SEXUAL HARASSMENT PREVENTION
AND
TITLE IX COMPLIANCE
OCR DCL ISSUED APRIL 4, 2011
What is Sexual Harassment?
• Broadest sense, it is a form of unlawful
sex discrimination
• Specifically, it is unwelcomed conduct
– Demands for sexual favors by supervisor or
other person with power over the victim in
return for a benefit
– Conduct of a sexual nature committed by coworkers or students that makes the work or
school environment hostile.
And, it is a violation of Laws and Policy
• Title IX of the Education Amendments of 1972
• Title VII of the Civil Rights Act of 1964
• Pennsylvania Human Relations Act
It is also prohibited under University policy Because the University is committed to
providing an environment where each person
can learn and work to his or her fullest
capacity, the university does not tolerate
sexual harassment
Mansfield University’s
Sexual Harassment Policy
Sexual harassment is unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a
sexual nature. Sexual harassment occurs when:
• submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s
employment, or a student’s academic status or
treatment.
• submission to or rejection of such conduct by an
individual is used as the basis for academic or
employment decisions affecting such individual; or
• such conduct has the purpose or effect of unreasonably
interfering with an individual’s work or academic
performance or creating an intimidating, hostile, or
offensive working or academic environment.
TYPES OF SEXUAL HARASSMENT
There are two types of sexual
harassment:
1) Quid Pro Quo
1) Hostile Environment
 Quid Quo Pro:
Sexual harassment where
employment and academic decisions
and conditions are based on whether
an employee or student is willing to
submit to unwelcomed sexual
conduct.
WHAT DOES THAT REALLY MEAN?
EMPLOYMENT DECISIONS AND
CONDITIONS
 Hiring
 Firing
 Promotion
 Raises
 Tenure
 Better Appointments
 Better office
 Better review
 Or any other benefit
ACADEMIC DECISIONS AND
CONDITIONS
 Better grade
 Better academic experiences (internships)
 Admission to a program
 Dismissal from a program
 Memberships to honor societies
 Not reporting a disciplinary or academic
matter
 Better recommendation
 Or any other benefit
WHAT IS UNWELCOMED SEXUAL
CONDUCT?
Unwelcomed conduct is:
1. not solicited or invited and
2. the accuser must regard the conduct
as undesirable or offensive
QUID PRO QUO
• Examples:



If you don’t, I will…
Put up with it or I will…
If you do, I will…
HOSTILE ENVIRONMENT
• Sexual harassment occurs when the
environment is objectively and subjectively
offensive by conduct of a sexual nature that
is severe or pervasive and the victim of the
harassment perceives the environment to
be offensive
WHAT DOES THAT REALLY MEAN?
WHAT IS CONDUCT OF
A “SEXUAL NATURE?”
Conduct can fall into these categories:
• Verbal comments
– Remarks, sounds, requests
• Non-Verbal
– Staring, gestures, facial expressions
• Written
– Email, notes, graffiti
• Visual items
– Pictures, sex toys, films
• Physical acts directed at another
WHAT IS CONDUCT OF
A “SEXUAL NATURE?”
 Propositions – Oral or Written
 Cartoons/Poster Art
 Patting, Hugging and Kissing
 Comments on Clothing or Body
 Lewd Remarks or Whistles
 Humor or Insults of a Sexual Nature
 Gestures
 Obscene Messages and Sexual
Discussions
WHAT IS CONDUCT OF
A “SEXUAL NATURE?”
• Being the butt of sexually charged jokes
•
•
•
•
•
or pranks
Having to listen to sexually charged jokes
Pinching, tickling or brushing up against
someone
Sexually suggested sounds
Leering or staring at a person’s anatomy
Romantic pursuit
CONDUCT CAN TAKE SEVERAL
MEDIUMS…
•
•
•
•
•
•
E-mail
Text messaging
Telephone messages
Gifts
Letters or notes
Non-verbal behavior
WHERE?
• Conduct can happen in the office or
on the campus.
• Conduct can happen out of the office
or off campus.
• Conduct can happen during office
hours or class hours, or after office
hours or class hours.
HOSTILE ENVIRONMENT
WHAT IS SEVERE OR PERVASIVE?
•
•
•
•
How offensive is the conduct
How often did the conduct occur
Is the conduct physically threatening
Is the alleged harasser in a position of
power over the student or employee
• Are there any other incidents of sexual
harassment involving the same person
WHAT IS SEVERE OR
PERVASIVE?
 Unless the conduct is egregious, a single
or isolated incident or offensive conduct
does not usually create a hostile
environment
 Generally requires a pattern of conduct
IN CONTRAST:
QUID PRO QUO MAY OCCUR BASED ON A
SINGLE INCIDENT
STANDARDS OF UNIVERSITY
LIABILITY FOR SEXUAL
HARASSMENT
• Liability for Harassment by
Supervisory Employees:
If a supervisor’s discriminatory activity
results in a tangible employment action,
the University is liable for sexual
harassment
STANDARDS OF UNIVERSITY
LIABILITY FOR SEXUAL
HARASSMENT
• Liability for harassment by coworkers:
The University knew or reasonably should
have known of the sexually harassing
behavior and failed to take immediate and
corrective action
STANDARDS OF UNIVERSITY
LIABILITY FOR SEXUAL
HARASSMENT
• Liability for harassment by a
professor on a student:
The University may be liable for the
harassment of a student by an employee
if a University official with authority to
take corrective action had actual
knowledge of the harassment and
responded in a deliberately indifferent
manner. More later, on sexual violence.
“DO’S”
 Follow policies and procedures
 Encourage the reporting of perceived
harassment
 Take all complaints seriously
 Make a careful and thorough record
 Communicate internally on a need-toknow basis
 Follow up to be sure that harassment has
stopped
“DON’TS”
 Don’t take a “don’t ask, don’t tell” approach
to the problem
 Don’t take a boys/girls will be boys/girls or
“it’s just harmless teasing” attitude
 Don’t suggest the target of the behavior to
“just ignore it”
 Don’t delay once you are aware of a problem
 Don’t make quick judgments or act on bias
 Don’t assume it couldn’t happen here
Special Considerations when the
Complaint of Sexual Harassment
Involves a Student
As the Victim. . .
Special Title IX Considerations
TITLE IX COMPLIANCE
OCR DCL ISSUED APRIL 4, 2011
Title IX
It is not just athletics . . . .
In General
Federal Law in place since 1972 as
part of the Education Amendments
amending Title IX of the Civil Rights
Act of 1964.
Title IX
What is Covered?
No person in the United States shall, on the basis
of sex, be excluded from participation in, be
denied benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance.
Housing
Counseling
Admissions
Health Services
Other
Title IX
• What is Prohibited?
No person in the United States shall, on the
basis of sex, be excluded from participation
in, be denied benefits of, or be subjected to
discrimination under any education
program or activity receiving Federal
financial assistance.
Sexual Discrimination
In General
• Harasser can be anyone:
Employee
Another Student
Third Party
Any Person
• Who can lodge a complaint?
Can be anyone: victim, roommate, parent,
teammate, employee, anonymous
• Form of complaint?
Oral
Written
In General
Who can receive a complaint?
• Can be anyone:
dean, campus police, resident
assistant, coach, faculty member, other
• Where does this apply?
Conduct On or Off Campus
•
What can happen?
OCR Enforcement Action
Private Lawsuits
Public Opinion
Why Do I Need to Know About This?
1. Universities are reviewing their sexual
discrimination policies and complaint
procedures and there may be changes.
2. Every University employee has an
obligation to report when they hear
about sexual discrimination - at least
when a student is involved.
3. Everyone should know about
confidentiality or lack thereof. . .
OCR DEAR COLLEAGUE LETTER
Dear Colleague Letter
(DCL) issued by the
United States
Department of
Education’s Office for Civil
Rights (OCR) on April 4,
2011.
What is the OCR?
 The Office for Civil Rights – OCR – is a subagency of the US Department of Education
and is focused on protecting civil rights in
federally-assisted education programs and
prohibiting discrimination on the basis of
race, color, national origin, sex, handicap, age,
or in membership in patriotic youth
organizations.
 About 650 staff members.
 Ensures compliance with several civil rights
laws, including Title IX.
WHAT IS A DCL?
Significant Guidance
Lets us know what the OCR will look at
for administrative enforcement.
We will use it as a guide, do what we can,
but we cannot institute procedures that
contradict Pennsylvania law.
Other Guidance from the OCR
• In 2001 – “Revised Sexual
Harassment Guidance: Harassment
of Students by School Employees,
Other Students, or Third Parties”

Made clear that Title IX applies to
Sexual Harassment

Incorporated into the 2011 DCL
2011 DCL
 2011 DCL Focusing on Sexual Violence
OCR is placing an emphasis on sexual violence by stating that
“[s]exual violence is a form of sexual harassment.”
 Specifically:
“[P]hysical 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.”
Includes:
Rape
Sexual Assault
Sexual Battery
Sexual Coercion
2011 DCL
Not New
See footnote 1 – “This letter does not add
requirements to applicable law, but
provides information and examples to
inform recipients about how OCR
evaluates whether covered entities are
complying with their legal obligations.”
WHAT CAN WE DO?
 Prepare. The preparation and the execution
of a plan will help protect us in the event of
an OCR audit or investigation, or a lawsuit.
 When assessing whether an institution has
fulfilled its obligations under Title IX, OCR will
look to whether the university recognized
that sexual harassment occurred and took
prompt and effective action to end the
harassment, prevent its recurrence, and
remedy its effects.
BASIC TITLE IX RESPONSIBILITIES
All institutions of higher education must
Appoint a Title IX compliance coordinator
 Maintain a policy against sex discrimination
Adopt and publish grievance procedures for
the prompt and equitable resolution of
complaints of sexual discrimination
(“grievance procedure” = how the University
addresses sexual discrimination)
Train
IDENTIFY THE TITLE IX COORDINATOR
Every University now has a
Title IX Coordinator
ADOPT AND PUBLISH A POLICY
AGAINST SEXUAL
DISCRIMINATION/HARASSMENT
Universities have been reviewing their
policies and there may be some
changes.
In the very least, you need to know what
the policies say.
ADOPT AND PUBLISH GRIEVANCE
PROCEDURES
The third recommendation of the 2011
DCL is to adopt and publish grievance
procedures for the prompt and
equitable resolution of complaints of
sexual discrimination.
(“Grievance procedure” = how the
University addresses sexual
discrimination)
ADOPT AND PUBLISH COMPLAINT
PROCEDURES
Universities have been reviewing their
policies and there may be some
changes.
In the very least, you need to know what
the policies say.
ADOPT AND PUBLISH COMPLAINT
PROCEDURES
In the past, the OCR has identified six elements
“critical to achieve compliance with Title IX”:
1. Notice
2. Application of the procedures to complaints
alleging harassment carried out by employees,
other students or third parties.
3. Adequate, reliable, impartial investigation
4. Designated and reasonably prompt time
frames
5. Notice to parties of outcome
6. Assurance University will take steps to prevent
recurrence
“PROMPT”?
 There should be virtually no delay
between the report of possible
sexual harassment and the
commencement of the school’s
investigative procedure.
 Here is where training comes in
to play. We need to make sure
that each and every person who
may receive information
regarding sexual harassment
complaints know how, when and
to whom to report complaints or
suspicions of sexual misconduct.
 According to OCR, the inaction of
a single school employee can
jeopardize the institution’s Title IX
compliance and continued receipt
of federal funding.
“Confidentiality”
 DCL States (DCL, Page 5, Emphasis Added):
Schools also should inform and obtain consent from the complainant . . . 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.
* * *
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. 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.
.
“Confidentiality”
 What?
In most cases, we will not be able to maintain
confidentiality.
Tell this to the complainant.
Why? May come a time when we need to take
action and we cannot honor a request for
confidentiality. We will try to respect the request
but may not be able to honor because we have an
obligation to the campus community.
Uncooperative Complainant
What if a complainant does not want
to be part of the process?
We still may have the obligation to go forth, but
our actions may be limited with a nonparticipating complainant.
TRAIN
 Train everyone who could potentially receive
a complaint.
Faculty
RA’s Coaches
Public Safety
Others
 Does not mean everyone needs to know how
to investigate.
They need to know the complaint and grievance
procedures
If they receive a complaint, they need to get it to
the right place
QUESTIONS?