A Reminder of Sexual Harassment’s Potential Impact on Diversity
Written by Christopher Leon Jones, Jr.
A reprint from Affirmative Action Register, Wednesday, 20 May 2009
Earlier this year, the U.S. Supreme Court decided the case of Fitzgerald v. Barnstable School Committee.2 In a unanimous decision, the Court held that Title IX was not meant to provide an exclusive mechanism for addressing gender discrimination in schools, including sexual harassment. As discussed here, this case reminds us about the responsibilities that we have in creating work environments where individuals are not only free from discrimination, but also are supported in a manner that will allow them to reach their fullest potential. Whether it happens to students, faculty or staff, one of the great tragedies that may occur in sexual harassment cases is the lost potential of what might have been for both victims and perpetrators.
In Fitzgerald v. Barnstable School Committee, Lisa and Robert Fitzgerald’s daughter, a kindergarten student, told her parents that whenever she wore a dress, a third grade boy would bully her into lifting her skirt on the bus. The Fitzgeralds discussed the matter with school officials; however, they were not satisfied with the response. They then filed suit alleging gender discrimination (sexual harassment) and violations of Title IX against the Barnstable School Committee (Barnstable). They also filed claims under 42 U.S.C. § 1983 (§ 1983) for violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment against Barnstable and the school system’s superintendent, as an individual. The Court of Appeals held that Title IX precluded the § 1983 claims for gender discrimination. The Supreme Court disagreed.
In reversing the lower court, the Supreme Court found simply that Congress did not intend for other claims to be precluded where a suit has been brought under Title IX. Accordingly, claims under § 1983 are also available. Importantly, the Court noted that a key consideration in the case was whether there was an express statement in Title IX that limited it as the only means for private redress. The Court found that “Title IX contains no express private remedy, much less a more restrictive one.”3
While not complex in its reasoning, what is significant about this case for schools and the people who work in them is that § 1983 creates a private right of action, whereas Title IX is limited to an action against the institution. In other words, this decision affirms a basis for individual liability in civil rights claims and is a warning to those who might engage in discriminatory conduct.
Diversity in the workplace, with the variety of views, values and experiences that it brings, has been seen as an integral factor that is necessary to accomplishing the mission of employers, including educational institutions. Fitzgerald v. Barnstable School Committee reminds us of the potential impact of sexual harassment on developing a diverse workplace. In its opinion, the Court noted that even after the Fitzgeralds began driving their daughter to school, the daughter continued to report unsettling incidents at school and had an unusual number of absences through the end of a school year.4 While there are differences between a young girl of kindergarten age and an adult woman, what is important to recognize is there is an effect on the individual who is subjected to such victimization. These effects may be manifested in not only dissatisfaction and disappointment, but withdrawal and isolation.5 Yet, what is also not known are the numbers of those victims who leave a position or a career path because of their disgust with the environment in which they work or the lack of response to their concerns.6
Sexual harassment and its effect as a cause of job turnover is not something to be dismissed lightly. Peter Hom notes in an article on the subject that there is evidence that sexual harassment plays a role in women leaving positions.7 His research notes a 1992 UCLA poll of women executives at 1,500 companies that revealed 59 percent had been sexually harassed at work and 5 percent dealt with the conduct by leaving their positions.8 Moreover, not only is there an effect on the victims, but there is also a related effect on women who witness harassing conduct. This effect is manifested in job dissatisfaction and psychological distress.9 Author Brenda Seals reports that in higher education:
“Lost productivity because of sexual harassment may decrease the number of women who seek academic careers, and for those who pursue academic careers, decrease the number of women gaining promotion or choosing to stay in academia. Sexual harassment in academe may undermine the ability of female faculty to effectively teach, conduct research, mentor, and act as role models. Ultimately, sexual harassment may contribute to sex segregation in the university, indirectly contributing to sex discrimination.”
As illustrated above, in general, there is a potential impact to those individuals in the workplace in general and a unique set of circumstances involving work in educational institutions in an environment where sexual harassment may be occurring.
Finally, one can encounter harassment or other discriminatory conduct at any stage of a career. Yet, it need not have the devastating consequence of derailing a career. Seeking out help and refusing to suffer in silence is a key step to ending the perpetuation of such conduct. Employers have an obligation to take measures that will end any current harassment. Therefore, it is important to address these issues in an affirmative manner to allow for the conduct to be stopped and allow individuals to continue to be successful in their chosen profession.
Christopher Leon Jones, Jr., J.D., is the Director of Equal Opportunity for Wayne State University and a member of the AAR Editorial Board. His professional experience as an attorney and administrator has involved service in the public and private sectors practicing in the areas of civil rights law and employment discrimination. The views expressed in this article are those of the author and do not necessarily reflect the official policy of Wayne State University or Southeastern Oklahoma State University.
