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.

Sexual Harassment 101

[Re-posted with slight edits from a comment in a thread on NewApps, here. Please note that the remarks here are not intended to add to the speculation about the incident at Miami, but rather to help readers understand some of the typical features and complexity of one type of sexual harassment.]

One of many things I’ve learned this week is that there are a surprising number of philosophers who are apparently clueless about the warning signs of sexual predators who prey on adults (and typically exploit power asymmetries in doing so).

In an effort to raise awareness, and to help those who are potential prey identify potential predators, here’s a partial list of classic “red flags”:

  • Refusal to take responsibility for actions and tendency to blame others or external circumstances for failures
  • A sense of entitlement
  • Need for power and control
  • Low self-esteem, sometimes concealed by arrogance or over-confidence
  • Lack of empathy
  • Difficulty with commitment and inability to form genuine intimate and loyal relationships with other adults
  • Often married or in a relationship that seems superficially healthy
  • Skilled at manipulating and explaining
  • Often succeed in isolating the woman (or man) who is the object of interest — physically and sometimes emotionally/psychologically
  • Overly self-indulgent
  • Sometimes genuinely believe that the victim is seducing them
  • Tendency to sexualize and objectify women (or men)
  • Users of various types of pornography
  • Typically known as rationalizers, intellectualizers, justifiers
  • Instinctively use vulnerabilities to “help” and thereby insinuate themselves into the victim’s life
  • Frequently exhibit narcissistic tendencies
  • Skilled at testing the waters gradually, and at gaining access to their victims through deception and enticement which escalates over time
  • Often use “trust” as the grounds for developing a relationship which they typically believe is genuine

This last point is particularly important in understanding why sexual harassment is so poisonous. (And sexual harassment, by the way, does NOT need to involve any physical contact — either in the legal/Title IX sense of the word, or in the common sense use.)

Even if there is no physical contact — or in cases in which the physical contact does not produce any lasting harm — the violation of trust that accompanies most instances of sexual harassment has been shown to dramatically increase the level of trauma the victim suffers. Emotional and psychological injuries cause harm that can last much longer than physical wounds.

Imagine, for a moment, that you are a graduate student who has been lucky enough to be admitted to a PhD program in philosophy, and that, after working hard in the first and second-year graduate seminars, you find yourself in good stead with one of the top researchers in your field. He suggests that you stop by his office hours; you have sustained conversations with him about topics in your area of interest; he invites you to dinners after colloquia; he tells you you’ve got real talent/potential/interesting ideas; you go to lunch and engage in animated and intellectually satisfying discussions about your prospectus; he laughs and puts his hand on your knee and repeats what he has already said about your potential; he invites you to his office to give you a manuscript and stands slightly too close behind you as you’re looking at the books in his office; he gives you one of the books you were looking at, despite your embarrassed protests; he sits next to you at a public dinner and leans too close but you can’t say anything because it’s in public; he introduces you as a rising star to a visiting luminary; the relationship returns to normal for a while and you convince yourself that you were imagining the earlier inappropriate maneuvers; he sends you a mildly inappropriate email but you laugh it off.

Eventually, something happens that is unambiguous. And you feel shattered, foolish, gullible, an idiot. You wonder whether this is a pattern, whether you should say something to protect other women. You quietly ask discreet questions about his past, but don’t get any clear answers. You suddenly realize that everything he said might have been motivated by lust or romantic attraction or whatever the hell the feeling is (if there is any) — and that all of his remarks about your talent and the worthiness of your thesis and ideas, may have been grounded in something other than truth. You begin to wonder how transparent this is, and whether your gullibility has been on display for his colleagues to laugh at. You feel angry, cheated, cheap, an outsider.

Perhaps worst of all, you don’t know how to extricate yourself from the situation. If you confront him, you know the result will be (at best) that he will deny the inappropriateness of the relationship and perhaps even the facts of what you’ve experienced — or (at worst) that he will seek retaliation or retribution by quietly discrediting you, making it impossible for you to get a job, and perhaps even for you to work with anyone else to finish the degree. You decide to confide in a female graduate student, or in one of the female faculty. She tells you about the options for reporting sexual harassment, and either honestly warns you that the process will not be anonymous and is often a hopeless mess (particularly in cases in which the emails are ambiguous or in which the harassment was not quid pro quo and you can’t prove that it was unwelcome) — or naively encourages you to report because it’s the “right” thing to do. You decide to report because you don’t want this to happen to other female students. It doesn’t occur to you until many months later that you had absolutely *nothing* to gain by reporting, other than the satisfaction of knowing that, in the best case scenario, you might succeed in protecting future students from similar harassment. (Or at least future students at your university. Most harassers — even those charged with assault — are able to find employment at another institution more or less immediately, provided that no criminal proceedings were initiated.)

This is all hypothetical, of course (and NOT a reflection of my own experience with my dissertation adviser, or of the situation at Miami!!). But hopefully it will help those who are unfamiliar with cases of harassment to understand the complexity and range of emotions that the victim feels — and also why it typically takes months, or even years, before a woman is ready to step forward.

One good thing about the discussions that have occurred in philosophy’s blogosphere this week is that there are posts and comments written by a wide range of people who get the fact that the climate for women is a problem. Hopefully this has helped a few more people understand why even egregious cases of sexual harassment often go unreported, and why it can take months or even years before a victim is ready to talk. And hopefully those who do choose to report understand that they have literally hundreds of philosophers applauding their courage and rooting for their future success in philosophy.

[This post is being published with comments closed, to prevent further speculation about the Miami case. Those interested in additional accounts of what it’s like to be harassed can go here.]