General Counsel
Sexual Harassment
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Sexual harassment is a form of sex discrimination. State and federal law prohibit sexual harassment both in the workplace and in the classroom. Board of Regents Policy 81-2 requires each campus in the System to implement a process to address allegations of sexual harassment, as well as offer educational programs informing employees and students about sexual harassment, and the applicable procedures, sanctions and remedies against it.
Theories of Sexual Harassment
There are two basic theories of sexual harassment - quid pro quo (i.e., employment benefits conditioned upon sexual conduct) and hostile work environment. Under both theories, the touchstone is whether an unwanted condition has been imposed on a person's employment or learning environment because of his or her gender. For any type of sexual harassment, a victim's toleration of or submission to the harassment does not bar his or her claim. If the conduct is unwelcome and has a demonstrated effect on the employee's conditions of employment, it may constitute unlawful sexual harassment.
Sexual harassment law has developed primarily in the employment context. The principles regarding what constitutes sexual harassment, however, are also generally applicable to faculty/student and student/student situations. The standards for institutional liability for such harassment differ somewhat and are discussed in a separate section at the end of this chapter.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment typically involves situations in which a supervisor exploits his or her authority to exact sexual favors from a subordinate. The employee is forced to choose between suffering an employment detriment and submitting to sexual demands. Quid pro quo sexual harassment occurs when submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual.
Hostile Work Environment
A "hostile work environment" refers to situations in which an employee is required to work in an environment that unreasonably interferes with his or her work performance. The conduct must be sufficiently severe and pervasive to create an intimidating, hostile, or offensive work environment. Harassment is severe and pervasive when it occurs frequently, entails humiliation or physical threats, or unreasonably interferes with the victim's work performance. For example, unwelcome physical conduct of a hostile or suggestive nature, uninvited sexual solicitations, intimidating words or acts, and display of pornographic pictures may have the effect of creating a hostile work environment. Occasional vulgar banter among co-workers, on the other hand, ordinarily does not rise to the level of a hostile work environment.
Conduct need not necessarily be sexual in nature to constitute harassment. Any unwelcome conduct directed at a person because of his or her gender can constitute actionable harassment. The law also recognizes a cause of action for same-sex harassment.
Employer Liability for Sexual Harassment
The institution may be legally accountable for sexual harassment carried out by supervisory personnel or by an employee's co-workers. In both situations, the employer must respond in a timely fashion to all reported instances of sexual harassment. An employer is presumed liable for the harassment if it fails to do so.
Harassment by Supervisory Personnel
In general, an employer is strictly liable for quid pro quo harassment carried out by its supervisory personnel. Where a supervisor creates a sexually hostile work environment, the employer is liable unless (1) it exercised reasonable care to prevent and correct sexual harassment; and (2) the victim of the harassment failed to take advantage of available preventive or corrective measures.
Harassment by Co-Workers
If an employee claims he or she was harassed by one or more co-workers, an employer may be liable if management knew or should have known of the alleged sexual harassment, and failed to take prompt remedial action.
An employer may receive actual notice from an employee that he or she is being harassed by a co-worker. This includes situations in which the employee files a complaint with a supervisor or the appropriate campus office that handles sexual harassment complaints. Even if an employer does not receive actual notice of harassment, it still may be charged with knowledge in certain circumstances. For example, if the employer is aware that the employee accused of harassment has harassed others in the past, the employer may be considered to have constructive notice of the harassment sufficient for holding it legally responsible.
Once an employer has notice that harassment is occurring, it has a legal responsibility to take corrective measures reasonably calculated to end the harassment. It may be most appropriate to discipline the alleged harasser, especially in cases of severe or frequent harassment. Or, the employer may take other measures such as changing the victim's or the alleged harasser's work schedule to avoid placing them in a position where harassment could recur. As long as the chosen response is effective in ending the harassment, however, the employer is not required to take the response preferred by the victim.
Retaliation
As with other forms of discrimination, it is also unlawful to retaliate against an employee for reporting sexual harassment, filing a complaint or participating in an investigation of sexual harassment. This protection applies even if the allegation of sexual harassment ultimately turns out to be unsupported.
Institutional Liability for Harassment of Students
It is unlawful for a university employee or a fellow student to harass a student on account of his or her sex, and the institution may be liable if an appropriate official had actual notice of the harassment and, with deliberate indifference, failed to respond adequately. That is not to say, however, that student harassment complaints should be treated any less seriously by the institution. Board policy requires that institutions promptly investigate and address all reported instances of student harassment.