SEXUAL HARASSMENT AWARENESS AND PREVENTION

Mackenzie Wilfong, J.D.

Director of Affirmative Action

Title IX Coordinator

Oklahoma State University

WHO I AM AND WHAT I DO Director of Affirmative Action and Title IX

Coordinator at OSU Licensed Attorney in Missouri

No longer practice law This presentation is not legal advice

Previous positions: Attorney in private practice exclusively

representing educational institutions in teacher terminations, student discipline hearings, civil litigation, and IDEA due process hearings.

Enforcement Attorney for the US Department of Education Office for Civil Rights in Region VII. Regulated all educational institutions in Oklahoma,

Kansas, Missouri Nebraska, and South Dakota.

NOTICE OF NONDISCRIMINATION Oklahoma State University does not

discriminate on the basis of race, color, national origin, sex, disability, sexual orientation, veterans’ status, religion, or age in its programs and activities. Mackenzie Wilfong is designated to handle inquiries regarding the non-discrimination policies, and can be reached at 744-9153 or at 408 Whitehurst, Stillwater, OK.

http://www.ed.gov/about/offices/list/ocr/docs/nondisc.html Google “notice of non discrimination”

Find out who your designee is at your local school District

THE DISCRIMINATION TRIUMVIRATE?

Different Treatment An employment action motivated by [any

protected category]. Disparate Impact

An employment practice that is not meant to be discriminatory but has nevertheless have a negative impact on a protected group.

Retaliation

DO NOT RETALIATE Three elements of retaliation

Adverse action against employees for engaging in a protected activity.

What is a protected activity? Examples include filing an informal internal

complaint, filing a formal complaint in a law suit or to the EEOC, and participating in an internal or external investigation as a witness.

Employee does not have to be right about the allegations, but just must be in good faith. The underlying complaints does not have to be substantiated.

SEXUAL HARASSMENT IS A FORM OF GENDER DISCRIMINATION, WITH ITS OWN RULES

Broad definition of sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Two forms of harassment Quid pro quo Hostile environment

“Welcomeness” – Intent vs. Impact EEOC takes position that employer not liable for

all conduct of a sexual nature. The behavior must be unwelcome Complainant engage in sexual banter or solicit the

sexual discussion Did employee “solicit or incite” or did they regard

behavior as “undesirable or offensive.”

QUID PRO QUO

Elements Sexual advances were unwelcome

Solicit/incite or undesirable/offensive Harassment was sexually motivated Employee’s reaction to the individual’s advances

affected a tangible aspect of employment like… Hiring, firing, tenure, promotions, appointment, raises,

better office, better review, internships, grades, admissions to programs, dismissals, recommendations, reporting disciplinary actions, reporting academic integrity concerns

HOSTILE ENVIRONMENT A hostile environment exists when the workplace

or academic 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 Conduct can be verbal, visual, or physical

E-mail, text messaging, voice mail, gifts, letters or notes, non-verbal behavior, social media messages at work

Objective or Subjective offensive Unwelcome by a reasonable woman standard

Severe or pervasive is analyzed by looking at: Frequency of conduct Severity of conduct Physically threatening or humiliating Interferes with the employee’s job performance

WHAT FORMS OF SEXUAL HARASSMENT DO STUDENT’S EXPERIENCE?

In a 2006 American Association of University Women (AAUW) report, 62% of students state they have been sexually harassed on campus. 35% tell no one, 49% tell a friend, and 7% report to a college

employee. http://www.aauw.org/learn/research/upload/DTLFinal.pdf

AAUW report outlines broad categories of student to student harassment Sexual comments or jokes (Female 57% and Male 48%) Sexual touching (Female 28% and Male 22%) Sexual texting/pornographic email (Female 15% and Male 22%) Calling an individual derogatory homosexual names (Female

13% and Male 37%) Spreading rumors about sex life (Female 15% and Male 17%)

Faculty/staff to student harassment (18% of students) Sexually offensive jokes in class Using examples in class and calling out a student as the example

HOW DOES HARASSMENT MAKE STUDENTS FEEL?

How does the harassment make students feel varies greatly by gender Self conscious or embarrassed (Female 57% & Male 34%) Angry (Female 55% & Male 32%) Less confident (Female 35% & Male 16%) Afraid or scared (Female 32% and Male 9%)

Impact on Education Avoid the person (Female 48% and Male 26%) Avoid a place (Female 27% and Male 11%) Hard to study or concentrate in class (Female 16% and Male

8%) Got someone to protect them (Female 16% and Male 4%) Did not participate as much in class (Female 10% and Male

6%)

WHAT I TELL STUDENT AFFAIRS PERSONNEL ABOUT ADDRESSING STUDENT HARASSMENT OR DISCRIMINATION

Be approachable and listen respectfully. Do not panic, you are not alone. Draft a memo or note to yourself after the conversation

that caught your attention. Continue to document all conversations with student, faculty, or

staff regarding related issues. Overcome your discomfort for taking issues outside the

College and report any incidents of harassment either to me (faculty/staff issues) or Student Conduct (student issues). Do not just let it lie.

Try to stay neutral. You may direct the student to my office or the student

conduct office so we can follow up. Offer students the option to report through Ethics Point, the

confidential system.

WHAT I TELL MANAGERS ABOUT ADDRESSING EMPLOYMENT HARASSMENT OR DISCRIMINATION

How will the issue come to you? I have a problem with _____. _____ is bothering me. You know _____ is really a pain. _____ will not leave me alone. I feel like _________ is always staring/leering/making comments/lurking.

Prompt and appropriate response every time Initial questions to ask before they stop talking

Go back to incident and provide a full narrative of what happened. What do you recall, what happened next? How did you respond, how did you feel, how did you react?

Follow up with where, when, how long, anyone else heard or saw? Did you talk to anyone after or write anything down?

Do you have a dairy or day planner with notes? Did you keep an voicemail, texts, emails, pictures, Facebook wall, etc.

Have you reported this or discussed this with anyone else? Any threats or promises based upon this interaction? What would you like to see happen as a result of this investigation? Anything else you would like to add? Any questions that I should ask that I did not?

BE CAUTIOUS If there are no witnesses, did it really happen?

If you anticipate that a discussion with a student may be problematic, ask that a colleague be present.

Set Boundaries If students request to speak to you about “something personal” refer them

to the Counselor where licensed counselors can meet with them and maintain strict confidentiality. If the student confides in you and expresses concerns regarding discrimination or harassment, you have to report it, there is no privilege.

Don’t stand so close to me… How big is your personal bubble? Sit down next to a student, do not hover. We are a very diverse community (race, ethnicity, age, etc.) which increases

the potential for misunderstandings.  

Facebook friends or students Set boundaries on use of social media, and be consistent.

Know who you are Do you attract drama? If so, beware.

OSU REPORTING MECHANISMS

Call Mackenzie Wilfong, Director of Affirmative Action Mackenzie.wilfong@okstate.edu 405-744-5371 I accept all complaints of harassment OSU’s

policy includes all forms of discrimination. Ethicspoint

http://www.okstate.edu/psi-per/ abuse@okstate.edu

REFERENCES Gupta, Neena, Sexual Harassment a guide to conducting investigations, LexisNexis 2004. Dobrich, Wanda et. al., The manager’s guide to preventing a hostile work environment,

McGraw-Hill 2002. Salibury, Jan et. al., Investigation Harassment and Discrimination Complaints, Pfeiffer

2004. Bradberry, Angela et. al., Investigation sexual harassment: a practical guide to resolving

complaints, Thompson 2007. Educator’s Guide to controlling sexual harassment, Thompson monthly bulletins AAUW Education Foundation, Drawing the line on sexual harassment, 2006. West Virginia Division of Personnel Employee Relations Section, Supervisor’s guide to

preventing sexual harassment in the workplace, 2005. Susan A. Munkres, Claiming “Victim” to Harassment Law: Legal Consciousness of the

Privileged, Law & Social Inquiry Volume 33, Issue 2, 447–472, Spring 2008 Ellen Peirce, Why Sexual Harassment Complaints Fall on Deaf Ears, The Academy of

Management Executive (1993), Vol. 12, No. 3 (Aug., 1998), pp. 41-54. Christopher Uggen, Sexual Harassment as a Gendered Expression of Power, American

Sociological Review, Vol. 69, No. 1 (Feb., 2004), pp. 64-92. Linda Kalof, The Influence of Race and Gender on Student Self-Reports of Sexual

Harassment by College Professors, Gender and Society, Vol. 15, No. 2 (Apr., 2001), pp. 282-302.

EEOC policy guidance on current issues of sexual harassment, Notice 915-050. Missouri Attorney General, http://ago.mo.gov/faqs/sexual-harassment.htm

THANK YOU FOR YOUR TIME AND ATTENTION

Mackenzie Wilfong, J.D.

Director of Affirmative Action

Oklahoma State University

Mackenzie.wilfong@okstate.edu

405-744-9154