Sexual Harassment in United States

Plain-English Law

Sexual Harassment as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455): Unwelcome sexual advances or conduct on the job that creates an intimidating, hostile, or offensive working environment.

Introduction to Sexual Harassment

Sexual Harassment, a form of unlawful sex discrimination. Under federal law in the United States, sexual harassment is unwanted verbal or physical behavior of a sexual nature that occurs in the workplace or in an educational setting under certain conditions. Such behavior is illegal if it creates an environment that is hostile or intimidating, if it interferes with a person’s work or school performance, or if acceptance of the harasser’s behavior is made a condition of employment or academic achievement. A number of other countries-including Japan, Canada, Australia, and several European nations-also have laws that prohibit sexual harassment.

Perceptions differ about what behaviors constitute sexual harassment. However, typical examples of sexual harassment include sexually oriented gestures, jokes, or remarks that are unwelcome; repeated and unwanted sexual advances; touching or other unwelcome bodily contact; and physical intimidation. Sexual harassment can occur when one person has power over another and uses it to coerce the person to accept unwanted sexual attention. If a supervisor forces an employee to have sex by threatening to fire the employee, that is sexual harassment. It can also occur among peers-for example, if coworkers repeatedly tell sexual jokes, post pornographic photos, or make unwelcome sexual innuendos to another coworker. Both men and women can be harassers or victims of sexual harassment. However, research indicates that women are more likely to be victims.

The Congress of the United States first prohibited discrimination based on an individual’s sex when it passed the Civil Rights Act of 1964. However, it was not until the mid-1970s that U.S. courts began to interpret sexual harassment as a form of illegal sex discrimination. Since that time complaints of sexual harassment have become much more common. In several high-profile cases, prominent public officials have been accused of sexual harassment. These cases have increased public awareness of the issue and sparked debate concerning what types of behavior should be considered inappropriate or unlawful.” (1)

Sexual Harassment in Labor Law

According to unr.edu, Sexual Harassment is defined as: Unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature constitute sexual harassment when:

Submission to the conduct is either an explicit or implicit term or condition of employment•Submission to or rejection of the conduct is used as a basis for an employment affecting the person rejecting or submitting to the conduct•The conduct has the purpose or effect of unreasonably interfering with an affected person’s work performance, or creating an intimidating, hostile, or offensive work environment.

Sexual Harassment in the International Business Landscape

Definition of Sexual Harassment in the context of U.S. international business and public trade policy: Unwanted offers of or requests for sex at the workplace, prohibited under U.S. federal law.

Sexual Harassment in Labor Law

According to unr.edu, Sexual Harassment is defined as: Unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature constitute sexual harassment when:

Submission to the conduct is either an explicit or implicit term or condition of employment
br>Submission to or rejection of the conduct is used as a basis for an employment affecting the person rejecting or submitting to the conduct. The conduct has the purpose or effect of unreasonably interfering with an affected person’s work performance, or creating an intimidating, hostile, or offensive work environment.

Title IX and Sexual Harassment

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter1 explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence. Note that the use of the term “sexual harassment” throughout this section includes sexual violence unless otherwise noted. Sexual harassment also may violate Title IV of the Civil Rights Act of 1964 (42 U.S.C. § 2000c), which prohibits public school districts and colleges from discriminating against students on the basis of sex, among other bases. The U.S. Department of Justice enforces Title IV.

Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.

The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college.3 The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college.4 According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act (Under the Clery Act, forcible sex offenses are defined as any sexual act directed against another person, forcibly and/or against that person’s will, or not forcibly or against the person’s will where the victim is incapable of giving consent. Forcible sex offenses include forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling. 34 C.F.R. Part 668, Subpt. D, App. A). This problem is not limited to college. During the 2007-2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools.6 Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population. The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.

This section begins with a discussion of Title IX’s requirements related to student-on-student sexual harassment, including sexual violence, and explains schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence. These requirements are discussed in detail in the U.S. Department of Education and its Office for Civil Rights’s Revised Sexual Harassment Guidance issued in 2001 (2001 Guidance). (This section focuses on peer sexual harassment and violence. Schools’ obligations and the appropriate response to sexual harassment and violence committed by employees may be different from those described in this letter. Recipients should refer to the 2001 Guidance for further information about employee harassment of students). The Title IX obligations discussed in this section apply equally to school districts unless otherwise noted.

Title IX Requirements Related to Sexual Harassment and Sexual Violence

Schools’ Obligations to Respond to Sexual Harassment and Sexual Violence

Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX. Title IX also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature. The Title IX obligations discussed in this letter also apply to gender-based harassment.

As explained in the U.S. Department of Education and its Office for Civil Rights’s 2001 Guidance, when a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment. See, e.g., Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that while not an issue in this case, a single incident of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists, and noting that courts look to Title VII cases for guidance in analyzing Title IX sexual harassment claims); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259 n.4 (6th Cir. 2000) (“‘[w]ithin the context of Title IX, a student’s claim of hostile environment can arise from a single incident’” (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999))); Soper v. Hoben,195 F.3d 845, 855 (6th Cir. 1999) (explaining that rape and sexual abuse “obviously qualif[y] as…severe, pervasive, and objectively offensive sexual harassment”); see also Berry v. Chi. Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (in the Title VII context, “a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment”); Turner v. Saloon, Ltd.,595 F.3d 679, 686 (7th Cir. 2010) (noting that “‘[o]ne instance of conduct that is sufficiently severe may be enough,’” which is “especially true when the touching is of an intimate body part” (quoting Jackson v. Cnty. of Racine,474 F.3d 493, 499 (7th Cir. 2007))); McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307, 310 (5th Cir. 2006) (holding that “‘the deliberate and unwanted touching of [a plaintiff’s] intimate body parts can constitute severe sexual harassment’” in Title VII cases (quoting Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005))).

Title IX protects students from sexual harassment in a school’s education programs and activities. This means that Title IX protects students in connection with all the academic, educational, extracurricular, athletic, and other programs of the school, whether those programs take place in a school’s facilities, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere. For example, Title IX protects a student who is sexually assaulted by a fellow student during a school-sponsored field trip. Title IX also protects third parties from sexual harassment or violence in a school’s education programs and activities. For example, Title IX protects a high school student participating in a college’s recruitment program, a visiting student athlete, and a visitor in a school’s on-campus residence hall. Title IX also protects employees of a recipient from sexual harassment.

If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief. The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 643, 648 (1999).

Schools also are required to publish a notice of nondiscrimination and to adopt and publish grievance procedures. Because of these requirements, which are discussed in greater detail in the following section, schools need to ensure that their employees are trained so that they know to report harassment to appropriate school officials, and so that employees with the authority to address harassment know how to respond properly. Training for employees should include practical information about how to identify and report sexual harassment and violence. OCR recommends that this training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.

Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school’s education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator’s friends, the school should take the earlier sexual assault into account in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates.

Regardless of whether a harassed student, his or her parent, or a third party files a complaint under the school’s grievance procedures or otherwise requests action on the student’s behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. As discussed later in this letter, the school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct. The specific steps in a school’s
investigation will vary depending upon the nature of the allegations, the age of the student or students involved (particularly in elementary and secondary schools), the size and administrative structure of the school, and other factors. Yet as discussed in more detail below, the school’s inquiry must in all cases be prompt, thorough, and impartial. In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified. In states with mandatory reporting laws, schools may be required to report certain incidents to local law enforcement or child protection agencies.

Schools also should inform and obtain consent from the complainant (or the complainant’s parents if the complainant is under 18 and does not attend a postsecondary institution) before beginning an investigation. If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited.14 The school also should tell the complainant that Title IX prohibits retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs.

As discussed in the 2001 Guidance, if the complainant continues to ask that his or her name or other identifiable information not be revealed, the school should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. Thus, the school may weigh the request for confidentiality against the following factors: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99. For example, the alleged harasser may have a right under the Family Educational Rights and Privacy Act to inspect and review portions of the complaint that directly relate to him or her. In that case, the school must redact the complainant’s name and other identifying information before allowing the alleged harasser to inspect and review the sections of the complaint that relate to him or her. In some cases, such as those where the school is required to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant’s confidentiality.

The school should inform the complainant if it cannot ensure confidentiality. Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence. Examples of such steps are discussed later in this letter.

Compliance with Title IX, such as publishing a notice of nondiscrimination, designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures, can serve as preventive measures against harassment. Combined with education and training programs, these measures can help ensure that all students and employees recognize the nature of sexual harassment and violence, and understand that the school will not tolerate such conduct. Indeed, these measures may bring potentially problematic conduct to the school’s attention before it becomes serious enough to create a hostile environment. Training for administrators, teachers, staff, and students also can help ensure that they understand what types of conduct constitute sexual harassment or violence, can identify warning signals that may need attention, and know how to respond. More detailed information and examples of education and other preventive measures are provided later in this letter.

Procedural Requirements Pertaining to Sexual Harassment and Sexual Violence

Recipients of Federal financial assistance must comply with the procedural requirements outlined in the Title IX implementing regulations. Specifically, a recipient must:

(A) Disseminate a notice of nondiscrimination (34 C.F.R. § 106.9);

(B) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX (34 C.F.R. § 106.8(a)); and

(C) Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints (34 C.F.R. § 106.8 (b)).

These requirements apply to all forms of sexual harassment, including sexual violence, and are important for preventing and effectively responding to sex discrimination. The U.S. Department of Education and its Office for Civil Rights advises recipients to examine their current policies and procedures on sexual harassment and sexual violence to determine whether those policies comply with the requirements.

Sexual Harassment

Sexual Harassment of Students by Faculty Members

There is a school’s responsibility for harassment of students by teachers and other school employees. The Title IX’s prohibitions against discrimination are not limited to official policies and practices governing school programs and activities.

A school also engages in sex-based discrimination if its employees, in the context of carrying out their day-to-day job responsibilities for providing aid, benefits, or services to students (such as teaching, counseling, supervising, and advising students) deny or limit a student’s ability to participate in or benefit from the schools program on the basis of sex.

Under the Title IX regulations, the school is responsible for discrimination in these cases, whether or not it knew or should have known about it, because the discrimination occurred as part of the school’s undertaking to provide nondiscriminatory aid, benefits, and services to students.

Peer-to-Peer Sexual Harassment

Quid Pro Quo Sexual Harassment

Same-Sex Sexual Harassment

Sexual Harassment, Sexual Behaviour and the Law

Concept of Sexual Harassment in relation to Safe Place

Definition of Sexual Harassment in this context: Unwelcome conduct of a sexual nature, including sexual violence; unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature.

Individual Liability for Sexual Harassment

This section examines the Individual Liability for Sexual Harassment subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

Sexual Harassment Damages and Remedies

This section examines the Sexual Harassment Damages and Remedies subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

Sexual Harassment On The Job

This section examines the Sexual Harassment On The Job subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

Sexual Harassment

Sexual Harassment in United States

Plain-English Law

Introduction to Sexual Harassment

Sexual Harassment in Labor Law

Sexual Harassment in the International Business Landscape

Sexual Harassment in Labor Law

Title IX and Sexual Harassment

Title IX Requirements Related to Sexual Harassment and Sexual Violence

Schools’ Obligations to Respond to Sexual Harassment and Sexual Violence

Procedural Requirements Pertaining to Sexual Harassment and Sexual Violence

Sexual Harassment

Sexual Harassment of Students by Faculty Members

Peer-to-Peer Sexual Harassment

Quid Pro Quo Sexual Harassment

Same-Sex Sexual Harassment

Sexual Harassment, Sexual Behaviour and the Law

Concept of Sexual Harassment in relation to Safe Place

Individual Liability for Sexual Harassment

Sexual Harassment Damages and Remedies

Sexual Harassment On The Job

Resources

Notes and References

Concept of Sexual Harassment in relation to Safe Place

Individual Liability for Sexual Harassment

Sexual Harassment Damages and Remedies

Sexual Harassment On The Job

Resources

See Also

Further Reading

Further Reading (Books)

Further Reading (Books 2)

Further Reading (Articles)

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