Sexual Discrimination, Harassment, and Retaliation: We Still Need Better and Safer Remedies

Gender Shrapnel in the Academic Workplace treats in part the daily functions and dysfunctions of sexual discrimination, harassment, and retaliation and places these events on a continuum with sexual assault and sexual violence.  Next week’s post will go to the more acute end of this spectrum—sexual assault and violence–, while this week’s post sets up the pitfalls and dangers of mishandling cases of sexual discrimination, harassment, and retaliation.  (*See my Sept. 19 (2016) Gender Shrapnel blog post on the Fox News sexual harassment situation.)

The 2014 RAND Military Workplace Study (Sexual Assault and Sexual Harassment in the U.S. Military, Vol. 2. Eds. Andrew R. Morral, Kristie L. Gore, Terry L. Schell) states this: “Sexual harassment is also closely associated with sexual assault in the military.  Indeed, women who have been sexually harassed in the past year are 14 times more likely to also have been sexually assaulted in the past year than are women who were not sexually harassed.  Men who were sexually harassed were 49 times more likely to also have been sexually assaulted in the past year than men who were not sexually harassed” (xxii).  These data parallel the assertions I make in Gender Shrapnel about the sexual harassment—sexual assault continuum, not only in the military workplace, but in all workplaces.  If we do not clean up our act on the “lighter” end of the spectrum, we will never get at the root problems on the weightier end, and we know we need to get there.  (*Next week I’ll address this horrifying information from the University of Wisconsin and why reporting is such a gigantic piece of the harassment-assault puzzle.)

Back in 2011, the United States Equal Employment Opportunity Commission (EEOC) and the Department of Education’s Office for Civil Rights (OCR) assumed greater responsibility for the effective implementation of Title IX (Department of Justice Title IX site; Know Your IX; AAUW) through expanded education, more detailed guidelines for colleges and universities, and more significant presence of OCR officials on college and university campuses.  The OCR Dear Colleague letter of 2011 showed that Title IX could be more elastic, that it could reach further into enforcement goals, thereby attempting to reduce incidents of sexual harassment, discrimination, retaliation, and assault.  The greater visibility of Title IX-based cases in our traditional and social media can be attributed in large part to this increased vigilance.  While it might seem like these profound problems have gotten worse, we should consider that their greater coverage in news media indicates at the very least that more people care about and are addressing these issues.

If you have been, to use the now oft-used term, groped at work, you have been a victim of harassment.  But the “grope” is an easy diagnosis for women.  We all know what it is and what effects it causes.  Most people in the workplace know that the “grope” is inappropriate and illegal.  Fewer people realize, though, that many small comments and actions (the shrapnel) that undercut the ability to work of people in the so-called protected categories (race, religion, sexuality, national origin, gender, ability, parental status) add up to discrimination and harassment.  Think of the comments you’ve heard in the workplace that served to belittle or dehumanize a person and had the effect of limiting that person’s ability to navigate space and get the work done.  The physical “grope” (from the quid pro quo type of harassment) has its non-physical analogs on the hostile work environment (HWE) side.  These include fraternity banners targeted at first-year women, confederate flags (with, as I have seen on more than one occasion, nooses hung on either side), and public interrogation about salary and performance.  Oftentimes, physical intimidation—blocking entrances, looming over seated individuals (think Trump, Debate #2), patting body parts—is part and parcel of HWE harassment.  The confluence of these actions limits the victim’s horizontal movement (in and through the physical spaces of the workplace) and vertical movement (ability to take on increased responsibility in the workplace).

Most policies penned by the General Counsel office of colleges and universities attempt, in a cookie-cutter way, to address the EEOC and OCR recommendations for policy content and procedures.  Nevertheless, the policies often fall far short of clarifying protocols, encouraging reporting, and being fair to those who register reports of violations.

I know people trained in literary criticism (in other words, trained as careful readers of text) who have experienced serious difficulties in understanding their colleges’ convoluted Title IX guidelines.  Sometimes the college or university provides four or five different links and creates systems with ten or more confusing acronyms.  The outline of the procedures offers few protections to the person who is considering coming forward to make a complaint, thus sowing seeds of doubt before the person has even entered any official reporting process.  The already difficult decision to report a Title VII and/or Title IX violation is complicated further by the precarious positions of many people in the workplace.  People need to hold onto their jobs, and a less-than-perfect reporting system and investigative process actively discourage would-be reporters and witnesses from getting harassers out of the system.

Although I’m not sure how to get around it, the notion that the alleged violator of policy is presumed innocent until proven guilty sends the implicit message that the person reporting is lying, confused, or vindictive (instead of brave, forthright, and trying to help solve institutional problems).  We have to figure out a way to send the message that the investigators and adjudicators can also believe the person reporting until proven otherwise.  If we don’t accomplish this, from sexual harassment and discrimination to rape and assault, then we will always be placing blame on the victim for being a liar.  In addition, given that sexual harassment and discrimination are rooted in a power differential, oftentimes the person reporting the violation is low in the hierarchy and must report to someone very closely linked to the alleged violator.

Investigative committees are usually appointed from a handpicked group designated by General Counsel’s office.  This ensures that the process is controlled in puppet-like fashion from the perspective of protecting the institution against legal risk.  None of this bodes well for the person who has already suffered harassment and now has to choose whether to trust in a reporting and investigative system that is clearly stacked against her or him.  General Counsel’s role should simply be to implement the decisions that emerge from the systems put in place.  If an organization can keep General Counsel out of investigations and adjudications, it accomplishes two feats: (1) a cleaner internal process from the get-go; and (2) a demonstrated trust in the established systems and protocols.

These elements—lack of clarity of policies and procedures, lack of fairness to (and/or real retaliation against) the individual filing the report of violation, and conflict of interest in reporting up the chain—contribute to more, not less, sexual discrimination and harassment.  They are part and parcel of the cycle of sexual discrimination, harassment, and retaliation.  We need to fix these problems in order to decrease the incidence of this “lighter” end of the spectrum, and thereby decrease the incidence on the sexual assault side.  Until Title IX officers and policy investigators are freed from General Counsel and interpretations of institutional risk that make the reporting party the enemy, there will be no justice for those reporting violations.  This is not to say that there aren’t very well-meaning people in these roles and involved in these processes.  There are!  It just means that they are put in impossible positions, caught in the middle.

Our current reporting systems, despite real overhaul over the past few years, are still falling short.  Administrative hierarchies still circle the wagons, thus alienating those who report and placing them in further danger.  If we don’t get at the problems of discrimination, harassment, and retaliation, we will never lessen the incidence of sexual assault and violence.