Journal of Nursing Education

Sexual Harassment in Academia: Legal and Administrative Challenges

Marsha Dowell, MSN, BSN, RN

Abstract

ABSTRACT

Guidelines and institutional policies regarding sexual harassment in academia have a relatively short and controversial background. Deference to Equal Employment Opportunity Commission (EEOC) guidelines in employment sexual harassment incidents guides much of the thinking in contemporary courts. Title DC of the Educational Amendments and the Civil Rights Restoration Act of 1987 are but two of the legal redresses available to students with harassment grievance complaints. Lack of definition of the term as well as research studies in nursing complicate the issue of sexual harassment. The potential impact of harassment on nursing students both in the classroom and in the practice area is significant. Nursing administrators and educators must be proactive in writing and implementing policies regarding sexual harassment.

Abstract

ABSTRACT

Guidelines and institutional policies regarding sexual harassment in academia have a relatively short and controversial background. Deference to Equal Employment Opportunity Commission (EEOC) guidelines in employment sexual harassment incidents guides much of the thinking in contemporary courts. Title DC of the Educational Amendments and the Civil Rights Restoration Act of 1987 are but two of the legal redresses available to students with harassment grievance complaints. Lack of definition of the term as well as research studies in nursing complicate the issue of sexual harassment. The potential impact of harassment on nursing students both in the classroom and in the practice area is significant. Nursing administrators and educators must be proactive in writing and implementing policies regarding sexual harassment.

Introduction

Sexual harassment in academia has become a volatile issue. Increases in sexual harassment allegations in management decisions and in legal actions have galvanized numerous academic administrators into action (Gibbs & Balthorpe, 1982). Awareness of the magnitude, dimensions, and multiple effects of sexual harassment has prompted educational administrators to adopt policies to deter or deal with such behaviors (Keller, 1988). Although there have been few reported cases of sexual harassment in educational institutions, harassment claims can result in six- and seven-figure verdicts against the harasser, in addition to loss of employment even for tenured professors (Langevin & Kayser, 1988). The impact of harassment on its victims is pervasive. To many, sexual harassment is analogous to rape (Farley, 1978); to others, it is psychologically debilitating (Pollack, 1990); to still others, it produces physical symptoms of stress (Crull, 1982), but to all, it remains demeaning. This article deals with the issue of sexual harassment. A general background of the issue is presented and continues with a focus on female nursing students both in the classroom and in the clinical area. The role of administrators in dealing with these issues also is discussed.

Definition

Sexual harassment is a profoundly important, complex social and legal problem. Bratton (1987) describes it as the first legal wrong to be defined by women's experiences. The definition of sexual harassment is equally complex because it is inextricably tied to the issue of perception. Much of the behavior that women at times find offensive is behavior that is frequently accepted by males as normal heterosexual behavior (Pollack, 1990). Sexual harassment most broadly defined refers to the unwanted imposition of sexual requirements in the context of a relationship of unequal power (Creighton, 1987; Pollack, 1990). Despite the rhetoric, a firm definition of sexual harassment behavior remains elusive.

Background of the Issue

Historians record the existence of sexual harassment in the United States from anecdotal writings and written interviews with females dating from colonial times. The earliest popular account of what is now termed sexual harassment appeared in an issue of a women's magazine, Harpers Bazaar, in 1908 (Bratton, 1987). Little literature appeared in either popular or professional form until approximately 60 years later. Prior to the 1970s, sexual harassment had neither name nor form, but was viewed as common gender-to-gender behavior. The advent of the women's movement in the 1960s and 1970s gave rise to growing acknowledgement of a problem, particularly in employment (Bratton, 1987; Faley, 1982; Pollack, 1990).

Concurrent with the women's movement was the civil rights movement with the emphasis on racial equality. Intending to protect blacks and other minorities in the workplace, Congress enacted Title VII as part of the Civil Rights Act of 1964. Title VII prohibited employment discrimination against any individual with respect to race or sex. Interestingly, the prohibition against discrimination on sexual grounds was introduced to amend the Act one day prior to the vote in the House of Representatives. The amendment, introduced by Representative Howard Smith, was allegedly an attempt to defeat the proposed legislation (Peirce, 1989). However, little congressional debate occurred and the bill passed. The arguments presented in favor of the proposed amendment were not based on legal issues but rather on social history and thus did not provide any constructive guidance as to any legislative intent (Kaufman, 1978). This fact profoundly complicated the issue for contemporary courts.

Not until 10 years after the enactment of the Civil Rights Act of 1964 did the federal courts have the first case in which sexual harassment was the primary complaint. Early complaints met with little success in attempts to establish sexual harassment as sex discrimination under Title VII Barnes v. Trane, 1974; Corne ?. Bausch & Lomb, 1975; Miller v. Bank of America, 1979). The court took a rather narrow view in all the cited cases and held that the alleged acts by the offenders were nothing more than personal proclivity and the satisfaction of personal urges rather than gender discrimination. Additionally, the court found that it was ludicrous to find applicability of sexual harassment in Title VII. The court also noted that to find Title VII applicable would lead to a deluge of litigation every time an employer made amorous or sexually oriented advances toward another (Miller v. Bank of America, 1979). The decisions of these three courts were depressingly similar: sexual harassment was a trivial matter.

Confusion continued to reign in the court system, not only as to the importance and definition of sexual harassment, but as to the intent of the law. The lack of legislative history of the sexual discrimination amendment to Title VII made decisions problematic and was the basis of much controversy.

As the issue of sexual harassment in employment grew and gained notoriety, Congress realized that sexual harassment was not just confined to the workplace, but permeated other facets of society, most notably academia. In 1972, Congress enacted Title DC of the Education Amendments. Title LX extended the prohibition regarding sexual discrimination to educational institutions receiving federal funding. The language of Title K remained open to interpretation. As with the language under Title VII, sexual harassment was subsumed, but not explicitly covered under Title DC (Hendrickson, Lee, Loomis, & Olsway, 1990).

A continuing lack of consensus of court decisions as to the nature and basis of sexual harassment as sex discrimination frustrated attorneys and plaintiffs alike. In November 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines regarding sexual harassment in the workplace. These guidelines cover supervisors, coworkers, and nonemployees. Although the guidelines do not have the force of law, most federal courts have since relied quite heavily on them (Pollack, 1990). A landmark Supreme Court decision in 1986, Meritor Savings Bank v. Vinson, approved the EEOCs guidelines and set the precedent for deference to them in cases of sexual harassment (Barnett, 1989).

The guidelines confirmed two forms of sexual harassment previously noted in court findings; quid pro quo and hostile environment (Henken, 1989). Quid pro quo is defined as the more or less explicit exchange, that is, the harassed individual must comply sexually or forfeit any employment benefit (Pollack, 1990). The second form of sexual harassment is much more difficult to prove. Hostile environment is an intangible, amorphous concept where there is non-discrete harm occurring over a period of time (Cole, 1986).

The EEOC promulgated guidelines for Title VII but no such guidelines exist for Title DC. The issue of the scope of coverage of Title DC was disputed for many years. The issue of whether one department may lose federal funds on the basis of discrimination or harassment, or the entire university losing funding due to discrimination or harassment in one department, was not explicitly clear in the language of Title DC. In 1987, Congress passed the Civil Rights Restoration Act. The result of the act made the entire institution subject to the requirements of nondiscrimination law (Hendrickson et al., 1990). Again, the issue of sexual harassment is subsumed but not explicit in the language of the Act (Blum, 1988).

Education Litigation

The Civil Rights Restoration Act of 1987, Title DC of the Educational Amendments of 1972, various state statutes, common law tort, and institutional policies comprise the legal basis for student redress of sexual harassment in educational institutions. However, due to the numerous similarities of Title DC and Title VII, courts have analyzed and will probably continue to analyze sexual harassment issues in education based on theories and prior findings of Title VII cases.

The definition of sexual harassment in academia has been defined in several ways, but the intent of the definitions is similar. Tuana (1985) defines it as the use of authority to emphasize the sexuality or sexual identity of a student in a manner that prevents or impairs the student's full participation in educational benefits, the educational climate, or educational opportunities. Lindgreen, Ota, Zirke, and Van Gieson (1984) define it as the overt or covert behavior of a faculty member using the power inherent in the role to threaten, coerce, or intimidate a student to accept sexual advances or to risk academic reprisals (p. 48). This definition closely mirrors the quid pro quo theory of sexual harassment utilized in Title VII cases. Hostile environment is more controversial. Overt or covert behavior of faculty that has the purpose of unreasonable interference with a student's educational experience may create a hostile or offensive environment.

The courts already have applied the two major theories of sexual harassment - quid pro quo and hostile environment - to the academic settings (Langevin & Kayser, 1988). In the first such case from the academic setting to be adjudicated, the U.S. District Court, in Alexander v. Yale University (1977), reasoned that academic advancement (a grade of A) conditioned upon submission to sexual demands constituted a violation similar to the quid pro quo theory in Title VII. The court further ruled that a claim based solely on a hostile environment was not viable under Title DC. However, it was the first court to recognize that sexual harassment violates Title DC and that students have a right to sue directly in federal court (Keller, 1988).

Since the publicity of the Alexander case (1977), numerous complaints of sexual harassment have surfaced in universities across the nation; few, however, have gone to court (Connolly & Marshall, 1989). Two cases are of note: Moire v. Temple University School of Medicine and Lipsett v. University of Puerto Rico. In both cases, the plaintiffs were female surgical residents who claimed that university and hospital personnel subjected them to sexual harassment. The results of both cases were likewise similar. The plaintiffs' charges were dismissed due to the lack of supportive and conclusive evidence of sexual harassment (Connolly & Marshall, 1989).

Despite the fact that no federal court has yet found hostile-environment sexual harassment in any case involving educational organizations, that the EEOC guidelines have been alluded to supports the use of this theory in academic issues (Langevin & Kayser, 1988). Future litigation may be based on these claims.

The lack of court cases does not imply the lack of sexual harassment incidents. Winks (1982) describes a 1977 survey conducted at the University of California. The findings indicated that one in five women had been subjected to unwanted sexual attention from male professors. Winks also reports a study from the American Psychological Association indicating that one fourth of all female students had sexual contact with psychology professors. Another survey conducted by Fitzgerald, Weitzman, Gold, and Omerod (1988) uncovered that one fourth of all male university professors have engaged in sexual relations with students. These and other studies provide confirming evidence that harassment is not an occasional occurrence in academia, but is much more pervasive than heretofore believed (Bogart & Stein, 1989).

Interestingly, in nursing, a profession dominated by females practicing in a traditionally male-dominated environment, scant literature is available regarding sexual harassment. Little research has been conducted regarding the problem of sexual harassment among nurses and nursing students.

In a survey conducted by DuIt (1982) of registered nurses attending a southern university, over 60% of the 89 respondents indicated that they had experienced sexual harassment during a preceding year. A more recent study conducted by Cholewinski and Bürge (1990) found similar results. They sampled 277 male and female nursing students from four institutions of higher education in the southeastern region of the United States. Their findings indicated that 48% of the subjects experienced sexual harassment in the form of verbal abuse; 42% experienced sexist remarks about clothing, their body, or sexual activities; and 10% experienced sexual touching or leering. Of the 277 responding students, 71% reported being involved with a male faculty member, while 19% reported being involved with a female faculty member. Most of the respondents (90%) denied reporting any incident of sexual harassment.

Few other articles regarding sexual harassment are available in the nursing literature. In a series of articles, Creighton (1987) objectively discusses the issue, the impact on nursing, and the procedural steps to deal effectively with sexual harassment in the workplace. Two other authors, Carlson (1988) and Heinrich (1987), discuss the issue, but each indicates that the practicing nurse needs to examine her behavior to assess whether her dress or her actions provoked sexual harassment behaviors. The mixed messages in these recent articles continue to mirror the legal issues and challenges encountered with sexual harassment litigation both in academia and in the workplace.

Administrative Policy Guidelines

To comply with requirements to receive federal funding, academic institutions establish a variety of policies, including a policy against sexual harassment. These policies most often adopt: (1) the language of the EEOC guidelines that sexual harassment is not condoned; (2) the procedural steps for a grievance complaint; and (3) the procedural steps to resolve the complaint issue. The policies often apply both on campus and in off-campus placements (such as hospitals, clinics, and schools). Sanctions available to enforce the policies range from reprimands to removal for cause (Langevin & Kayser, 1988). Any sanction imposed on the offender must follow administrative due process (Administrative and Civil Law Handbook, 1985). Much of the educational litigation that results from sexual harassment is not the issue of sexual harassment per se, but the charge or challenge of procedural due process denied to a faculty member resulting from procedural sanctions imposed for sexual harassment (Cockburn v. Santa Monica Community College, 1984; Korf v. Ball State University, 1984; Levitt v University of Texas at El Paso, 1985).

Disputes regarding due process are not the only challenges of administrative policies. Concern for the protection of students, faculty, and the educational institution in avoiding potential liability has led some administrators to establish policies that raise legal issues aside from harassment. Harassment policies may be viewed as antithetical to values inherent in the academic setting; values such as academic freedom, freedom of speech, freedom of association, the equal protection clause of the 14th Amendment, and privacy (Adams, Kottke, & Padgitt, 1983; Keller, 1988). Furthermore, the issue of confidentiality of both accuser and accused is problematic (Padgitt & Padgitt, 1986).

Administrative policies, admittedly the first line of student redress, must be carefully written and reviewed to ensure the legal rights of all involved. Policy guidelines for sexual harassment on college campuses continue to remain problematic.

Impacts on Nursing Education

A critical function of a school of nursing is to provide an environment that promotes a free spirit of inquiry. A multitude of learning experiences and academic opportunities are presented to all students in all settings, classroom as well as health care. Any behavior of a sexual nature by faculty at the school of nursing toward physicians and technicians in the health care setting, which impairs the environment or the learning of any student, must not be tolerated. Ethical standards of conduct for both faculty and physicians, as well as policy guidelines, should prevent much of the harassment behavior. A major issue in nursing education is whether, in fact, harassment behavior exists, and, if so, its pervasiveness.

The lack of research regarding sexual harassment in nursing education coupled with the reported reticence of students to report such incidents in no fashion denies the existence of harassment. It does little, however, to confirm its existence. The predominance of males in the practice settings and the increase in the number of males in the educational setting might suggest that research in this area needs to be addressed.

Harassment incidents have negative effects on students and student learning. Responses such as embarrassment, loss of self-esteem, uneasiness, fear, inability to concentrate on studies or work assignments, loss of academic opportunities, poor grades, and academic failure have been reported (Adams et al., 1983; Bogart & Stein, 1989; Dzeich & Weiner, 1984; Hoffman, 1986). Additionally, the effects of harassment extend beyond the limits of the victim. Witnesses and friends reportedly express cynicism regarding the educational process and a loss of confidence in educators, administrators, and educational policy implementation (Bogart & Stein, 1989).

Research becomes a critical issue with sexual harassment and nursing students. Before responding to the emotional frenzy of sexual harassment behaviors, educators need to become aware of the extent of the problem and its pervasiveness in both the classroom and the health care settings.

Educational Administrators

The necessity of knowledge and understanding of the law takes on new meaning for writers of sexual harassment policies in academia. Nursing educational administrators need to be knowledgeable not only about university umbrella policies and their ramifications, but also about a variety of state and federal laws and guidelines.

Nursing educational administrators need to be proactive and to examine current policies in their institutions and in the health care institutions with which the students affiliate. Clarity of policy statements regarding sexual harassment is essential. Knowledge of the definition of sexual harassment and harassing behaviors is likewise essential. Procedural guidelines for redress of grievances must be clearly outlined. In addition, nursing administrators need to read the current policies in light of their own knowledge of due process, free speech, free association, confidentiality, and privacy law.

The educational administrator needs to be assured that all faculty and students are aware of the policies regarding sexual harassment. The administrator must also make public the appropriate procedures for both student and faculty in the event that such behavior occurs.

Harassing behaviors from faculty at a school of nursing may be more easily dealt with (by complying with published school policies) than harassing behaviors from others, notably physicians, at health care settings where students have clinical placements. In such an event, the school administrator must advise the student of harassment policies of both the school and the health care setting. Involvement of administrators of health care agencies assures continuity of communication as the grievance procedure is filed through the university.

Federal law, and state law in those states that have enacted civil rights legislation, require the university to respond to allegations of sexual harassment through the procedural steps in the published university policies. Failure to respond to complaints of harassment may make the university hable for monetary damage to the student and possible loss of federal funding.

The issue of a nursing student who lodges a harassment complaint against a physician is complex. The major issues involved in such an allegation are: (1) the physician is not usually employed by the health care organization, however, the physician is bound by the health care organization's policies regarding sexual harassment; (2) the health care organization may also be liable for the actions of the physician if the organization's grievance procedures are not followed; (3) schools of nursing have contracts with clinical agencies or health care institutions for the provisions of clinical learning sites; (4) the university is bound to provide a learning atmosphere that is free from harassment; (5) university administrators must notify the hospital or health care agency administrators of the nature of the complaint; (6) the administrators of the health care organization must follow their procedural guidelines regarding harassment complaints in their institutions; (7) university administrators must monitor the organizational sites where the alleged complaints occurred, being especially cognizant of the behavior of the alleged violator of the policy; and (8) if further complaints are lodged, university administrators must take action to remove students from environments where the alleged incidents have occurred.

Suits involving the university arise under Title DC of the Educational Amendments primarily due to lack of response to harassment policy guidelines. It is likely that, under the Civil Right Restoration Act of 1987, federal funding to the entire university will be terminated as a result of school of nursing administrators not implementing their own written policies.

Guidance and support coupled with well-written sexual harassment policies can do nothing but enhance the implementation of these policies at schools of nursing. Nursing administrators are tasked with the responsibility of maximizing student learning. The requirement for an environment free from sexual harassment is critical in promoting high academic achievement of student nurses.

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