Sexual Harrassment: The Law
Dr. Erma Jean Sims,
Sonoma State University
I want to move now into sexual harassment and usually we find more difficulty in this area, more opportunities for infractions. Because in every relationship that we have with our students and with our colleagues, our fellow teachers, administrators; there's the possibility in those relationships to harass one another. I want to look now at the California Education Code and we are going to find in that code that sexual harassment is; let's define it first. Sexual harassment means any unwanted, notice that word unwanted, sexual advance. Any unwanted request for sexual favors and other verbal or visual physical conduct of a sexual nature made by someone in the workplace or in the educational setting. So the key here is that these advancements must be unwanted. Frequently, a fellow employee may say to another employee, I'd love to sleep with you, see you after work, or make some very flirtatious comments teacher to teacher. It's only a problem if the recipient of this advance doesn't want it. Some people are flattered by the fact that people find them attractive or sensuous or sexual or would like to spend time with them. So we are looking at an unwanted sexual advance, advances. Sexual harassment and this kind of behavior is illegal. Let's look at the legal test. What would we need? If these unwanted sexual advances or behavior creates a hostile or intimidating environment the student or teacher is now fearful in the school setting. The child or teacher may not want to come to school now; they may feel fearful in that environment, of future advances. So if it creates an intimidating or hostile environment, we've got sexual harassment. If this behavior interferes with the person's work or school performance, the student is now so worried about the possibility of being harassed sexually in schools that they now begin to have problems concentrating in school. They begin to have problems performing well on academic tests, and withdraw from the academic environment, not participate, and seem to be very uncomfortable in that setting. So we've got the first test, a hostile and intimidating environment. We have the second test which is, interferes with the individuals work or school performance and if these sexual favors or advances or the behavior is such that it becomes a condition of the person's employment or their academic achievement. If the principal says to one of his female teachers, I can get you grade five which is what I know you want if you'll have dinner with me, and we could spend the evening together. Now Miss Jones, in this instance, employment and advancement or promotion in that environment is conditioned upon doing what the principal wants her to do in return for the sexual favors. Or if the teacher says to the student, I know you want an "A" and you're not doing very well in here, but if you will come to lunch time and spend some time with me, I'll be happy to give you that "A". In that instance, usually there is some touching, some fondling, some visual picture or perhaps some personal conversation that leads the student to come to the understanding that they need to comply with this teachers wishes in order to get a better grade or perhaps even that "A".
We're going to take a look now at the California Code of Regulations, another law that says that no certificated person, that's a teacher like yourself, shall directly or indirectly use or threaten to use their authority or influence to discourage, restrain, or interfere with, to coerce, or discriminate against any subordinate or any certificated person who in good faith, this is not a frivolous claim; but in good faith reports sexual harassment. There's a lot of fear oftentimes because of the power differential because the teacher has so much power and control in the classroom that students or teachers may be afraid to report sexual harassment. And as long as they have a good faith belief that they have been harassed; they have an obligation to report that harassment. The key here is that we need a good faith belief that harassment has occurred and file the report. The other part of this provision says that it specifically prohibits retaliation or reporting or disclosing incidence of sexual harassment and usually the fear around not reporting is that the teacher will harass me more, the principal will consider firing me, the parent may come in and harangue me or harass me or make my life miserable. So, California set up this law to say that you may not be retaliated against; and so even though there is some risk or some fear, don't be afraid to report sexual harassment. If you find that you are being retaliated against then you have a claim as well. It is your legal responsibility to report sexual harassment without fear of retaliation, without fear of being restrained or interfered with in pursuing these rights.
CREDITS: Instruction and Content by Dr. Erma Jean Sims, Sonoma State University. Videography and Technical support by Mark Niemann, Sonoma State University