Sexual Harassment: A Refresher Course (Late Fall 2004)
Despite the headline to this column, this is not a refresher course on how to undertake sexual harassment. Sorry to get your hopes up. As we once pointed out, several years ago in a column on the matter of sexual harassment, we are against it. Still.

In discussing this topic with Mary Margaret the Wonder Pooch, she opined that sexual harassment was one reason God gave us fangs. (An additional reason she suggested, quickly, was to assist her in enjoying lots of pooch treats. Lots of them). Actually, I’m pretty sure I don’t have fangs. Regardless, as usual, I’m not sure I can go along with her solution to the problem, effective as it might be in practice, teeth, fangs, or whatever. I’ll get back to you on her other suggestion for stopping sexual harassment, involving being chained in the back yard for a few days.

As for an explanation of what constitutes the different types of sexual harassment, I recommend that you go to the website, www.arsba.org, click on “Legal,” click on “Paul Blume,” then scroll down for the other columns on this endlessly fascinating topic.

All of you probably have a policy on sexual harassment (my bet being that, like us’ns, your policy does not approve of it). What we are emphasizing this time is that allegations of sexual harassment are matters that MUST be dealt with very quickly and vigorously, and in a manner consistent with your policy.

In a school setting, there are more than the usual potential problems of “employee-on-student” sexual harassment. That is, situations where a teacher makes a sexual suggestion or undertakes other actions that are sexually motivated toward a student. For example, an employee making suggestive comments on a student’s appearance; an employee touching a student in a manner that can be either sexual, per se, or which just makes the student uncomfortable; asking the student to go to the employee’s home. And so on.

By the way, students can make such approaches to an employee, also, but the employee, if he values his job and his freedom, will immediately spurn any such approach and report the incident to the principal.

In “employee-on-employee” sexual harassment, one employee does some thing which is based on sex, but does not necessarily solicit sex. It can involve sexual suggestions and/or touching; but just as problematic is the situation in which an employee is made uncomfortable or is simply treated differently because of that person’s sex. This can run the gamut from outright sexual touching to not including a member of one sex in employment-related activities. In a case I handled several years ago, a female employee complained because her male supervisor occasionally (and apparently unwittingly) grabbed himself in a way we have all seen the occasional baseball player do on TV. (Engage imagination, if you must. No further explanation forthcoming).

Your administrators must understand (and I’m sure most do, but...) that, whenever a report of sexual harassment is reported from anyone, an investigation must ensue immediately. The parties (and any potential witnesses) must be questioned, credibility weighed, and action taken. That’s not to say that all reports of sexual harassment are true. On the contrary, many are not, or can be based on a misunderstanding. Regardless, steps must be taken to ensure that no further acts or misunderstandings occur. They all can lead to lawsuits if not acted upon quickly.

Let’s look at an example that comes up a lot. A female student complains to a counselor, teacher, etc., that Mr. Jones has touched her when they were alone in his classroom. No witnesses. No other complaints about Mr. Jones have ever been made. Mr. Jones vigorously denies the charge, insisting that he never would do such a thing. The complaining party is of unknown credibility. What to do?

Well, Mr. Jones should be counseled, and a memo placed in his file. Both the counseling and the memo should tell Mr. Jones the details of the allegation; that there is no means of knowing whether the allegations are true; and that, in order to avoid any further such allegations, he should never be alone with a female student, and certainly never alone with the door closed under any circumstance. He must never offer a female student a ride home. Never touch a female student. Period. Try never to say anything that could be construed as sexual in nature. And tell him that, if this type of allegation recurs, it could call into question his credibility. Oh, yeah: and stay away from that particular student. If she can’t be moved to another classroom, deal with her only in the most professional manner possible and only in the minimal degree necessary to properly engage her in the same full instruction as all other students.

Okay, if we don’t know whether Mr. Jones did the deed, why do we do this? Because, in almost every case, you won’t know whether Mr. Jones did it. If we assume that the student is lying, we might not be addressing a genuinely bad situation. If we assume that the student is telling the truth, we might be putting Mr. Jones’s job in jeopardy for no reason.

This is true in almost every case of sexual harassment, employee-on-student or employee-on-employee. We usually just don’t know. So, what we have done is to tell Mr. Jones to insulate himself from possible recurrences of allegations of sexual harassment from the student (or from such allegations from Miss Smith, the librarian). But if similar allegations pop up every so often (without having videotapes with sound and a written confession), we can take a “where there’s smoke, there’s fire” approach. Suddenly, the credibility assessments turn against Mr. Jones, and/or he hasn’t taken our advice to keep himself out of potentially difficult circumstances.

With regard to legal difficulties, employee-on-employee situations can get you into a whole lot more trouble (read: lawsuits) a whole lot faster than employee-on-student, because the situations are covered by different laws. Nevertheless, your administration must act very, very quickly when this situation appears, because, regardless of the legal situation, there could be a real problem, and you don’t want this type of thing going on, at all. Let’s protect ourselves, but let’s be sure to protect the kids.

By the way, if an administrator (or other person to whom these things are reported) has a report of sexual harassment, if the person reporting it tells him that he shouldn’t do anything about it, it’s just for information, it’s too late for that. If this comes to the attention of the district in some way, it MUST be dealt with. Not wanting to get anyone in trouble is no reason to sit back and wait for something else to happen. In employee-on-employee situations, your district can be liable if you merely should have known that the sexual harassment was occurring. It can’t be overlooked or ignored.

And chaining the offender in the back yard for several days probably isn’t going to be approved by a court. Sorry, Mary Margaret. No, not even if you hit him with a rolled-up newspaper.

Previous Article (Fall 2004)- Once Again to the Subject of Grievances
Next Article (Winter 2005)-Personnel Stuff for the Coming Season

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Related Downloads (pdf):
ASBA Handbook for Arkansas School Board Members