Newsgroups: misc.legal,alt.censorship,alt.comp.acad-freedom.talk From: greeny@top.cis.syr.edu (J. S. Greenfield) Subject: Re: Supreme Court speaks on sexual harassment and hostile environment Message-ID: <1993Nov12.094634.15831@newstand.syr.edu> Organization: Syracuse University, CIS Dept. References: <1993Nov10.181547.3435@lmpsbbs.comm.mot.com> <2bs39d$p6a@eff.org> <2bv1uh$ef4@eff.org> Date: Fri, 12 Nov 93 09:46:34 EST Lines: 225 Note changes to newgroup line... In article <2bv1uh$ef4@eff.org> kadie@eff.org (Carl M. Kadie) writes: > >>Summary: In light of _Harris v. Forklift Systems_, the U. of Illinois >>sexual harassment is clearly unconsititutional. It should be revised. > >As several people have pointed out, _Harris_ does not clearly show the >U. of Illinois SH policy is unconsititutional. It doesn't show that >the Illinois policy is constitutional either. Rather _Harris_ avoids >all constitutional issues, confining itself to interrupting the law >and the EEOC regulations. > >At most _Harris_ says that universities cannot justify banning >offensive speech by claiming a parallel to Title VII (employment law), >since, according to _Harris_, Title VI doesn't ban merely offensive >expresion. Yesterday, I made public some of my criticisms of a recently adopted sexual harassment policy at Syracuse University. I'm reprinting it here for commentary and criticism, and also to provide others with some basic information and arguments that can be used to oppose discriminatory harassment policies that overstep the bounds of harassment to regulate "protected" speech. Disclaimers: I am neither a lawyer nor a law student. The critique is short, in the hopes that semi-interested people will not lose interest before reaching the end. Naturally then, it does not go into much detail. It's just a basic outline for the arguments. The critique may also strike some people as a bit inflammatory in places. This was intentional, as an important goal of the critique is to spark some debate on campus. (The SU policy was poorly publicized on campus, and consequently, there has been very little public debate and critical evaluation of the policy.) Finally, since Syracuse University is a private institution, the critique is written for that context. --------------------- A Critique of the Syracuse University Sexual Harassment Policy* Jonathan Greenfield Department of Computer and Information Science Syracuse University November 11, 1993 On October 20, 1993, the University Senate at Syracuse University adopted a policy prohibiting sexual harassment and establishing procedures for responding to complaints of sexual harassment [1]. While the policy addresses several aspects of sexual harassment, this critique examines only the policy's definition of the so- called "hostile environment" form of harassment. This critique specifically does not address the policy's definition of the so-called "quid pro quo" form of sexual harassment or the enforcement procedures established by the policy. For the remainder of this critique, we shall use the phrase "sexual harassment" to refer to the "hostile environment" form of such harassment. The sexual harassment policy suffers from two basic flaws. First, the policy's definition of sexual harassment is so vague that individuals "of common intelligence must necessarily guess at its meaning." By law, this means the policy is unconstitutionally vague [2]. Consequently, the contractual obligations that the policy intends to create are almost certainly not legally enforceable. Secondly, the sexual harassment policy is "susceptible of regular application to protected expression" and is, therefore, overbroad on its face [3]. If this policy were adopted by a public institution, it would eventually be struck down because of its overbreadth (and vagueness). This is precisely what occurred after similar policies on discriminatory harassment were adopted by the University of Michigan [4] and the University of Wisconsin System [5]. As a private educational institution, Syracuse University is not legally prohibited from adopting a constitutionally overbroad regulation, such as the current policy on sexual harassment. However, such a policy violates fundamental principles of academic freedom, as well as many specific policies previously adopted by the university, including the Statement of Student Rights and Responsibilities [6], the Code of Student Conduct [7], University Policies [8] and Academic Rules and Regulations [9]. The policy also violates professionally-accepted standards of academic freedom, such as those embodied in the American Association of University Professors (AAUP) policy on speech codes [10]. Unfortunately, the Syracuse policy goes well beyond a simple speech code. The policy's mention of "leering" and "ogling" as definitive examples of potentially harassing behavior is plainly shocking. The idea that looking at someone in the wrong way could constitute actionable "harassment" violates all principles of bodily integrity. The idea is reminiscent of the old South, where a Negro who failed to avert his eyes from a white (and, particularly, from a white woman) could suffer most severe consequences as a result. Furthermore, the policy's inclusion of such outrageous provisions is likely to undermine the university's efforts to combat bonafide harassment. All of these problems stem primarily from the policy's failure to draw any distinction between expression which is merely "offensive" and that which constitutes actionable harassment. This distinction is, of course, essential to protecting freedom of expression, and is well-recognized by judicial precedent on sexual harassment. As the Supreme Court held in Meritor v. Vinson [11], ...not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII.... For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Just this week, the Supreme Court reaffirmed this distinction in Harris v. Forklift Systems [12], ..."mere utterance of an...epithet which engenders offensive feelings in an employee," ...does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. This distinction is also recognized by the AAUP model policy on sexual harassment [13], with which the Syracuse policy purports to be consistent. The necessity that grievous behavior be "severe or pervasive" to be actionable is wholly ignored by the Syracuse policy. At a minimum, the absence of this distinction will leave many individuals wondering whether any such distinction exists. An inevitable consequence of this confusion will be a serious chilling effect on expression at this university. Though the policy suggests that such troublesome provisions are required by federal and state law, this is simply not the case. The Syracuse policy goes far beyond the requirements of the law with respect to sexual harassment, to the point of violating basic First Amendment principles. At the same time, the policy fails to address harassment predicated on bases other than sex. Since Title VI and Title VII of the Civil Rights Act of 1964 prohibit discrimination on other bases, including race, color, national origin and religion, Syracuse University is equally responsible for discriminatory harassment predicated upon those bases as for sexual harassment. The policy's failure to address other forms of discriminatory harassment leaves the university in a tenuous position. If an agent of the university were to perpetrate some other form of prohibited discriminatory harassment, the absence of a policy addressing such harassment would expose the university to substantial civil liability [11]. For these reasons, one can only conclude that Syracuse University's newly-adopted policy on sexual harassment is fundamentally flawed. The policy fails to provide any protection for freedom of expression. The policy is so vague as to be unenforceable if challenged. Finally, the policy completely fails to address several important classes of discriminatory harassment prohibited by federal law, leaving the university with considerable liability exposure. References 1. "Responding to sexual harassment at Syracuse University," The Syracuse Record, 9/18/93, pps. 6-7. 2. Broadrick v. Oklahoma, 413 U.S. 603 (1973). 3. Houston v. Hill, 107 S.Ct. 2502 (1987). 4. Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989). 5. UWM Post v. University of Wisconsin, 1991 WL 206819 (E.D. Wis. 1991). 6. "Speech/Expression/Press," Statement of Student Rights and Responsibilities, in S.U. Student Handbook 1993-94, pp. 172. 7. Harassment clause, Code of Student Conduct, in S.U. Student Handbook 1993-94, pp. 174. 8. "Protests and Demonstrations," University Policies, in S.U. Student Handbook 1993-94, pp. 186. 9. "Academic Freedom," Academic Rules and Regulations 1993-94, pp. 27. 10. "On Freedom of Expression and Campus Speech Codes," Academe, July-August 1992, pps. 30-31. 11. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). 12. Harris v. Forklift Systems, No. 92-1168 [citation not available] (1993). 13. "Sexual Harassment: Suggested Policy and Procedures for Handling Complaints," Academe, September-October 1990, pps. 42-43. * Copyright 1993, Jonathan Greenfield. This essay may be reprinted in whole for non-commercial use, provided that this copyright notice is included in any reprint. All other rights reserved. -- J. S. Greenfield greeny@top.cis.syr.edu (I like to put 'greeny' here, but my d*mn system wants a *real* name!) "What's the difference between an orange?"