In the general parlance, the term "sexual harassment" has become a catch-all phrase for any type of unwelcome sexual conduct. But the term also has certain legal implications, which have been addressed primarily in the employment context.
These legal questions have focused on the circumstances in which employers can be held responsible for the sexually harassing conduct of their supervisors, managers, employees, and even third parties whose contact was occasioned by the employer's business.
An important goal of these legal questions has been to determine what types of conduct constitute "sexual harassment." The pronouncements of the courts concerning the sphere of acceptable conduct are relevant to the topics contained in this booklet; however, it is best to understand the suggestions set forth below as guidelines concerning the broader topic of "sexual misconduct" rather than "sexual harassment."
For educators, sexual misconduct has two distinct contexts: the first pertains to interaction with colleagues, while the second concerns interaction with students. The guidelines which follow will first briefly focus on the realm of appropriate conduct between colleagues, and will then focus on the more complicated parameters of appropriate conduct between teachers and students.
Conduct Between Colleagues
Sexual misconduct involves any type of unwelcome sexual conduct.
In the appropriate context, it is not improper for colleagues to engage in sexual conversation, flirtation, or even to carry on a sexual relationship. The conversation, flirtation or physical relationship, however, must be consensual. It is improper for one to engage in any type of sexual conduct that causes a colleague to feel intimidated, embarrassed or uncomfortable. These are the considerations toward which the concept of "unwelcomeness" is focused.
Sexual Conduct is a broad term which includes everything from sexual comments, jokes and innuendo to physical contact and the display of sexually suggestive or explicit materials.
The best advice is not to engage in any sexually suggestive conduct in the school environment. However, if you choose to engage in such conduct, be sure the conduct is "welcome," i.e., that it is mutually agreeable to the other person and does not make that person feel intimidated, embarrassed or uncomfortable.
It is important to realize that comfort levels are subjective, and you therefore take a very substantial risk when engaging in any sexually suggestive or explicit conduct in the school environment. You must be sensitive to the reactions of those around you, and to appreciate the impact that relative seniority has on another's comfort levels. A junior employee, such as a student teacher, is more likely to feel intimidated by suggestive conduct from a senior employee, such as a teacher or principal, because they may feel that their continued or future employment is conditioned on being receptive or accepting such conduct.
In the sexual harassment arena there are two distinct types of harassment: Quid Pro Quo Harassment and Hostile Environment Harassment.
- Quid Pro Quo Harassment - involves the conditioning of concrete employment benefits on sexual favors.
- Hostile Environment Harassment - refers to a course of conduct sufficiently severe or pervasive to alter the conditions of another's employment by creating a hostile, offensive or intimidating working environment.
Here, too, the legal definitions provide guidance. Quid Pro Quo Harassment is self-explanatory and less common. Hostile Environment Harassment encompasses the wide range of misconduct addressed in this booklet. A single dirty joke does not legally constitute sexual harassment; the legal standard generally focuses on a course of conduct sufficiently pervasive to create a hostile environment, although a single occurrence of particularly egregious conduct can be enough. Further, harassing conduct need not be directed at a particular individual to be illegal. A group of people telling dirty jokes in the presence of one or more others who find such jokes offensive or intimidating can be enough to constitute sexual harassment. Why test the limits? Don't put yourself at risk and don't threaten the comfort and peace of mind of your colleagues.
Maintaining a school that is free of sexual misconduct is everyone's responsibility. If someone has subjected you to conduct that you find offensive or discomforting, you have a responsibility to let that person know that you want the conduct to stop. People are not mind readers, and not everyone is sensitive to the subtle, or not so subtle, indications that their conduct has become unacceptable. By letting a person know that you wish the conduct to stop, you avoid misunderstandings and give them notice that if the unacceptable conduct continues, you may resort to more severe measures to make it stop.
Conduct Between Teachers and Students
An increasingly common cause for the termination of a teacher's employment is an accusation of sexual misconduct by a student.
The focus in such situations is far different from that of sexual misconduct between peers; the focus is not on consent or unwelcomeness, but rather, appropriateness. Once accused, your prior conduct in interacting with your accuser will be analyzed and your motivations will be second guessed.
Many allegations of sexual misconduct involve verbal comments about a student's clothes, hair or other physical attributes. You should not make any comments about how attractive a student looks. Seemingly innocent comments such as "your hair looks lovely today" or "what pretty eyes you have" can later be considered as flirtation. Remember that you are the responsible adult and it is not appropriate for you to flirt with students even if they are flirting with you. While it is to be expected that students discovering their sexuality may practice flirting on teachers, it is not appropriate for teachers to reciprocate.
You must exercise great care in making decisions regarding physical contact with a student. Many allegations of misconduct involve touching a student's knee or thigh, butt slapping in gym class, and shoulder massages. The student's age has much to do with the appropriateness of physical contact. In the primary grades, many teachers believe it is virtually impossible to avoid physical contact with students and that affection and nurturing are essential elements of a young child's learning environment.
As children grow older, however, physical contact becomes less appropriate. By the time a child is in middle school, physical contact, especially affectionate physical contact, will be viewed with suspicion. Hugging and holding that may once have been an accepted method for providing support and security in the academic environment becomes wholly inappropriate.
Special care must be taken if you teach pre-pubescent females because it is this group of students that most frequently makes allegations of sexual misconduct. During this phase of their development, young girls are going through physical and emotional changes with which they are often uncomfortable. Also during this period, many girls start wearing brassieres, and may have a tendency to view a touch to the back or shoulders as "sexual."
You should avoid the situations that most commonly result in allegations of sexual misconduct. Being repeatedly alone with a student or small group of students is a common scenario in misconduct cases. If you frequently meet alone with students, leave the door at least partially open. If you have a window to your office or the door is glass, leave blinds open so that others can see in. In many cases, conduct securing privacy is treated as an indicator of impropriety. Avoid such indicators by keeping your conduct highly visible.
You should avoid driving students home after school. Transportation is the responsibility of the student's parents and the school district. You should also exercise great care when engaging in any social activities with a student or students outside the school environment. If social activities are essential to your teaching process, be sure that no single student receives special treatment, and be certain that other adults are present during such social activities.
Sending students affectionate cards or gifts can also lead to allegations of impropriety, especially if you have a special relationship with the student who received the card or gift. If you engage in such practices, be sure the school administration is aware of your activities and be sure your activities are not focused on a single student. In addition, maintain professionalism when giving such cards or gifts - don't get too personal or familiar.
Finally, sexual contact with a student can subject you to criminal charges even if the student consents. Under California law, it is a crime to engage in any sexual contact with a person who is younger than 18 years of age.
Remember: if you believe any conduct on your part may be viewed as questionable, you should not engage in that conduct.
Below is a checklist of the points discussed.
- Don't flirt with students.
- Avoid physical contact with students in middle school or later. Exercise great care when engaging in physical contact with any student.
- Be especially sensitive when interacting with prepubescent females.
- Avoid the situations that most often lead to allegations of sexual misconduct:
- If you meet with students alone, try to ensure that the setting is not too private. Keep doors and blinds open.
- Don't drive students home after school.
- Be careful if socializing with students outside the school environment. If you do socialize with students, do so in a public setting and be sure that other adults are present.
- Use extreme caution when utilizing text messages, personal email accounts, and social media platforms, instant messaging services, and smartphone apps with students. Some of these may include (but are not limited to) Facebook, Twitter, Instagram, YouTube, Kik, WhatsApp, Snapchat, Tumblr, Periscope, Meerkat, and others. Remember that NOTHING is private online.
- If you meet with students alone, try to ensure that the setting is not too private. Keep doors and blinds open.
- Exercise caution in sending or giving a student cards or gifts.
- It is a crime to engage in sexual contact with a child younger than 18 years of age.
Allegations of Sexual Misconduct
Often times, the individual being accused of sexual misconduct is the last to find out. If you are approached by someone who wants to ask you questions, you have a right to inquire as to the purpose of the questioning. Ask them if they are conducting an investigation. If they are, ask them what and whom they are investigating. Ask them if they are seeking information that could result in disciplinary action against you.
If you are the subject of the investigation, or the investigation could result in disciplinary action against you, you are entitled to representation. Answer no questions. Immediately call TALB and explain that you are the subject of an investigation and that you are in need of assistance. It is important to understand that the TALB staff does not have an attorney/ client relationship with you. Therefore, it is best that you reveal no more information to the TALB staff than is necessary to reflect your need for assistance. Revealing the fact that you have been accused of or are being investigated for sexual misconduct is enough. Information you give to an attorney in confidence is protected information. The attorney cannot be compelled to testify against you regarding such protected information. Since union staff has no such privilege, TALB staff can be subpoenaed to appear at trial and testify against you concerning all information you revealed to them. Save your side of the story for your attorney!
The period following an allegation of sexual misconduct can be the worst time in a person's life. It can involve action and investigation by the Department of Social Services, the school district, and the police. The guidelines contained in this booklet can help you avoid such a tumultuous experience, and, if you ever are faced with an allegation of misconduct, they can help you preserve your reputation and your livelihood. The point of these guidelines is not to instill fear, but rather, to raise your level of consciousness by making you sensitive to a course of conduct that can leave you open to an allegation of sexual misconduct. Think ahead!
Sex and Drug Offenses
Whenever a certificated employee is charged with the commission of any specified sex or drug offense by complaint, information or indictment filed in court, the school board shall immediately place the employee upon compulsory leave of absence for a period of time extending not more than ten days after the entry of a judgment in the proceedings. A teacher's credential is immediately suspended for the same period of time. The time period may be extended by giving notice to the employee within ten days after the entry of the judgment that the employee will be dismissed at the end of 30 days from the date of the notice unless he/she demands a hearing. (44940, 44940.5).
Any employee placed upon compulsory leave shall continue to receive his/her regular salary only by furnishing suitable bond or other security acceptable to the governing board. If the charges are dismissed or the employee is acquitted, the district must reimburse the employee for the cost of the bond upon return to service in the district. If the employee does not furnish bond or other security, and the charges are dropped or the employee is acquitted, the district must pay full compensation to the employee upon return to service in the district.
Any notice of suspension and intention to dismiss must be in writing and be served upon the employee personally or by registered mail. A copy of the charges filed, containing the information required by section 11503 of the Government Code, together with a copy of the provisions of this article, shall be attached to the notice. (44936). Government Code section 11503 requires that the accusation be a written statement of the charges which shall set forth in ordinary and concise language the acts or omissions charged and the statutes and rules alleged to have been violated so that the teacher will be able to prepare a defense. (44941).