"Sexual Harassment in a University Setting"
Definition of Sexual Harassment
The University of California defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:- Submission to such conduct is made either explicitly or implicitly a term or condition of instruction, employment, or participation in any University activity
- Submission to or rejection of such conduct by an individual is used as a basis for evaluation in making academic or personnel decisions affecting an individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile, or offensive university environment.
In determining whether conduct constitutes sexual harassment, consideration must be given to the totality of circumstances, including the nature and frequency of the conduct and the context in which the incidents occurred.
Issues Unique to Academia
Courts recognize the special nature of the relationship which exists between students and university teachers. One court put it this way:"[A professor's] conduct is not to be viewed in the same context as would conduct of an ordinary 'person on the street.' Rather, it must be judged in the context of the relationship existing between a professor and his students within an academic environment. University professors occupy an important place in our society and have concomitant ethical obligations." (Korf v. Ball State University)
The University of California Faculty Code of Conduct includes within the ethical principles to which faculty are to be held the principle that "As teachers, professors . . . demonstrate respect for the student as an individual, and adhere to their proper role as intellectual guides and counselors . . . They avoid any exploitation of students for their private advantage . . ." Among the types of unacceptable faculty behavior is the "Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons."
In November, 1983 the Academic Assembly of the University of California adopted a resolution concluding, in part, that "a single and even mutually welcomed' advance to a student by an instructor "must be regarded by the academic community as a serious breach of professional ethics and proper standards of professional behavior." Although the Resolution is limited to instructor relationships with current students, instructors should note that relationships initiated after the class or other academic role has ended may result in many of the same problems as would occur with current students. Instructors should be aware that relationships with students which appear to be consensual may, in fact, be unwelcome. In addition, even in cases of truly consensual relationships, other students may feel that they are disadvantaged or otherwise negatively affected by an instructor/student relationship. These "third party" sexual harassment complaints are recognized in the law.
Institutional Obligation
In addition to the above, Courts have determined that it is the University's obligation to maintain an academic environment free from unprofessional conduct. This responsibility exists regardless of the subjective response of the student or students toward whom such conduct is directed.
"If an overt sexual advance to a student while acting as a professor is unprofessional conduct that is so regardless of the subjective response of the student. Whether the student welcomes the advance, declines the offer, or is deeply affronted is extraneous. It is . . . the right and duty of [the institution] to deter misconduct . . . independent of the wishes of the victim of the offense." (Brown v. California State Personnel Board)
Liability
A sexual relationship between a faculty member and a student, even where it is believed that the relationship is consensual, may expose the faculty member and the university to significant liability. The potential liability for the faculty member may include monetary damages ordered by a court as a result of a lawsuit, monetary contribution as part of a settlement with a complainant, and disciplinary action in the form of censure, suspension without pay, demotion, or dismissal. To date, University of California Committees on Privilege and Tenure have recommended the dismissal of four faculty members (three tenured). There have also been recommendations of suspensions without pay and censure.
Prepared by Mel Beal and Janet Hoehn - Office of the General Counsel
March, 1995