Additional Remarks on the Recent DOE Warning About Retaliation

The United States Department of Education (DOE) issued a new “Dear Colleague” letter on April 24th, 2013, reminding educational institutions that retaliation against those who file informal or formal complaints regarding sexual harassment or other civil rights violations is a violation of federal law.

(This is the third “Dear Colleague” letter issued to clarify the DOE’s interpretation of Title IX enforcement in relation to sexual harassment. The release of the second “Dear Colleague” letter on April 4, 2011 marks the point at which the Office of Civil Rights (OCR) began requiring that grievance procedures use just a “preponderance of evidence” — the “more likely than not” standard used in civil cases, rather than the stricter “clear and convincing” requirement used in criminal cases.)

The most recent “Dear Colleague” letter (DCL) was released in the wake of recent Title IX retaliation suits filed by students and employees at several universities, including the University of North Carolina at Chapel Hill, Swarthmore College, Occidental University, and Yale University. The OCR has indicated that it will vigorously enforce the prohibition against retaliation, and points out that the letter unambiguously broadens the scope of what can be counted as retaliation via a parenthetical remark that lies at the heart of the letter:

“… once a student… complains formally or informally to a school… the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation.”

According to the OCR, what needs to be shown to establish a case of retaliation is: (1) that the complainant engaged in “protected conduct” (by, e.g., making an informal or formal complaint about civil rights violations); (2) the complainant suffered a “materially adverse” action (including intimidating, threatening, coercing, or in any way discriminating against the individual), where a “materially adverse” action is defined as “any action that is likely to dissuade a reasonable person in the complainant’s position from exercising her legal rights”; and (3) that there is sufficient evidence to prove that the materially adverse consequence was related to the protected action.

In other words, any action that would dissuade a reasonable person from complaining constitutes retaliation, assuming that a link between the action and protected conduct can be established.

In addition to requiring that universities protect complainants from retaliation by the recipient, Title IX also requires that universities protect complainants from retaliation by the recipient’s associates. This requirement is made explicit in the April 4 2011 DCL:

“Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged perpetrator may subject the complainant to name-calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. At a minimum, schools must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.”

One of the more interesting and recent test cases is a 2012 U.S. Ninth Circuit Court appellate review of a Title IX retaliation suit filed by a graduate student at the University of Oregon, who alleged that the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. The Ninth Circuit Court of Appeals ruled in her favor, reasoning that: she engaged in protected conduct when she sent a memo to the department summarizing graduate students’ complaints about gender bias in the department; the resignation of her dissertation committee chair was an action that “might have dissuaded a reasonable [person] from making or supporting a charge of discrimination”; and there was sufficient reason to think that the action was related to the conduct, based on the timing of the resignation, the fact that the faculty member knew about her complaint, the fact that he had praised her work in the past, the fact that he did not help her secure a replacement chair, and the fact that he had exhibited gender bias in other contexts.

Noncompliance with the prohibition against Title IX retaliation, according to the April 24 2013 DCL letter, may result in fines, loss of federal financial assistance, redress for the complainant including “monetary relief”, legal proceedings against the university, and remediation such as required training for employees of the university about how to avoid engaging in retaliation.

Title IX complaints typically must be filed with the OCR within 180 days of the incident — though there are some established exceptions (e.g., a case that involves wrongful termination), and multiple complainants may file a case that includes older incidents if at least one of the related incidents is within the requisite time frame.

Heidi Howkins Lockwood has provided fantastically useful information about university legal obligation regarding sex discrimination and retaliation. Check it out here.

The murder of Pinky Mosiane, and, how not to pursue gender equality at work

Pinky Mosiane was murdered at her place of work, the Anglo Platinum owned mine in South Africa. This article brings to light the context of that murder: one in which formal moves towards gender equality (the Mining Charter prescribing that 13% of employees should be women) have not been accompanied by changes in material conditions that ensure the safety of women (and indeed men) working in those environments. Sisonke Msimang writes:

although women are now being sent underground in greater numbers, nothing has been done to make mines safe spaces in which they can work free from sexual harassment and violence.

Women’s increased participation has been accompanied by informal practices (within problematic bonus structures which incentivise risk taking) in which women are treated as inferior workers and sexually exploited in exchange for their ‘share’ of the team bonuses:

In mines where women are part of underground teams, their male colleagues often resent their presence, suggesting that they are unable to mine as quickly. To meet team targets for production bonuses, a practice of bartering sex for bonuses and substitute labour has evolved. Essentially, female miners are coerced into stepping aside to enable their teams to meet the bonus targets. They receive a reduced share of the financial reward that goes to the team. Often, they are also forced to have sex with their colleagues in order to qualify to receive the bonus payments.

The judiciary have suggested that the rape and murder of women in mines is a ‘gender specific issue’, rather than a safety issue, and as such not a matter for investigation by the Chamber of Mines.

More here.

The Sunday Times on McGinn

In the wake of the popularity of the NY Times article on McGinn, the Sunday Times has taken up the topic (most of the article is behind a paywall), with rather more mixed results. Their headline reads “I Think, Therefore I Spark A Sex Row.” Yeah, they’re not kidding with that one.

 

McGinn’s penchant for erudite wordplay, and his enthusiasm for complex intellectual argument, have complicated his attempts to defend a series of suggestive emails that he sent to the woman student, who complained about him to university authorities.

It has also exposed an apparent culture gap between a brilliant but slightly otherworldly British thinker and an American academic community gripped by political correctness and nervous of any form of sexual scandal.

 

Seriously?

 

Gender, the Fed, male networks and implicit bias

Great article by Matt Yglesias. (Thanks, M!)

I think about myself. I’m a man. Like most American men, I’d say a majority of my close friends are men. What’s more, most political journalists are men. So when I think about my closest personal associates in the field of political journalism, I come up with a list of cronies and buddies and confidantes who are mostly men. And that’s life. But precisely because this is such a banal state of affairs, I try to go out of my way to be cognizant of it when I’m in a position to suggest candidates for jobs. If I go about devising a “gender blind” list of suggestions, I’m going to come up with a male-dominated list. Not because I’m some egregious misogynist, but because that’s my life and that’s my field. But this men-recommending-other-men dynamic is poisonous for the profession and for the world. The right thing to do is to sit around and say “I’m going to come up with some women to add to my list of recommendations before sending it over even if that means I need to think a bit harder.” Because unless someone does that, nothing ever changes.