SEXUAL HARASSMENT IN THE WORK PLACE
(Monday, June 8 -9:45 -10:30 a.m.)
One of the hot topics, as you pick up the newspaper, is the issue of sexual harassment. We think that's something we need to talk about among athletic administrators. Cheryl Levick, the primary women's administrator at Stanford University, has a terrific program which she presented at the PAC-I0. Let me introduce Cheryl today on the issues of sexual harassment
Thanks Bill. In the decade of the 908, every manager in the country must be aware of and sensitive to the
issue of sexual harassment in the work place. I feel that the area of athletics is no exception and we certainly are not immune.
Let me give you an example and you tell me if this is sexual harassment or not. The male coach hits the female on the gluteus maximus and said, "Get your butt moving and run down the track." Is that sexual harassment? The female administrator puts her arms around a subordinate and asked him to do her a favor and go get her coffee. Is that sexual harassment? If an assistant coach asks an athlete to rub his back, is that sexual harassment? If you have an issue of straight and gay athletes and the rooming situation on the road, is that sexual harassment? In looking at those four issues, you can see that indeed, we have some issues that need to be looked at and need to be prevented.
As athletic directors, women administrators, assistant directors of athletics in this room, we must be knowledgeable of the law and be able to assess an incident as those described, uphold the rights of all parties involved and resolve complaints and fmd a solution.
To help infonn us of the law and how it works, it is my pleasure to introduce to you Whayne Herriford. Whayne is the manager of human resources development at Stanford University. He has an MBA from Stanford and specializes in management development. He has designed teaching modules for managers of all sorts, time management, AIDS in the work place, conflict resolutions and his other area, dealing with sexual harassment.
I became acquainted with Whayne when I participated in a nine month Management Development Program at Stanford University that met once a week for four hours. He's an incredible presenter and he will give you systematic review of these issues, the law and how we can work it into our work place. I introduce Whayne Herriford.
Thank you. Because I'm a trainer, I'm going to work near my overhead because it makes me more comfortable and secure. I passed out a handout which basically, we'll follow today.
There is a lot of publicity over the topic of sexual harassment in the media over the past year. This is a law that's been on the books for over 25 years and it has only been some incidents of late that has brought it to the surface. I'm going to be talking in terms of federal law and, depending upon what state you're in, you may find more stringent laws.
I want to set the tone for some of these cases. In this case, Andy is the coach of the women's swim team. He's a proficient performer. He frequently challenges the performance of team members with comments like, "Move your fat butt." He's told flat-<:hested women that they make better swimmers than women with big chests. You've never actually observed this behavior directly, but you've heard from other female coaches and staff.
One day a team member comes into your office and admits that she's bothered by this. She's afraid of being cut from the team. She wants to be a national or perhaps an international performer. She's upset and doesn't know what to do about it. She asks you not to say anything but to help her figure out what to do. No one else has complained about this behavior. Is this sexual harassment?
Another example is a female staff person in your department when stress levels in the department get high, and language of male staff members deteriorates. Maria fmds this offensive and says so. The response she receives, vary. Is this sexual harassment?
This last case is from a situation that actually OCCUlTed. You're arranging accommodations for a men's team to b'avel to another city and you commonly pair people together. After you post the rooming list, Randy comes to see you and says he refuses to room with Mario because Mario is a homosexual. Randy asks for another room. Is this sexual harassment?
The answer to any or all of those is that it could be. Any of the situations that I've eluded to could be sexual harassment. One of the bottom line denominators to this whole situation is that it depends a lot on intention and perception. I'm sure you're aware that those are two of the most difficult concepts to deal with when we're talking about other people's behavior. I'd like to review some of the court interpretations of the law and look a little into th interpersonal and psychological dynamics.
Sexual harassment itself initially came from Title VII of the Civil Rights Act of 1964. As I heard this morning when you were discussing Title IX, there are some implications about this in Title IX. There is an anecdote that I would like to share with you, so that you're aware. When the Civil Rights Act of 64 was in the Congress, many of you probably remember some of the dynamics in the United States at the time, sex was not originally included. Title VII was initially race, national origin and religion. In an effort to block passage of Title VII, sex was added because it was inferred that while people might be willing to provide civil rights for the basis of race, national origin and religion, nobody would ever do it on the basis of sex. Fortunately, or unfortunately, depending on what side you're on, that was not the case. So, sex was added as an afterthought, more or less, to the title.
Initially, it was suggested that what we're talking about here was discrimination on the basis of sex in employment It was not until the 70s that sexual harassment, meaning the request for sexual favors, etc., was added as an interpretation of Title VII. The point I want to make is that this law has been on the books since 1964 and that's over 25 years. It's part of the pervasive Civil Right Act that was passed in the early 6Os.
Sexual harassment is legally defmed as unwelcomed sexual advances, requests for sexual favors or verbal or physical contact of a sexual nature. That is from both the EEOC interpretation as well as several court determinations. What's important, again, to understand is that when those behaviors are present and they explicitly and implicitly affect a person' s employment, they interfere with their work performance or they create a hostile, intimidating or offensive environment, it is legally defined that sexual harassment exists.
It might be fairly clear to most of you concerning the fIrst two cases, but the third one can be the most
difficult Intimidating, hostile and offensive environment is clearly something that is in the eyes of the person who alleges the behavior. There was a very successful case two years ago where a person who was not directly subject to the sexual harassment but who had to work in the environment sued under this third condition and won the lawsuit The principle being, the individual being harassed is not the only one who can be offended and is not the only one who has rights.
What that means perhaps, is that in the fIrst case where the swimmer who comes to complain about comments being made, other people on the team including men, I might add, could allege sexual harassment if they found that that behavior created a hostile and offensive environment for them. The environmental issues are the most difficult ones to deal with. If someone makes a direct request for sexual favors and it can be proven, that typically, is fairly easy to address. The ones that get more difficult are the ones where someone is alleging that environment is hostile or offensive or intimidating.
The courts, as you might imagine, have a lot of case law around it The courts have said there are two kinds of law, two kinds of situations where sexual harassment will be reviewed or identified. The fIrst are quid pro quo,
which basically means, you do this for me, I do this for you and again, it involves sexual behavior of some sort.
The second is the hostile work environment where comments or the use of certain words could, and probably would, be claims. Because of peoples ' conduct, it creates an environment where someone is uncomfortable or someone is unsafe.
Even the last case where I eluded that a person is gay and someone doesn't want to room with him. That might be a hostile work environment case. The point that needs to be understood, and is a very tricky point, is that while in most of the United States there is no protection afforded to people on the basis of sexual orientation. If a person's sexual orientation is the basis upon which you're making decisions about them, it might constitute sexual harassment
When I train managers around our university, I emphasize many times laws are contradictory to one another. It really is important to understand that hostile work environment is one of the more current and constant place where lawsuits are fIled today.
Two years ago, the federal courts determined that reasonable standards will be based on the standards of the individuals who were involved. In other words, historically what we've said is, is this reasonable or unreasonable and in many cases, the courts made that determination and, in most cases, courts are male. The courts have determined that what a reasonable woman would find offensive is what would therefore be offensive in many cases.
That, again, is a very important thing to understand. If a rationale for this is that behavior has always been like this or if the guys don't mind it, that is not necessarily a behavior that will have credence, at least in a legal situation. What has to be looked at is what would any woman faced with this particular situation feel.
Gender is irrelevant and it doesn't matter whether it's a man harassing a woman or a woman harassing a man, which does occur, a man harassing another man, or a woman harassing another woman. The issue is whether or not the conditions that I alluded to are present. Are there requests for favors? Is there inappropriate touching, inappropriate language and are those activities the basis around which decisions are being made about that person's career.
The second, which I've already alluded to, is the harassed person can be anyone affected by the behavior. It does not have to be the person who was directly harassed, but someone who is also in the environment It can be anyone in the work place.
Economic injury or discharge of the individual does not have to be involved in order for harassment to have occurred. Again, that gets to the hostile work environment situation. Many times we think in terms of sexual harassment being, if you don't do this for me, I'll terminate you or you won't get this promotion. Someone does not have to be actually affected. They can have a situation occur where they're uncomfortable in the work environment
If you want a role of thumb, what the courts tend to look for is whether the behavior was unwelcomed, unwanted and repeated. It does not have to meet all three of those conditions in every case. Sexual assault does not have to be repeated to constitute harassment. But, many other behaviors have to follow that. For example, if someone uses the word "honey" to a woman and she doesn't like that word, it is conceivably arguable that until she says to that person I don't like it when you call me honey, it may not be harassment if he can demonstrate that he was unaware of that. In that case, you'd want to say, was it unwelcome. Was it repeated and was it unwanted?
The guidelines I recommend if you're called upon to investigate or to mediate a particular issue is to check out these standards.
One of the things I discover when I do workshops and classes on sexual harassment is that if I were to ask everyone in the room to write one example of obvious harassment and one example of subtle harassment and then write them all on the board where everyone can see them, we'd have an incredible range of response. What some people view to be obvious, some people view to be subtle. What some people think is subtle. some people think as obvious. That's why these particular standards become important. The person who alleges to being harassed needs to make sure that the person who is doing it understands that the behavior is unwelcomed and unwanted in many cases. I want to stress that's obviously not universally true because there are some things that, at least socially, we view to be unacceptable no matter how they occur. The harassed has the responsibility to establish that.
Employers can be held liable if it can be demonsb"ated they should have known the behavior was occurring. This is another one of those legal nuances that creates difficulty .Every employer should have a policy that states
their position on this behavior. An employer can't say I didn't realize that I should have told them this shouldn't be done. That is not an acceptable defense. So, an employer is required to demonsb"ate pro-actively that they understand this and they are taking steps. This comes out of federal case law.
Individual supervisor or individual agents of the university, which many of you would be classified as, can be personally charged and liable if it can be determined that you were aware of sexual harassment occurring and you took no steps to combat it What that means is that if someone comes to you and complains and wants it kept confidential, it is my strong recommendation to you that you not maintain confidentiality and you intervene. That person would later have the opportunity to say that I came and talked to Carl and asked him not to say anything and he didn't and it continued, so now I'm not only going to sue Stanford, but I'm going to sue Carl as well. Confidentiality should not be maintained around allegations of sexual harassment. Supervisors, agents and managers of the university can be legally liable for not participating in the resolution of those claims.
It's important to remember that simply because someone alleged that sexual harassment occurred, it doesn't mean it actually did. In investigating, you may determine that it's a situation of unwelcomed, unwanted or it wasn't understood. Some people may make those claims for defensive reasons of other sOrts, but it's always necessary to investigate and fmd out if it actually occurred.
There are a lot of misconceptions about sexual harassment and none of these are true. Some of the misconceptions are --that nice women don't get harassed, somehow it's only women who deserve it or who ask for it, people imagine sexual harassment, they do it to get attention, men don't get harassed, only trouble makers speak up, only uptight, maladjusted people with social or sexual hang-ups complain, it's just a blue collar problem.
Obviously, if you've had to deal with any of these situations, you're probably aware that sexual harassment claims crosses all sorts of barriers and boundaries. One of the things that makes this fairly difficult for many people is that our culture does not tend to openly discuss issues related to sex. So immediately, a red flag goes up and it gets difficult to discuss it, but it's a very important issue.
Here are some examples of things that could be sexual harassment --verbal is teasing people, jokes, questions or the use of certain words like honey or babe. Any kind of story , a pressure for dates, letters, telephone calls, materials of a sexual nature or nicknames of a sexual nature.
One of the possible responses you might have is does this mean that a staff person can't fall in love with an athlete? I don't know. I don't think that's what it means. I know that it does suggest that when that occurs and that person has a dual role as both an administrator at the university and as an individual, it can certainly create a complex relationship. In the event that the relationship doesn't work, one needs to insure that any kind of action that is taken subsequent to that between those two individuals is fair and appropriate and above board. You want to make sure that that relationship doesn't adversely affect or positively affect that individual over other people who don't share the same relationship.
Some non-verbal things can also be difficult --visually explicit materials, looks, gestures, pro-longed staring, whistles, cat calls and winks. We had a female vice president and she took a tour through the locker rooms where she found a calendar which had been on the wall for some 15 years. She had a lot of difficulty with that Their response was it's always been that way. It's all men. You'll never be in here again. Why should we have to take it down. Unfortunately for them, the bottom line was that if one person fmds something that's sexually offensive and has nothing to do with the ongoing work in that department, there's a very strong argument in favor of removing it, independent of the fact that she was the vice president
If there's tradition of certain kinds of things being posted or shown that might be offensive to other people, there's an argument that they might be removed. If it has nothing to do with the mission of the group, I'd take it down rather than risk some other conflict later on.
Physical actions are typically straightforward but there are examples of things that a physical behavior might be taken to constitute sexual harassment. Again, we're talking about something that a person might feel is just
threatening or intimidating, but is there some reason why. Some people tend to hug a lot, touch a lot or pat people
on their arm, shoulder or back. Sometimes just touching someone for encouragement is standard behavior. It gets to be a real complex issue because we're not necessarily saying that you should not do things that are natural, but on the other hand, we're saying make sure it does not offend the other person.
When someone is harassed, they go through a variety of feelings. Some of the responses people have is very often they get angry , feel hurt. You might notice decreased concentration on their part or they begin to blame themselves. That is one of the things you'll notice very often when they are being harassed or who has been assaulted. They feel they should have done something different or I should have been able to prevent this. People very often worry that if they raise this issue, they will get reprisals, particularly in an academic atmosphere. Remember, undergraduate athletes are anywhere from 18 to 22 years old. They are not as developed socially as we are, hopefully.
What that suggests is that the power relationship is very much present. For an 18-year-old female to confront a coach and say that what you're doing makes me uncomfortable or is difficult for me is a very tough thing to do.
I've had students tell me that they just put up with it because they want this or they want that and feel they can put up with it That is something we need to think about. How do we create mechanisms where people are comfortable raising those tough issues when it's not something they've behaviorly mastered yet
Sometimes people drop out or cease to compete because it is too traumatic for them to handle. There are physical symptoms that occur as well --insomnia, headaches, indigestion, etc. The point of that is not to take that as a checklist but be aware there are responses people go through when they are feeling that way. It may be for other reasons. But if you observe it, you may find something present contributing to that.
Coping strategies that people will often do as opposed to the physical are sometimes people dress down because maybe if don't look as well, this wouldn't happen. They just deny it. it just didn't happen or it's not important. Some people will put a lot of energy talking about their boyfriend or their fIance holJing that the alleged harasser will back off.
I notice a lot of students will make sure they are never alone with that particular person. They always make sure someone goes with them either as a witness or the belief that if there are two of us there, I won't experience that particular behavior.
Again, it's important to recognize that people cope based on all sorts of experiences they've had, but these are some of the common mechanisms we've observed.
If you're required to intervene in an incident you may want to think about some of the following suggestions. First of all, each situation is unique. I don't know how many of you have to deal with employer relations or labor relations people, but one of the worst things they say is that every situation is unique and each one has to be dealt with on its own merits. With these cases, that's particularly true.
What has to be looked at is the history, the alleged harasser, was he or she told about the behavior, how often was it repeated. Every investigation is discreet. There are no cookbook solutions. There's also not a standard way to respond. If you tend to be a fairly aggressive person, you're going to do things one way. If you tend to be someone a little more collegial, you'll approach it differently. The point is that it is important to address it.
I had about eight or nine years in the private sector before Stanford and it's real clear to me that the way things happen in a university is very different from the way things happen in the private sector. That would suggest to me the ways I would address a problem, perhaps not as direct, sometimes not as blunt and sometimes through the back door. If you have a faculty member involved, you'll certainly handle things differently. Be conscious of what the environment is.
As a trainer, all I really care about is that your behavior changes. It's not really up to me to try to change your attitude. If a person is sexually harassing another person, the best minimal that we ought to aim for is to get them to stop. If we have the time or the inclination to work on the emotional self, I suggest that you do that
If someone is doing something dIat is inappropriate, we need to change dIe behavior. We do that eidIer through positive or negative reward. I don't spend a lot of energy trying to get at dIose odIer levels because dIat's somedIing in many cases dIat's far beyond my scope and my abilities.
When you want to assess an incident you'll want to think about your relationships with the person. Do I really know this person? Did I actually observe it? Is this something that you believe? There's a difference between someone who sort of has a reputation and someone you don't really know. Your relationships are really important. What are the norms in the group? If the norms in the group support the particular behavior, then there's sort of two issues that need to be addressed. That person's specific behavior as well as what are the norms that facilitate that going on.
The timing of dIe conversation relevant to dIe incident has to do widI giving people feedback closely connected widI dIe behavior is obviously very important in an incident, particularly if it's likely to be a surprise.
People say that 80 percent of employee-relations problems are resolved if they're dealt with right away. The theory being if you observe something, go right away to this person and say you've heard, you've noticed, this particular behavior, most of the time, you'll get them to change. The conversation should be held in privacy and guarantees that both persons can focus in. Think about the potential emotional climate. How is this person likely to react? How will you likely react? What are your issues and needs around this particular problem?
Both people have rights. It's important, should you have to intervene, that both parties have been heard and we can't jump to any conclusions or assumptions. I also recommend that you get a mutual third party. It will also guarantee that if there are any allegations that you are bias will get mitigated. This is an important fact. Many of
the cases that don't get dealt with appropriately are because the rights of the alleged harasser are violated and the case will be dismissed. Make sure both parties have their day.
It's important to be prepared. It will make it a lot easier to confront it. Make eye contact, speak up, make your point, be specific. All of these things are talked about in the training. It's basically, sit down, focus in on the behavior, be direct with the person, describe it to them in terms of its impact. Ask them what they think could happen and describe what your expectations are.
Most of you have policy and procedures in your organization dIat define what dIe expectations are widIin your organization. In our organization, we issued dIose once a year to every staff member to assure that dIey are aware of dIem. Routine reminders to people as to what dIe expectations are, are very useful to help dIem understand what expected behavior is.
If you have any questions, I'd be happy to address them.
FROM THE FLOOR:
Is there any way to address weight?
The American Disabilities Act includes obesity as a disability .There are no specific guidelines dIat I've seen.
However, if it's done in a way to suggest any type of sexuality somehow, it might fall under Title VII. ADA says dIat we cannot discriminate against people on dIe basis of physical appearance which includes weight.
If you're consistent with your expectations of all athletes and you make evaluations based on actual performance, I think you'd be safer. If someone is severely obese and can't make certain performances, I wouldn't focus on the weight issue but on the ability to perform.
Thank you very much.
Whayne will be around for awhile if you have any other questions. Thank you for being here today.