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Does the Intent of the Harasser Matter?
In cases of nonphysical harassment, the EEOC (and thus the DOE's OCR) instructs investigators to ascertain the nature, frequency, context, and intended target of the remarks. The guidelines set forth sample questions for investigation, including: Did the alleged respondent single out the complainant?; Did the complainant participate?; What was the relationship between the complainant and the respondent?; Were the remarks or visuals sexually explicit, demeaning, hostile and/or derogatory?
Intent v. Impact. Whether or not the person whose conduct is experienced as harassing intended harassment has generally been considered by most courts as not relevant to determining whether or not sexual harassment has occurred. In most cases it the effect of the conduct on the person who is on the receiving end and the characteristics of the conduct that determine if the conduct constitutes sexual harassment. Laws and court holdings have been very clear that, if a supervisor states to an employee "sleep with me or I will fire you" using a defense of "I was just joking" will not and has not been permitted. And, although this example is unnecessarily simple, it does illustrate how laws and the courts have looked at sexual harassment differently from other types of harassment. There has not been a requirement for a complainant to prove that the person engaging in the conduct intended to harass them.
Traditionally, courts have evaluated such conduct by whether a "reasonable person' would consider the conduct harassing, intimidating, and/or offensive. The 5th Circuit Court of Appeals stated in a case in 1988, "would a reasonable person in the same situation consider the conduct to be sufficiently severe and/or pervasive to alter the condition of the person's employment (academic experience) and create an abusive work environment (learning environment). However, the 9th Circuit Court of Appeals in the case Ellison v. Brady, 1991, found the above standard erroneous for several reasons and concluded that the harassing conduct must be evaluated from the perspective of the victim. The court observed that a "reasonable person" standard does not permit analysis of the differing perspectives of men and women. The court noted that "conduct that many men consider unobjectionable may offend many women". Thus the court stated "We hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe and pervasive to alter the conditions of employment." In attempting to determine whether or not there has been a violation of Title IX, in California it is always necessary to apply that standard......
On the issue of
the Title IX Officer's (or others) duty to investigate:
Contact Rita Walker , Title IX Officer: 105 Kerr Hall . email: firstname.lastname@example.org . phone 831.459.2462 * 831.459.4825