The Issue Of Sex And Sexual Harassment Essay

The Issue Of Sex And Sexual Harassment Essay

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DOE is suggesting that universities must regulate nonconsensual sex on the theory that being cajoled, conned and bullied—even if not forced or threatened—into having sex that one does not want lessens one’s educational experience. Title IX affords a woman the same protection in school that Title VII affords her in the workplace. The Supreme Court has made clear that schools can be liable for peer-on-peer sexual harassment if they are “deliberate[ly] indifferen[t] to known acts of harassment.” DOE’s “Dear Colleague” letter encourages schools not to remain ignorant of behavior, the existence of which might constitute a hostile environment. It requires schools to develop adequate procedures for reporting, investigating and penalizing sexual misconduct.
The EEOC guidelines drafted for use in employment cases, but applicable to educational settings as well, define harassment as “conduct [that] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” Being badgered into sex that one does not want can unreasonably interfere with an individual’s school performance. Women who have been bullied into sex may be reasonably offended at the prospect of having to go to class, or debate practice, or sit at lunch with men who took advantage of them at a party, or did not respect them enough to ask if they wanted to keep going, or just hovered over them, pawing, pursuing their own desires without any regard for women’s disinterest or discontent. All of that kind of behavior can create an intimidating and offensive environment, one that it is not conducive to learning or advancement.
Whether behavior is offensive enough to co...


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...ble. Based on the evidence presented, a finder of fact might well have been convinced that the complainant did indicate sufficient willingness to keep going. The real problem in this case is that the credibility finding was so crucial and so close. That is going to be a recurring and significant problem, but it is not a problem of gender bias. Nor is it a violation of Title IX to allow tribunals to find for the complainant in close cases. The disciplined will far more likely be men than women, but that is because women are far more likely to feel violated. Indeed, the fact women are so much more likely to be hurt indicates that schools must act or they will be discriminating against women, “Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination.”

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