investigating.
Grievance procedures may include formal and informal mechanisms for resolving sexual harassment complaints. OCR does advise “it is not appropriate for a student who is complaining of harassment to be required to work out the problem directly with the individual alleged to be harassing him or her, and certainly not without appropriate involvement by the school (e.g., participation by a counselor, trained mediator, or, if appropriate, a teacher or administrator.)
Title IX permits a school to use student disciplinary procedures as long as the prompt and equitable requirements regarding resolutions of complaints are met. In the case of possible criminal conduct, the OCR Revised Guidance reminds schools that criminal investigations by law enforcement may not be the sole criteria of whether Title IX has been violated. The same holds true for investigations conducted by insurance companies. Further, the school must meet the prompt and effectiveness standards regardless of the outcome(s) of any other agency’s investigation. A school is “not relieved of its responsibility to respond to a sexual harassment complaint filed under its grievance procedure by the fact that a complaint has been filed with OCR.”
Effective Response Required
In the new guidance, OCR drops the word “appropriate” from its discussion regarding a school’s response to a finding that sexual harassment has occurred. Instead it uses the term “effective.” OCR’s reasoning involves the idea that Title IX has always required an effective response if a violation of Title IX has been found. Effectiveness is based on a “reasonableness” standard. Obviously, the guidelines continue, the appropriateness idea is not the standard per se. Reasonableness is the standard. It would, OCR notes, be apparent to a reasonable person that if initial steps are ineffective at stopping the harassment, then reasonableness may require a series of escalating steps. Coupled with this reasonableness standard is the caution that commonsense and good judgment are required in handling any sanction imposed against an individual who sexually harasses another in a school (which implies the concept of appropriateness). Instead, the action taken is labeled reasonable and effective in stopping the harassment from happening again and in helping the victim to recover from the harassment.
Students and Quid pro Quo Sexual Harassment
This type of sexual harassment occurs, according to the revised guidelines, if a teacher or other employee conditions an educational decision or benefit on a student’s submission to unwelcome sexual conduct. In an interesting comment, OCR notes, “Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment.” This statement implies that there are certain conditions under which a student may be guilty of quid pro quo sexual harassment. Rather than categorize actions as quid pro quo, OCR may well identify behaviors complained of as hostile environment sexual harassment, depending on the context in which the behaviors happen.
Hostile Environment Sexual Harassment
The new guidelines note several factors that must be considered in making a determination regarding whether an action constitutes hostile environment sexual harassment:
- The degree to which the conduct affects one or more students’ education;
- The type, frequency and duration of the conduct;
- The identity and relationship between the alleged harasser and the subject(s) of the harassment;
- The number of individuals involved;
- The age and sex of the alleged harasser and the subject(s) of the harassment;
- The size of the school, location of the incidents, and the context in which they occurred;
- Other incidents at the school; and,
- Incidents of gender-based, but nonsexual harassment.
OCR stresses, “…It is the totality of the circumstances in which the behavior occurs that is critical in determining whether a hostile environment exists. Consequently, in using the factors listed previously to evaluate incidents of sexual harassment, it is always important to use commonsense and reasonable judgment in determining whether a sexually hostile environment has been created.”
The new guidelines discuss gender-based harassment and note that in itself, this is not considered sexual harassment. Rather, gender harassment is a form of sex discrimination (as is sexual harassment) that is nonsexual in its content. OCR stresses that if gender harassment (that may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping) rises to a level that denies or limits a student’s ability to participate in or benefit from the educational program of a school, then the school must “respond to such harassment in accordance with the standards and procedures described in this guidance.”
Gender harassment may be factored into an investigation when hostile environment sexual harassment is alleged and may be the “tipping” factor when one weighs the pervasiveness of hostile environment sexual harassment. OCR notes that even though, in itself, it is not considered serious enough to show adverse impact, when coupled with sexual harassment, gender harassment may become an important context piece of an investigation that should be considered.
Nexus between Sexual Harassment and Sexual Orientation Harassment
In the new guidelines, OCR reiterates that Title IX does not prohibit discrimination on the basis of sexual orientation. Rather, OCR notes that it may constitute sexual harassment if the behavior itself meets two tests: 1) the behavior is sexual in content and 2) the behavior negatively affects an individual’s access to or benefits from a school’s educational program(s). The guidance then includes an example of an instance in which a male student or group of male students target a gay student for physical sexual advances as constituting sexual harassment if the behavior serious enough to deny or limit the gay student’s ability to participate in or to benefit from a school’s program.
OCR notes in the new guidance that sexual conduct is considered unwelcome if a student does not request or invite it and regards it as undesirable or offensive. Drawing heavily on Title VII case law, OCR then discusses the concept further by noting that a student who acquiesces to sexual conduct of others does not necessarily agree that the behavior is welcome. Further, a student who participates at one point in sexual conduct on one occasion cannot be prevented from finding the conduct unwelcome on another occasion. OCR then remarks, “On the other hand, if a student actively participates in sexual banter and discussion and gives no indication that he or she objects, then the evidence generally will not support a conclusion that the conduct was unwelcome.”
In considering the idea of “unwelcomeness,” OCR takes particular note of the problems that arise when the alleged harasser is an adult and the alleged victim is a minor student. Elementary school age children are not ever considered by OCR of being capable of consenting to such sexual harassment from an adult; the older the student is, the more OCR will examine the evidence to determine whether the sexual conduct was (or was not) consented to by the student. In all cases, OCR continues in the guidance, the presumption is that the conduct was unwelcome unless evidence directly contradicts this. Further, OCR will examine two interrelated factors when dealing with allegations raised by secondary or postsecondary students where the alleged harasser is an adult:
- The nature of the conduct and the relationship of the school employee to the student, including the degree of influence (that could be in some part affected by the age of the student victim), authority or control over the victim; and
- Whether the student was legally or practically unable to consent to the sexual behavior in question (e.g., a student’s age could affect an ability to consent as could a student’s certain type of disability).
OCR then once again indirectly refers to the EEOC by listing its standards regarding welcomeness. The OCR guidance notes the types of information that should be sought by an investigator if the alleged victim is a student and the alleged harasser is an adult to determine how welcome a sexual behavior is by the receiver. These listed types of information include the following:
- Witness statements;
- Credibility of the alleged student victim and of the alleged harasser
- Past instances of harassment perpetrated by the alleged harasser;
- Past instances of false claims by an alleged victim;
- Evidence of the responses of the alleged victim to the harassment, including those that may be delayed and occur several weeks after the alleged incident;
- Evidence that the alleged victim filed a complaint regarding the alleged harassment or took other action to protest the conduct immediately after it occurred. Special note should be made if an investigation uncovers that the alleged victim feared reprisal or disbelief and, therefore, delayed in objecting to the conduct; and,
- Other contemporaneous evidence (e.g., journal or diary entries or comments made to others by the alleged victim).
School Responsibilities to Address Sexual Harassment
Adult Employee Harassment of Students
A school, OCR notes, has the responsibility to respond promptly and effectively to sexual harassment. When the alleged harasser is a teacher and the alleged victim is a student, OCR will proceed to determine if the behavior complained of occurred in the context of the employee’s provision of aid, benefits or services to students. In determining this important factor, school responsibility attaches if the employee carries out the harassment during the performance of her/his responsibilities in relation to students. This includes teaching, counseling, supervising, advising and/or transporting students. In addition, the behavior complained of must deny or limit a student’s ability to participate in or benefit from a school program on the basis of sex.
If investigation finds that those two conditions are met, then the school is considered responsible for the behavior. The school is responsible for remedying the effects of the behavior, whether or not it has actual or constructive notice of it. (OCR considers constructive notice to be the following: A responsible school employee, in exercise of reasonable care, should have known about the harassment.)
OCR will make a determination as to whether a school employee harassed a student in the context of the adult’s responsibility for providing aid, benefits or services on a case-by-case basis. If it is quid pro quo sexual harassment, then OCR will automatically find that the harassment did occur as part of the adult’s responsibilities to provide aid, benefits and/or services to the student. If it is hostile environment sexual harassment, OCR will consider 5 factors in determining whether or not the sexual harassment occurred in the context of the employee’s responsibility to provide aid, benefits or services:
- The type and degree of both formal and/or informal responsibility assigned to the employee to provide aid, benefits or services to students, to control and/or to direct student conduct or to discipline students generally;
- The degree of influence the adult has over the alleged student victim (including the context in which the alleged sexual harassment happened);
- When and where the alleged harassment occurred’
- The age and educational level of the alleged student victim; and
- Whether, in the context of the alleged student victim’s age and educational level and the manner of how the school is run, it would be reasonable for the alleged student victim to believe that the employee was in a position of responsibility over the student (even if the employee was not).
OCR takes care to acknowledge that elementary and secondary school are generally operated in such a way that students believe that the adult employees do exercise control over students and have responsibility to provide and, benefits or services. Thus, responsibility does attach to the school at those levels of education for the actions of alleged sexually harassing employees.
In the case of higher education, OCR notes that while the harassment may not take place within the context of the alleged harasser’s aid, benefits or services to students, a hostile environment may occur if the sexual behavior/incident complained of is serious in nature. In that case, an alleged student victim must show that the conduct is sufficiently serious to deny or limit his/her ability to participate in or benefit from the school’s program. The school must act, upon notice of the harassment, in a prompt and effective manner to stop the harassment and to prevent its reoccurrence. If the school does act in such as manner, then it has complied with Title IX requirements. If it fails to act, then the school is found by OCR to have discriminated because it failed to meet its responsibilities to provide an environment free of sex discrimination for students.
Harassment by Students or Third Parties
Schools have the responsibility to take prompt and effective action if hostile environment sexual harassment occurs and to prevent its reoccurrence. If such action is taken, then the school has complied with Title IX. If a school fails to act promptly and effectively, then, the OCR guidance notes that a school must also remedy the effects that the harassment has had on the victim that could have reasonably been prevented had it responded promptly and effectively to notice of sexual harassment.
Third parties who are not actual employees of a school may be alleged sexual harassers. In this case, OCR states in its guidance, the school is responsible (upon notice) to take prompt and effective action to eliminate the hostile environment and to prevent its reoccurrence. Once again, OCR guides that a school that fails to take prompt and effective actions (upon notice) is responsible for the hostile environment and must take action to stop the harassment, prevent its reoccurrence and to remedy the effects on the victim that could have been prevented if the school had responded promptly and effectively to the notice that it received in the first place.
Notice and the Responsibility to Act
OCR stresses that schools need to ensure that employees are trained so that those in authority to address sexual harassment know how to respond when allegations are raised. Other responsible employees should be trained so that they know their responsibility to report sexual harassment to appropriate school officials. Training should include “practical information about how to identify harassment and, as applicable, the person to whom it should be reported.”
Notice, the guidance remarks, can be delivered to schools in a number of ways. Students may file grievances with the Title IX Coordinator, or complain to a teacher or other responsible school employee about other students’ harassment of her/him. Parents, students or others may contact school personnel including principals, campus security officers, bus drivers, affirmative action officers or staff in offices that deal with student affairs. In addition, a teacher or other responsible employee may witness sexual harassment. A school may receive notice in an indirect way (such as from a staff member, the press, or other informal sources of information). Schools may receive notice from fliers distributed about the school that include references to alleged sexually harassing incidents. In each of these cases, a school is considered by OCR to have received constructive notice of alleged sexual harassment. A student need not report formally or informally that alleged sexual harassment might have happened. Constructive notice requires the school to investigate whether or not a student makes a report.
In the case of a staff member who observes possible sexual harassment of a student by peers, the teacher should check with the possible student victim to assess whether the conduct was welcome. In addition, the staff member should carefully follow the requirements of the school policy and procedures regarding reporting such instances of possible sexual harassment.
It may be necessary for a school to take intermediate actions during the investigation of a complaint. For example, a school may need to separate students pending results of an investigation. In no case should the school act to cause further harm to the alleged victim.
Once the investigation is completed and a finding made, the school must act to eliminate any hostile environment that has been created. Training students may be necessary, harassers may be directed to apologize to their victims, services to student victims may be necessary, and class transfers may also be appropriate. The school should tailor the remedies to the unique context of the specific sexual harassment that has occurred.
OCR is also cognizant of the possibility of retaliation and notes in the new guidance that schools must prevent retaliation. Such measures may include making sure that victims and their parents know how to report subsequent problems and making follow-up inquiries to see if there are any further incidents or any retaliation of any kind. Counseling for the harasser may be appropriate to assure that the harassment is not repeated and to apprise the harasser of the harm that sexual harassment causes. In addition (depending on the complaint and how widespread the harassment effects were) the school community may need training to ensure that parents, students, and teachers can recognize harassment if it recurs and that they know how to respond to it if it happens.
OCR’s Handling of Complaints against Schools
As noted previously, OCR will take steps to determine three elements:
- The school’s dissemination of its policy prohibiting sex discrimination and of procedures aggrieved persons need to take to complain of violation of the school’s sex discrimination policy;
- The adequacy of a school’s investigation and/or handling of a sexual harassment complaint; and,
- The promptness and effectiveness of the school’s response to allegations of sexual harassment, including effective actions taken to end the harassment, prevent its reoccurrence and (as appropriate) to remedy the effects of the harassment.
If a school has met, or agrees to meet, the above-referenced three criteria in a manner deemed sufficient by OCR, then OCR considers the case closed and will take no further action against the school other than monitoring compliance with an agreement with the school (if there is such an agreement). OCR will seek voluntary compliance as required by Title IX in all cases, whether quid pro quo or peer hostile environment where the school acts to take effective and prompt action to handle the sexual harassment. The school risks loss of Federal funding only if it fails to take reasonable corrective action or to stop the sexual harassment. It does not risk Federal funding solely because discrimination has occurred.
Due Process Rights of the Accused
In this new section, the OCR Guidance outlines the rights that accused employees have through the U.S. Constitution. It also discusses the protections offered through the Family Educational Rights and Privacy Act (FERPA). FERPA does not override federally protected due process rights of persons accused of sexual harassment. OCR notes that schools must also weigh the requirements that Title IX imposes regarding promptness and effectiveness as they apply to allegations of sexual harassment, particularly because these standards are designed to protect complainants. OCR, in the new Guidance, remarks that further examinations of the dynamic interaction between FERPA, a complainant’s need to know and the accused right to privacy are continuing. In addition, schools must comply with local and state statutes and regulations that govern the rights of the accused. It is stressed in the Revised Guidance that if the complainant insists that his/her name not be revealed to the alleged harasser and the accused person cannot defend her/himself against the allegation because the alleged harasser does not know the identity of the accuser, then OCR would not expect disciplinary sanction against the alleged harasser.
Further, a school should be aware of the confidentiality concerns of an accused employee (or student, for that matter). Publicized accusations that are found to be false may, the Revised Guidance acknowledges, irreparably harm the reputation of the person against whom such accusations are made.
If a student requests that confidentiality be maintained, the OCR Revised Guidance notes that the school should discuss confidentiality standards with the student. The school should also make it clear that its ability to effectively respond to an allegation of sexual harassment may be seriously hampered if the complainant insists that her/his identity remaining confidential. The school should also take this opportunity to explain its policy prohibiting retaliation and assure the complainant that t will take all necessary steps to protect her/him from retaliation. If the student still asks that her/his name not be revealed, “the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.”
OCR notes that there are other steps that a school may take to respond to a situation where the accuser requires confidentiality. The school should proceed with an investigation because it may uncover other victims or situations that constitute a pattern of harassment. Further, an individual may be “put on notice” by the mere act of investigating that a school does. The message is strongly implied that a school does not tolerate sexual harassment whether it is determined to have happened in that case or not.
First Amendment Issues and Sexual Harassment
First Amendment rights to free speech may be an issue with some accusations involving verbal sexual harassment. The Revised Guidance addresses this thorny issue and also acknowledges that it may also apply to classroom lectures and discussions, and to other programs and activities of a school (including public meetings and campus speakers, campus debates, school plays and other cultural events, student journals and newspapers and other publications as well as to the speech rights of teachers and students).
Title IX, the Revised Guidance remarks, is intended to protect students from sex discrimination, not to regulate the content of speech. Some speech may indeed be offensive, but may not rise to the level of sexual harassment because it is not severe enough to constitute hostile environment sexual harassment. The speech must be sufficiently serious to deny or limit a student’s ability to participate in or benefit from a school’s education program.
The school must design its rules so that free speech is protected. This is where the issue becomes difficult. A school is not helpless to counter sexual comments by individuals that are offensive. The Revised Guidance offers suggestions as to how a school may respond to such speech. For example, a school may take steps to denounce derogatory remarks that are made about one sex or the other and ensure that competing views are heard. Further, the age of the students involved as well as the context in which the remarks are made (location or forum, for example) should be considered as they relate to the First Amendment.
Students are not permitted to threaten or intimidate others, even though the First Amendment generally protects student speech. Academic discourse, on the other hand, presents a different problem. Academic discourse is protected by the First Amendment even if it is offensive to individuals. Title IX would not require that academic discourse be censored because of possible sexually-explicit or sexually-offensive content; while it would require that threatening student speech of a sexual nature be grounds for discipline because of the school’s obligation to provide a safe environment where learning can occur.
(Editor’s Note: This article is general in nature and is not intended to replace professional legal advice by a specialist in education law.)
© Copyright February 2001, July 2001. By Mary Jo McGrath. All rights reserved.