New Harvard University Policy Demonstrates a Different Side of Sexual Harassment Law

Harvard_yard_winter_2009j.JPGHarvard University recently announced a ban on romantic or sexual relationships between professors and undergraduate students as part of its policies on “relationships of unequal status.” Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., generally prohibits discrimination on the basis of sex or gender in educational institutions that receive federal funding. The most well-known application of Title IX is probably in collegiate athletics. The law also provides protections against sexual harassment for both students and employees, which are similar to those provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The Obama administration has been quite assertive about reviewing colleges’ and universities’ compliance with Title IX. In December 2014, Harvard settled a complaint filed with the Department of Education (DOE) regarding its law school’s procedures for investigating and resolving sexual harassment and sexual assault complaints. The university made multiple revisions to its policies to address complaints brought to the DOE.

In February 2015, Harvard’s Faculty of Arts and Sciences (FAS) Committee on Sexual Misconduct Policy and Procedures issued revised policies, entitled the “Sexual and Gender-Based Harassment Policy and Procedures for the Faculty of Arts and Sciences” (the “Policy”). With regard to “relationships between individuals of different university status,” the Policy only makes one blanket prohibition, banning all “romantic or sexual relationship[s]” between FAS faculty members and undergraduate students. Policy at Art. IV(A). Sexual or romantic relationships between faculty or staff and students, or between two staff members, are prohibited when a direct professional relationship with an imbalance of power exists, such as a professor and a graduate student under their instruction. Id. at Arts. IV(B)-(C).

Both Title IX and Title VII have been interpreted by courts to include prohibitions on sexual harassment, which are viewed as a form of discrimination on the basis of sex. Title IX, however, puts a higher burden of proof on a complainant with regard to an educational institution’s vicarious liability for the actions of a professor or staff member. Under Title VII, if the alleged harasser is not a manager or executive, a complainant may still establish the employer’s vicarious liability by proving that management knew or should have known about the harassment and failed to act. A Title IX complainant must prove actual knowledge and a deliberate failure to take action by the school administration.

The U.S. Supreme Court first recognized a student’s right to recover money damages in a Title IX claim for sexual harassment by a teacher or professor in Franklin v. Gwinnett Co. Public Schools, 503 U.S. 60 (1992). It later held that a plaintiff must prove that the school administration had “actual notice” of the misconduct and was “deliberately indifferent” to it. Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 277 (1998). A student may recover damages for student-on-student sexual harassment if they can show harassment that was bad enough to “effectively bar[] the victim’s access to an educational opportunity or benefit.” Davis v. Monroe Co. Bd. of Ed., 526 U.S. 629, 633 (1999).

The employment discrimination attorneys at Phillips & Associates represent the rights of workers and job seekers in the New York City area in claims involving sexual harassment, discrimination, and other unlawful employment practices. To schedule a free and confidential consultation with a skilled and experienced employment advocate, contact us today online or at (212) 248-7431.

More Blog Posts:

Police Detective’s Lawsuit Asserts Sexual Harassment, Retaliation Claims Under State Law, New York Employment Attorney Blog, March 18, 2015
Former Congressional Staffer Files Sexual Harassment Lawsuit Under Statute that Applies Federal Anti-Discrimination Law to Members of Congress, New York Employment Attorney Blog, March 11, 2015
Soccer Team Owner Sexually Harassed Dance Team Members, According to Lawsuit, New York Employment Attorney Blog, March 4, 2015
Photo credit: By chensiyuan (chensiyuan) [GFDL or CC BY-SA 4.0-3.0-2.5-2.0-1.0], via Wikimedia Commons.

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