Friday, May 17, 2013

Harrassment Jeopardy

My actual title is "Teaching employees about harassment law and policy using a game show". But the game show was "Who wants to become avoid making someone a multimillionaire" and both titles were too long. The setting was an all-hands meeting of a university lab, where about 40 graduate students, postdocs, staff and faculty learned about laws and policies relating to harassment from an employment attorney. I summarize what I learned in hopes that others will find it useful. Nothing herein is legal advice, and you should consult an attorney on matters of the law.

Harassment claims at a university are handled under three different broad categories: federal law, state law, and employer policies. The relevant federal laws are the Civil Rights Act of 1964 (Titles VI and VII), the Age Discrimination in Employment Act of 1967 and its amendments, Title IX of the Education Act of 1972, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Of these, Titles VI and IX and the Rehabilitation Act apply to educational institutions that accept federal funds; all others apply to employers. State laws vary of course, but generally include more extensive protections than the federal laws. Employer policies likewise often extend rights beyond those guaranteed by law.

The legal basis for harassment generally arises from so-called "protected classes" under Title VII, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. Sex was added at the last moment in a controversial move that may have been intended to defeat the Civil Rights act. Age was added as a protected class under the ADEA, and disability was added under the ADA. 26 states prohibit discrimination on the basis of sexual orientation; Massachusetts adds gender identity and transgender roles.  Employer policies often add further protections, and should be readily available from your employer.

Legal complaints under the law are brought to one of several agencies.  Employment complaints must be filed with the Equal Employment Opportunity Commission, which has offices in major cities, or with the appropriate state agency (e.g., the Massachusetts Commission Against Discrimination).  There is a limited time window under which complaints must be brought, e.g. 180 or 300 days.  Prior to seeking legal redress, a complainant may find it helpful to speak with an employer ombudsperson or Title IX officer.

Before this workshop, I didn't know that harassment was prohibited by the same laws that affirm equal opportunity.  Harassment is prohibited on the basis of protected class status.  Thus, if someone is nasty to you not because you are a woman, or because you are Mormon, or for any other reason associated with a protected class, there is no legal basis for action under the anti-discrimination laws.  However, employer policies (and sometimes professional society meeting guidelines) may also bar bullying, incivility, and disrespectful behavior.  Or, they may not.  If in doubt, check your employer policies.  And while common sense is always good, one should be mindful that not everyone has grown up in the same culture and has the same expectations.  It can help to introduce new employees or students to employer or university policies.

Under federal law, the employer is liable for violations.  State laws typically add liability against the harasser, anyone who aids and abets the harasser, and any supervisor who knows about the harassment and fails to act.  Thus supervisors - including all faculty who work with students - are legally responsible for enforcing a harassment-free workplace or study environment.  Moreover, under state law (at least in Massachusetts), supervisors are considered agents of the employer and as such can not and should not promise complete confidentiality about complaints: if a supervisor knows of a complaint, then the employer does, and is legally responsible.  Only ombudspersons and medical personnel are legally able to offer complete confidentiality.

The Massachusetts Commission Against Discrimination publishes a very useful document, Sexual Harassment in the Workplace Guidelines. Had I read it before our game show, I would have done better.  Fortunately, my team included some very savvy postdocs and staff members who had a good sense of the law. In addition to sexual harassment, racial slurs and employer retaliation against complaints make good bases for legal action.  I encourage you to check your own knowledge of harassment and anti-discrimination laws and policies, so that you will never make someone a multimillionaire.


Tom Kosakowski said...

Thanks for including ombuds as part of your advice. Astronomers may be more likely than most professions to have access to an organizational ombudsman. Most large research universities in North America have ombuds, as does NASA and several federal agencies, including labs like LANL.

Joan Schmelz said...

I realize that I know many women who have suffered from sexual harassment, but none who navigated the system successfully. This makes me think that the academic bar is set way too high.

Ed Bertschinger said...

Thank you for these comments, especially to Joan for raising the crucial point that enforcement of harassment laws and policies is very difficult at best. Nevertheless, it is important to inform people about laws and policies because it can change behavior. I, for one, will speak more forcefully with department chairs and deans - including those at other universities - knowing that they have liability for what their faculty do. I will encourage departments at my university to host the training workshop I participated in. Many astronomers are simply unaware of the issues and don't think they are relevant. The training makes clear that is not true.