Since most Universities receive Federal funding, Federal law as to discrimination and sexual harassment often applies. The end result is to impose upon the University environment strict liability on the employer University for the inappropriate acts of its employees-including professors. This article briefly outlines the Federal law that would apply.
Example Case:
A recent case involved a college student who was enrolled in a poetry class. The student received a grade of “F” on a paper she wrote for the class. The student made an appointment with her professor to discuss the paper she had written. When the student arrived to meet with the professor in his office, the professor closed the door, turned the radio on, and, to her shock, started using sexually explicit language to discuss his personal sexual history and his sexual fantasies.
The professor then gave the student sexually explicit poetry to read and asked her to read some of it aloud during the appointment. Towards the end of the meeting, the professor took out his grade book, but never actually reviewed the student’s paper or discussed her final examination. The professor asked the student if she would be happy with a final grade of “A” for the course. The professor stated that he felt that a grade of “A” was fair for the course. No actual touching or direct solicitation occurred.
The student reported the incident to school authorities and later sued the University for sexual harassment.
The University was held strictly liable for the acts of its employee. It was required to pay damages in addition to taking appropriate remedial action against the professor.
Basic Federal Law:
Strict liability imposes liability upon a party even if that party has performed no wrongful act. It is a doctrine that states that the underlying relationship between that party and the wrongdoer is such that the party is liable if the wrongdoer is liable. That is the liability imposed upon the University.
Under Federal law, when a college student reports a case of sexual harassment by a professor, the school must follow certain administrative procedures, typically having the Dean convene an ad hoc committee to conduct a formal investigation of the charges. Assuming the facts warrant, often, the professor involved will be formally suspended from teaching. When the committee is done with its investigation, the school may consider bringing formal charges against the professor.
Under Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681-1688), sexual harassment is prohibited in any educational program that receives federal funding. It is usually held that when a university professor has “supervisory authority” over a student and uses that authority to sexually harass a student, the college or university involved is held strictly liable for the sexual harassment. In the case above, since the professor had authority to review and grade the student’s work, he was in a position to have a significant effect on her academic success at the school. Because the professor approached the student as her professor while acting on behalf of the college, the school was subject to strict liability for the sexual harassment in this case.
Most universities are held liable for conduct of a professor that constitutes sexual harassment because this liability encourages students to report sexually harassing behavior from professors.
Note that Universities that do not receive Federal funding would not necessarily be bound by Federal law. They would still be bound by State law, but that law varies widely from State to State. Further, most Universities have their own internal, often extremely rigorous procedures as to how to investigate and punish inappropriate conduct.
Analysis:
One aspect of the issue of strict liability for Universities not often considered is that the typical University is an international institution with students and professors coming from all over the world and thus subject to the particular customs and standards of the nation in question. A French or Russian professor or student will have a very different concept of appropriate conduct than an American or British professor or student. As one French professor told the writer, “You Americans are so obsessed with sex that you spend all your time pretending that the typical interaction of a man and a woman must be sexual and must be unwelcome to the woman.”
The Federal government, however, imposes its standards on appropriate conduct and could argue that in the United States, especially with students, our norms will be imposed regardless of the norms of the original country of the person involved. And the use of strict liability in effect forces the University to take those steps necessary to safeguard the students regardless of the nationality or background of the teacher in charge.
The critical test is the method utilized by the University to fairly and fully investigate the claims. Too often the concept of innocent until proven guilty is supplanted by political correctness or cynicism and to achieve effective efforts to determine the truth requires an objective inquiry that is not prejudiced.