Tuesday, February 7, 2006

A Matter of Sexual Harassment Pedagogy

Kaimipono Wegner has an interesting post over at Concurring Opinions entitled "Teaching Disturbing Law" concerning how to properly teach difficult sexual harassment cases in the law school setting.

He relates how the issue came to his attention this way:

A friend of mine who is a relatively new professor is teaching some material that includes cases relating to sexual harrassment law. She is mulling over how best to present the material, and she asked me:

I was just reading again over some of the cases assigned to the students. One of the cases in particular reports graphic and disturbing acts (gang rapes, etc.) and language (repeated use of the word "fuck") as part of the factual summary and the discussion of the issues. It occurred to me that I might warn the students about the potentially offensive language and graphic description of sexual acts. What do you think? Should I say anything?

Kaimi's considers the pros and cons of different approaches and concludes:

On the one hand, perhaps the sensitive students would appreciate a warning. On the other hand, for many students, highlighting the issue could have the opposite effect, drawing more attention to lurid details than they deserve. I told her that in my opinion, I would lean towards a short warning myself (given the potential concerns of the more sensitive students), but that I thought she would also be fine if she didn't warn, as long as she treated the material carefully.

I figure as a number of us teach sexual harassment law on a yearly basis, we would be in a unique position to lend advice to Kaimi and his friend on how to deal with this issue of pedagogy.  He, as well as I, would like to get some input from experienced professors (as well as students) on how they would approach these difficult sexual harassment cases.




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I've been teaching sexual harassment cases as well as some difficult family law cases for years, and I haven't had the sort of difficulties with the class you might have expected. Perhaps it's like teaching anatomy in medical school. The students understand they will have to deal with this sort of thing in the real world of their profession, and they're ready to try to deal with it as professionals. If you spend too much effort warning them, it might come across as patronizing. A lot of students are clearly uncomfortable talking about the cases, and they often grope for a polite way to describe the facts, but they always survive. On the other hand, I don't recite or require anyone to recite the profanity, and there are plenty of ways to refer indirectly or very technically to the really gross things (I assume everyone read that part of the case). In twenty years, haven't had a complaint from a student yet.

Posted by: Richard Carlson | Feb 7, 2006 8:03:43 AM

I think this is a difficult issue not just in sexual harassment cases, but in many other cases in Employment Discrimination. A number of race discrimination cases have nasty facts (and repeated use of the "N word"), for example. I personally won't say that word in class, and for that and for cases involving especially gross sexual or other harassing behavior, I usually just say "you can see the details of what happened in the book."

I don't give warnings about possibly offensive material, however. While I don't think it would be a horrible mistake to do so, it strikes me as a bit patronizing: students routinely see lots of really bad things happen to people and bad behavior in cases they read. I do give warnings when we get to issues like affirmative action and discrimiation on the basis of sexual orientation that students should be able to voice their opinions without fears of provoking hostile reactions.

I think the most important thing in teaching this material is to convey to your students that, while you will gladly entertain arguments from various perspectives about what the legal rules should be, that you personally disapprove of discrimination and harassment, and take it seriously as a problem.

Posted by: Joseph Slater | Feb 7, 2006 8:27:30 AM

For me, this is a similar question to how do you teach about rape, domestic violence, acts of racism, acts of discrimination based on sexual orientation--if the realities of what happens are covered over, then we risk not dealing with realities that are important to address.

As to how to teach the subjects, I tend to do two things. One, before the material is read, I give my students warning, in the vein of "this may be difficult for some of you and I don't want you to be blindsided." Second, when I teach the material, I often say something like "the statistics tell us that this is in the room; that one of you may have a link to this subject. It is important that we discuss this subject with that in mind, and as if the client were in the room." I began doing both these things when many years ago I taught Torts for a few semesters, and covered the breast impant litigation. You could have heard a pin drop in the class, and the discussion was respectful and analytical. Every year, within days or weeks, some student would come to me with either her own story or that of someone he or she knew, and questions, and it always reconfirmed for me how important it was to discuss a difficult subject and that the students could handle it if they were asked to be professionals.


Posted by: Nancy E. Dowd | Feb 7, 2006 8:53:44 AM

I've been teaching Employ. Law & Employ. Discrim. many years, and almost every year I feel comfortable enough with my students (and they with each other) to discuss our actual experiences with sexual harassment (when I ask students, I always pose the question as whether they heard about any situation). We focus not so much on what happened but how it made us feel in the workplace and what we felt we could or could not do about it (and why). I contribute own stories from when I worked as a young secretary in the early 70s in a major corporation and from my mother's experiences in the 60s as a divorced nonprofessional working woman.

Posted by: Vicki Limas | Feb 7, 2006 10:57:08 AM

I have had the same experiences as Nancy but in the sexual harassment context. Nearly every year students come up after class and say, "Oh, do you think this thing that happened to me was sexual harassment?" So, how do I handle class discussion? (1) I comment on but shrug off the fact that we will be reading (and discussing) so many bad words in the course of Workplace Law (not just in sex harassment cases); (2) When we get to sex harassment, I tell them that the chances are very high that someone in the room has felt sexually harassed, and that the chances are fairly high that someone in the room has been accused of sexual harassment, so we need to be careful of one another's feelings and sensitivities.; (3) I tell them that I will not be calling on anyone to recite the facts of the cases, because the random, surprise aspect of our so-called Socratic method may be too traumatizing for someone who has already had some painful memories triggered. On the other hand I do think that a professional should be able to deal with these facts, so I encourage volunteers and frank discussion -- and never have any trouble getting it.

In my classes there are many conservative, religious men (mainly Church of Jesus Christ, Latter Day Saints) who are often more offended by the situations reported in the cases than are the women in the class. They argue that they would find hostile a work environment filled with girlie pictures, crude jokes and the like.

One year our in-school moot court competition turned on sexual harassment, and some of the conservative men objected, saying that they should not have to recite those facts as part of a school assignment. I (and the College administration) rejoined that part of being a lawyer is dealing with situations and people one finds distasteful. Also, this very "it's too awful to talk about" attitude silences the victims and gives power and license to the perpetrators.

Posted by: Monique C. Lillard | Feb 7, 2006 10:59:10 AM

Prof. Lillard's point about objections from religious conservatives is an important one, I think. An interesting (and, I think, little-known) example of this comes in Lambert v. Condor Manufacturing, 768 F. Supp. 600 (E.D. Mich. 1991). Lambert was a religious accommodation case, not a sexual harassment case; Lambert claimed that his religion barred him from working around sexually themed materials, and asked the employer to order its employees to take down such materials that they've posted. The court held that the employer could be found to have had a duty to accommodate Lambert's objections. I think the court was too quick in dismissing the First Amendment objection to this theory, but that of course is an issue that arises in sexual and religious harassment cases as well. (See http://www.law.ucla.edu/volokh/harass/).

Interestingly, the logic of Lambert potentially extends even further than the logic of hostile environment harassment law. Hostile environment harassment law at least limits itself to imposing liability based on speech that's severe or pervasive enough to create an offensive environment based on race, religion, sex, and the like for the plaintiff and for a reasonable person. The severity/pervasiveness and reasonable person requirements at least impose some constraints on its scope. But for a religious accommodation claim, all that's necessary is to show that the employee sincerely (reasonably or not) believes that working around the speech offends his own religious views, and that the employer can accommodate this inexpensively (not unlikely, since banning coworkers from saying things is often inexpensive). Thus, an employee could potentially object not just to pornography, but to any pictures that show people in "immodest" poses (e.g., a picture of a coworker's wife in a bikini), any pictures that are supposedly blasphemous, any materials that use God's name in vain, and the like.


Posted by: Eugene Volokh | Feb 7, 2006 11:50:20 AM

An interesting point [by Eugene Volokh], but I don't agree with this:

But for a religious accommodation claim, all that's necessary is to show that the employee sincerely (reasonably or not) believes that working around the speech offends his own religious views, and that the employer can accommodate this inexpensively (not unlikely, since banning coworkers from saying things is often inexpensive).

Courts have held that employers may take into account more than expense as a form of hardship in the "undue hardship" inquiry, and conflicts with other workers' rights (and hence workplace tensions) is a cognizable form of hardship. That, after all, is the message of Hardison: an employer need not violate Smith's rights in the service of accommodating Jones. I don't think that the religious accommodation burden -- as currently written and interpreted -- sweeps any more broadly than the hostile work environment requirement, even though, as Eugene notes, the standard is the subjective belief of the employee rather than the objective perspective of the "reasonable person."

That said, there is a bill currently in Congress, the Workplace Religious Freedom Act (WRFA), which would expand the religious accommodation requirement, removing the "de minimis" test and -- importantly -- creating a list of factors to consider in assessing undue hardship. All of the factors on the list involve financial cost to the employer -- creating the risk that the courts might well start to ignore or give less weight to conflicts with the rights of co-workers. There was a hearing on the bill last November, at which I testified. If you're interested, it can be found here:



Posted by: Samuel A. Marcosson | Feb 7, 2006 2:33:04 PM

I am an attorney that teaches sexual harassment as part of a Personnel Law course for undergraduate management majors. I warn students that I will quote sexually-oriented (and racially-oriented)comments exactly. When quoting, I read the statements in a very monotone voice, acting very seriously. I seldom have any laughter or other reaction. Students take it seriously. I think students need to know exactly what happended to learn what is and is not harassment.

Posted by: Jim Frierson | Feb 9, 2006 1:09:23 PM

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