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06/01/93

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Senate endorses sexual harassment policy concept; suggests revisions

STANFORD -- Efforts by President Gerhard Casper to adopt a new sexual harassment policy drew praise from the Faculty Senate Thursday, May 27, as well as a suggestion that he seek help from faculty colleagues with expertise in the field in revising the latest draft.

The senate voted unanimously to endorse the principles underlying the latest draft policy, but members offered a range of advice and asked for a chance to endorse the final version at their first meeting next fall.

Casper expressed appreciation for improvements that faculty suggested to the latest draft.

It is the responsibility of the president - rather than the Faculty Senate - to promulgate a sexual harassment policy that will apply to faculty, staff and students. Different mechanisms to resolve disputes apply to each group.

The senate considered asking Casper to appoint a committee of faculty, staff and students to help him revise the draft but, in the end, decided that sufficiently broad consultation already had taken place. A working group composed of representatives from various constituencies began work on the revision two years ago in response to recommendations from the university's Sexual Assault Task Force. The initial draft was put out for public comment in April.

However, senators said that several colleagues - names mentioned were Deborah Rhode, Myra Strober, Frances Conley and Terry Karl - had particular expertise in the field, and they urged the president to draw on them this summer as he develops the final version. Because of another commitment, Casper had left the meeting before the suggestion was made.

Rhode, a law professor, often gives expert testimony on the subject and has helped other universities draft their policies.

Strober, a professor of education, heads the Committee on the Recruitment and Retention of Women Faculty. She said during the meeting that her committee has heard about several instances of harassment.

"Contrary to the media view," she said, "most cases we've heard about are not at the Medical School."

Conley, a professor of neurosurgery, drew media attention in 1991 when she resigned her tenured post to protest the environment of "pervasive sexism" and insensitivity she said was prevalent in the school. She later reversed her decision, citing progress the school was making in addressing the issue.

Karl, associate professor of political science and director of the Center for Latin American Studies, became one of the first women in academia to file and win a grievance for sexual harassment. The case involved a senior faculty member at Harvard who was director of the program in which she was an assistant professor. She spoke at length during the meeting, offering numerous suggestions, most of which Casper said he supported.

A languishing policy rescued

Casper introduced the topic by apologizing for the fact that the draft policy had "languished for three years in the Office for Multicultural Development."

He said he received 140 suggestions and reactions from community members after the draft policy was published, and comments solicited, in the April 7 Campus Report and in the Stanford Daily.

The draft defined sexual harassment, warned of the perils of consensual romantic relationships, and proposed a system for handling concerns and complaints. That involved trained harassment advisers to help individuals; an adviser coordinator, who would supervise the advisers, encourage education to prevent harassment, and keep records showing the disposition of complaints; and a Sexual Harassment Panel that would be available to assist school or administrative officers.

Many of the suggested changes were taken into consideration, Casper said, although the latest revision still needs rewriting and editing.

The issue heard most often - "and quite rightly so," he said - was that of confidentiality.

A frequently heard argument, he said, was that records should be kept of complaints, informal and formal, in the interest of spotting possible repeat offenders.

"I actually was opposed to that," he said, adding that he was "lambasted" for his position.

In the trade-off between confidentiality and keeping records, he was concerned that records would end up in the public domain through subpoena. "There is no way we can give an absolute guarantee" of confidentiality, and it is important that faculty, staff and students know that, Casper said.

The Stanford policy differentiates between two types of complaints: a "concern," in which somebody is encouraged to air a potential case of harassment, and a "charge," in which a record will be kept.

Once a charge is made, confidentiality can no longer be guaranteed, in part because the accuser will be informed of the action and in part because records then will be kept.

Complaints about the prior draft "were quite justified," he said, and the current draft tried to address them.

Stanford has very "legalistic" grievance procedures that cannot easily be reviewed and adjusted to sexual harassment situations, he said. Absent those procedures, the new policy could have been dealt with in a more straightforward manner, he said.

Casper asked that senators give him reactions to the policy, but not get stuck at the level of "wordsmithing." He said he would put the finishing touches on the policy this summer, and issue it in the fall. The policy would be reviewed a year later, and revisions made if necessary, he said.

Feedback from a victim

Accepting Casper's invitation for feedback, Karl presented four pages of suggested modifications, co-signed by Elizabeth Traugott, professor of linguistics, who serves with her on the senate Steering Committee (see text).

Karl commended Casper for bringing forward the problem of sexual harassment and giving the community and the senate opportunities to comment on the draft document.

The current draft, she suggested, should offer more information on what constitutes sexual harassment, help supervisors deal with harassment complaints, and instruct victims clearly about what to do and where to go for help.

Her suggestions, she said, were not intended to be "comprehensive, nor do they necessarily include language that should appear in future documents."

Rather, she said, they are aimed at highlighting areas where improvements are possible:

  • In the introductory section of the policy, Karl suggested adding information on who victims could consult "for advice, informal counseling and help about how to stop the harassment by informal or formal means."

Informal means of resolution are suggested, whenever possible. There is significant evidence, Karl said, "that harassment complaints, when dealt with as closely as possible to the source, are resolved more easily and with less pain for all concerned."

Language should be added, she said, to the effect that "attempts at reprisals are in violation of the law and will be met by appropriate action," and the document should note that sexual harassment is against the law of the United States and against Stanford policy.

Karl said that many people do not complain about sexual harassment because of fear of reprisals that may ruin their careers. She said that it is possible that she and Fran Conley have been the only two women in academia to have maintained strong careers after being involved in very public harassment cases.

  • Karl suggested expanding the definition of sexual harassment, citing as an example language from the 1984 Equal Employment Opportunity Commission guidelines, which is widely used as the standard definition of sexual harassment.

Missing from the Stanford version, she said, is a provision spelling out the two kinds of harassment: "quid pro quo," in which a person with organizational authority makes threats or offers rewards, and "hostile environment" harassment, which may be caused by supervisors, subordinates or peers and may include such things as sexual jokes and innuendos, remarks about a person's body, sexually explicit visuals and unwanted touching.

Karl said it was important to explain the distinctions in the policy because "most people do not understand what it is." Enhancing the definition would improve the document as an educational tool, she said.

  • Examples of sexually harassing behavior could be added to the document to illustrate the range of inappropriate behavior, Karl said. She included five examples drawn from the University of Minnesota Policy on Sexual Harassment to help clarify what constitutes harassment.

The key point, she said, is that harassment is not about intentions, but about behavior and its impact.

"It is determined by whether his or her conduct is unwelcome to the individual to whom it is directed," Karl said.

Without clarification, it is "difficult for supervisors to judge what is before them and difficult for victims, or even people charged, to assess what appropriate actions they may take," she said.

  • The existing draft gives the impression that formal procedures are more accessible than informal ones, Karl said, repeating her opinion that situations should be resolved as informally as possible and at the lowest appropriate level.

She suggested that the draft should specify how to handle formal and informal procedures in an appendix, rather than refer complainants to other handbooks and documents.

The current draft, Karl said, is based on an assumption that sexual harassment cases can be handled the same way as other academic grievances.

"In my experience, that is not true," she said.

For the victim, sexual harassment involves "very serious degradation and humiliation, and it may involve great personal pain," Karl said. "In many cases, harassment is the abuse of power based on the extraction of sexual favors, and it is very close to rape."

When harassment occurs in an institution bound together by trust - the trust between faculty and students - the bonds are broken, and "complainants are likely to enter the complaint process with a very high level of distrust and poised for flight."

She cited the case of a student who was reluctant to carry forward a case because it would have been adjudicated by an emeritus professor.

"This young student did not feel confident that an emeritus professor, either by gender or by age or by familiarity with these types of issues, would have been an appropriate judge of the facts of this case," Karl said.

  • Confidentiality requires balancing the privacy of the complainant and the accused, Karl said. She put forward language that she said is widely used but that she considers inadequate: "The university cannot make an absolute guarantee that information provided regarding possible sexual harassment will remain confidential, but it can assure individuals that it will keep information confidential to the extent required by law and by the due process protections afforded the accused."

This contrasts with the confidentiality provision in Stanford's latest draft: "Every reasonable effort will be made to protect the privacy of the complainant, and the person being charged, in the investigation and resolution process, subject to the need to conduct a full and impartial investigation, remedy violations, monitor compliance, and administer this policy."

  • Karl also suggested adding a due process clause.

"People must be informed if there is a complaint against them, and they must be given a right to address and redress that complaint," she said. It also is important that complainants understand due process, she said.

Four cases in four months

Karl told Casper and the senate that four cases of sexual harassment have been brought to her in the last four months. None of the four individuals has wanted to go through a formal grievance procedure, and all have suffered greatly, she said.

One person whom she actively encouraged to use a grievance process "has again suffered greatly in that process, and I do not feel I could advise any student to go through Stanford's sexual harassment procedures as they currently exist," she said.

Although she said she is eager to see a new policy adopted, "I think the current draft is not adequate," Karl said. It must be enhanced, and that can be done in consultation with experts in the field during the summer, she said.

Karl concluded by saying that sexual harassment "wreaks havoc on people who have experienced it. It is something most people don't know or understand unless they have been close to someone who experienced it.

"It results in unfinished classes, unfinished degrees, unfinished careers and unfinished lives. It leads quite frequently to suicide by victims. It destroys reputations. It can absolutely be prevented, and it can be handled better than any universities handle it today."

She said she hoped the president would soon adopt a revised and enhanced version of the policy.

Casper thanked Karl for her "eloquent statement," and said he agreed with the substance of her criticisms.

However, he said he is "less enamored" of the legalistic Equal Employment Opportunity Commission language she suggested, and may not want to go that far when he redrafts the policy this summer. There are very delicate balances to be struck between speech and regulating behavior, Casper said. The commission, in his opinion, has "not struck that balance in ways that are appropriate for universities, but may work for other institutions," he said.

Other comments

In other comments on the draft policy, Strober said she had tracked the way a graduate student would use the grievance procedure to resolve a sexual harassment allegation.

The procedure calls first for the student to discuss the problem with the alleged harasser, she said, then with the department chair, followed by the dean of the school.

Strober said she found that "absolutely unacceptable," and in need of revision.

Another problem with the policy, she said, is that it does not adequately address the issue of how to prevent harassment. The policy says little about education and who would be responsible for that, she said.

Dean of Students Michael Jackson, speaking as a guest, told the senate that his unit would like to be involved in the educational process.

"With good language and educational programs," he said, "we can help students learn how to interpret advances and question advances."

Jackson said he personally dealt with a harassment case identical to the first one described in Karl's list of examples, and it was "devastating" to the student.

A specific interpretation of the Fundamental Standard might be developed for students, he suggested, to replace cumbersome grievance procedures.

Rhode, another senate guest, said more clarification was needed on how the university internally would use information offered by victims.

She said she understood the need for balance on the confidentiality issue, but doubted that the statement "every effort will be made to protect confidentiality prior to the filing of charges" was sufficient. It does not explain what the efforts will be, she said.

The university cannot control how external agencies might use information, Rhode said, but "it can control its own internal use and tell complainants what it plans to do."

She said that many victims are not willing to come forward with a particular charge, but are "willing to have something recorded so that, if a pattern develops, later on they may come forward."

Rhode echoed others who were concerned about references in the document to eight separate policies and grievance procedures, which are "creating a lot of hoops for people to jump through." This further victimizes the victim, she said.

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