Sexual Harassment and Instructor

¶ … Sexual Harassment Charges The chair of the kinesiology department at a college or university confronted with a sexual harassment charge from a student concerning the inappropriate touching of a breast by a male instructor during weight training instruction and who now refuses to return to class will need to understand the legal definition of sexual harassment and relevant precedential case laws to provide an appropriate organizational response.

To this end, this paper reviews the literature to provide a definition of sexual harassment, when it was implemented into law in the United States, and an analysis of selected sexual harassment cases including their validity. Finally, a recommendation for the college or university, a summary of the research and important findings concerning sexual harassment cases are presented in the conclusion.

Review and Analysis According to the legal definition provided by Black's Law Dictionary, sexual harassment is "a type of employment discrimination [which] includes sexual advances, requests for sexual favors, or other physical or verbal conduct of a sexual nature prohibited by Title VII of the 1964 Civil Rights Act and commonly by state statutes" (1375).

By contrast, the Equal Employment Opportunity Commission Guidelines (1980) define sexual harassment as follows: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. (203).

As can be seen from the above definitions, the strict legal definitions of sexual harassment apply only to employees but there have also been cases involving students at public and private colleges and universities (Lee and Greenlaw 123). Following the passage of the 1991 amendments to Title VII that provides for jury trials in cases of sexual harassment, the number of sexual harassment cases filed in the United States has significantly increased, and there are currently about 60 new cases filed each workday across the country (Preusser and Bartels 47).

The economic outcomes of sexual harassment cases have also increased and currently average about $38,500 for settlement (Preusser and Bartels 47). Some of the more high-profile sexual harassment cases in recent years have included an out-of-court settlement of $34 million to employees of Mitsubishi Motor Manufacturing. This case was filed by the Equal Employment Opportunities Commission (EEOC) as a class action on behalf of 300 women employed by Mitsubishi.

In this case, the EEOC alleged that "the toleration of a sexualised working environment [was] manifested in managers attending 'audience participation' sex bars as part of Japanese business trips, obscene graffiti, male workers exposing themselves, the passing around of pornographic photographs of male workers engaged in sex acts, and verbal and physical assaults against women" (Mitsubishi lawsuit, 2016). The Court held that Mitsubishi's argument that the claims were barred by the statute of limitations was erroneous and the company voluntarily agreed to the multi-million dollar settlement in June 1998 (Mitsubishi lawsuit, 2016).

In addition, a case that involved a teacher engaging in sexual activities with a high school student which raised the issue as to whether school officials were liable even if they were unaware of these activities occurred in Gebser v. Lago Vista Independent School District (106 F.3d 1223 [5th Cir. 1997]; 118 S.Ct. 1989 [1998]). (Lee and Greenlaw 123). In this case, the school district did not have a policy concerning sexual harassment or any reporting mechanism in place as required by federal law.

Notwithstanding these failures on the part of the Lago Vista Independent School District, however, the U.S. Supreme Court held that, irrespective of the age of the victim involved, the sexual relationship between the teacher and student were consensual and the school district was not liable. In a narrow 5-to-4 decision, the Supreme Court held in favor of the school district and stated that there must be two criteria satisfied for a sexual harassment plaintiff to recover damages pursuant to the 1991 amendments to Title VII as follows: 1.

The party must show that a school district official, with the ability to institute corrective measures, knew of the forbidden conduct; and, 2. A showing must be made that despite having knowledge of the forbidden conduct, the educational establishment deliberately failed to respond in a proper manner (Gebser v. Lago Vista Independent School District, 1998). Likewise, in the case of Oncale v. Sundowner Offshore Services, Inc. (83 F.3d 118 [5thCir. 1996]; 118 S.Ct.

998 [1998]), the court was faced determining whether same sex discrimination can take place between a male employee, Joseph Oncale, and his supervisor and other male employees (Lee and Greenlaw 123). In this case, the Supreme Court held that the provisions of Title VII apply equally to same-sex sexual harassment cases and concluded that "Such discrimination, whether motivated by sexual desire or not, is actionable so long at it places its victim in an objectively disadvantageous working condition, regardless of the victim's gender" (Oncale v. Sundowner Offshore Services, Inc.).

Conclusion and recommendation Taken together, it is clear that sexual harassment can.