The Undergraduate Student Senate Passed unanimously a new Harassment Policy Resolution drafted by Matthew Blackmon on February 14th, 2011. The resolution in question was 3 pages long and identified various holes in the current harassment policy, including no provisions to include several other federally protected status’s beyond racial, ethnic, and sexual as categories for discriminatory harassments. The resolution further takes reference to harassment as interpreted by the Supreme Court in the case Davis V. Monroe County Bd of Education. This case importantly drew the line between free speech and harassment which was the reasoning behind ECU’s yellow rating placed on our harassment policy by the Foundation for Individuals Rights in Education (FIRE).
The resolution makes changes to the harassment code by defining discrimination and harassment and rewording the language of the current policy to be more generalized in terms of discrimination, but more specific in terms of what constitutes harassment.
This bill is important because it alerts others to the issue of how to define harassment in academia where the rules are different than the workplace, which is ECU’s current policy model. Education requires more emphasis on free speech, which can be controversial, but not harassment in an institution of higher learning.
While there hasn’t been a problem with it yet, proactive measures to reduce the University’s liability in the future should be appreciated.
The text of the Resolution is as follows:
WHEREAS our current harassment policies on campus are the Racial and Ethnic Harassment Policy and the Sexual harassment Policy, AND
WHEREAS the Racial and Ethnic Harassment Policy fails to include other federally protected Statuses, AND
WHEREAS individuals can be singled out and harassed for other reasons other than racial, ethnic, or sexual, AND
WHEREAS our current Racial and Ethnic Harassment Policy states that “the university recognizes that the free and unfettered interchange of competing views is essential to the institution’s educational mission, and that the peoples’ right to express opinions is guaranteed by the United States Constitution”, AND
WHEREAS our current definitions of racial and/or ethnic harassment are as follows:
1) Singling out people because of their race or ethnic affiliation and subjecting them to unequal or unfair treatment.
2) Harming, attempting to harm, or threatening to harm people because of their race and/or ethnic affiliation, AND
WHEREAS the United States through the Congress and Supreme Court have bounded discriminatory harassment as the following:
Physical and verbal conduct that
(a) Discriminatory defined as being directed at an individual because of the individual’s age, ancestry, color, disability or handicap, national origin, race, religious creed, sex, sexual orientation, gender identity or veteran status; and
(b) harassment as being sufficiently severe or pervasive so as to substantially interfere with the individual’s employment, education or access to University programs, activities and opportunities.
WHEREAS DAVIS V. MONROE COUNTY BD. OF ED. (97-843) 526 U.S. 629 defined that harassment must be “sufficiently severe or pervasive” and is broader in protection of our First Amendment rights to expression that may be unpopular but nevertheless protected than our currently defined harassment policy, AND
WHEREAS the University’s harassment policy retains a narrower scope defining only race, ethnicity, and sex as grounds for harassment, while there are many more grounds for discrimination defined by law established by but not limiting to the following:
• Age Discrimination Act of 1975 (age)
• Title VI of the Civil Rights Act of 1964 (ancestry, color, national origin, race)
• Title IX of the Education Amendments of 1972 (sex, gender identity, sexual orientation)
• Section 504 of the Rehabilitation Act of 1973 (disability)
• Title II of the Americans with Disabilities Act of 1990 (disability)
• Vietnam Era Veterans Readjustment Assistance Act of 1974 (Veteran’s Status)
WHEREAS definition offered previously in light of US law defines harassment more clearly as against an identifiable individual or groups of individuals, rather than a more abstract collection (i.e. an entire race or creed) AND
WHEREAS our currently defined policy does not clearly state a severity and pervasiveness requirement in light of the Supreme Court’s interpretation of harassment, AND
WHEREAS harassing conduct must not only be evaluated in from the victim’s perspective, it must also be evaluated from the perspective of a “reasonable person” in the victim’s position, thereby enabling a subjective and objective assessment of the conduct in question, AND
WHEREAS the subjective and objective assessment is a position maintained by WHEREAS DAVIS V. MONROE COUNTY BD. OF ED. (97-843) 526 U.S. 629, AND
WHEREAS ECU’s sexual harassment policies originated in the Equal Employment Opportunity Commission’s guidelines regarding sexual harassment, which has a focus on work performance and working environment, AND
WHEREAS our current policies, although they serve a proper business function, are not well suited in the educational setting which restricted constitutionally protected expression rights, AND
WHEREAS a number of universities have harassment policies that are more in lined with Federal Level regulation, including the University of Virginia, AND
WHEREAS East Carolina University is a public institution, and not a private workplace, accepts Federal Funding, and
WHEREAS our Public Status entitles all members of the University Community to guaranteed First Amendment Rights outlined in the Constitution, and
WHEREAS our current policy can lead to students being prosecuted over protected forms of speech, while leaving legitimate and illegal forms of harassment undefined in university policy, THEREFORE
BE IT RESOLVED that the Racial and Ethnic Harassment Policy be amended and renamed to “Discriminatory Harassment Policy”, AND
BE IT FURTHER RESOLVED that Section I Rationale be amended as follows: “The faculty, staff, administration, and students of East Carolina University maintain that it is important to create an atmosphere in which instances discriminatory harassment are discouraged. Well-publicized policies and procedures such as these will help to create an atmosphere in which individuals who believe that they are the victims of discriminatory harassment are assured that their grievances will be dealt with in a timely, confidential, fair, and effective manner. Toward this end, all members of the university community should understand that discriminatory harassment violates university policy and will not be condoned. Members of the university community are encouraged to express freely, responsibly, and in an orderly way their opinions and feelings about any problem or complaint of harassment prohibited under these policies. Any act by a university employee or student of reprisal, interference, restraint, penalty, discrimination, coercion, or harassment against a student or an employee for using these policies responsibly interferes with free expression and openness and violates this policy. Accordingly, members of the university community are prohibited from acts of reprisal against those who bring charges or are involved as witnesses or otherwise try to responsibly use this policy.“ AND
BE IT FURTHER RESOLVED that Section II be and amended and renamed to “Discriminatory Harassment Policy”, AND
BE IT FURTHER RESOLVED that Section II subsection B be amended as follows:
Definitions. The following constitute discriminatory harassment:
1. Physical and verbal conduct that is directed at an individual because of the individual’s age, ancestry, color, disability or handicap, national origin, race, religious creed, sex (including Pregnancy), sexual orientation, gender identity or veteran status; and
2. Unwelcome conduct directed against a person based on one or more of that person’s protected characteristics or statuses, which conduct is so severe or pervasive that it, interferes with an individual’s employment, academic performance or participation in University programs or activities, and creates a working, learning, program or activity environment that a reasonable person would find intimidating, hostile or offensive.
Be it further resolved that Section III subsection C be amended as follows:
Policy. It is the responsibility of members of the university community to strive to create an environment free of discriminatory harassment.
• C-1. It is against the policies of East Carolina University for its employees or students to single out and discriminate employees or students of the university and subject them to unequal or unfair treatment.
• C-2. It is against the policies of East Carolina University for its employees or students to discriminate employees or students of the university or visitors and subject them to conduct defined as harassment.
BE IT FURTHER RESOLVED that our Sexual Harassment Policy be dropped in favor of our Discriminatory Harassment Policy.