Preventing and Addressing Retaliation Resulting from Sexual Harassment in Academia (2023)
Chapter: Introduction
Introduction
Over the past several years, academia has been increasingly called upon to address the prevalence of sexual harassment1 in its higher education institutions (see, e.g., NASEM, 2018). As institutions respond to this call, a major—and persistent—obstacle in preventing sexual harassment is the issue of retaliation.2 Research has documented that many individuals who have sought to address sexual harassment, through reporting or bystander intervention, have experienced retaliation from those accused of harassing them. Retaliation can take myriad forms, including the following:
- job termination
- forced resignation
- verbal and physical aggression
- failed grades
- exclusion from activities
- removal of academic credit or authorship
- withholding of career-based opportunities
- reputational loss
- further sexual harassment
Pursuant to Title IX of the Education Amendments Act (20 U.S.C. §§1861-1688), Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§20002-2000e17, as amended), and various state and local laws, retaliation in academic institutions is unlawful. Even so, it can be hard to identify and prove and, in turn, to hold someone responsible. Institutional policies that only reflect the existing legal framework are subject to the same limitations of the law, which hamper efforts both to hold individuals accountable for their behavior and to promote a culture of reporting bad behavior. Such policies typically achieve institutional compliance with the law, but they may not address the lived experiences and fears of retaliation—broadly understood—that exist in academia. The National Academies of Sciences, Engineering, and Medicine 2018 report Sexual Harassment of
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1 The 2018 National Academies report defines sexual harassment as consisting of three types of behavior: “gender harassment (sexist hostility and crude behavior), unwanted sexual attention (unwelcome verbal or physical sexual advances), and sexual coercion (when favorable professional or educational treatment is conditioned on sexual activity).”
2 The legal definition of retaliation is described as an adverse, or negative, action or actions taken against someone because they opposed discrimination and harassment; this is further described in detail in the section “How does the Law Address Retaliation?”. For the purposes of this paper, we focus on retaliation that results from opposition to sexual harassment.
Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine challenges institutions to move beyond legal compliance when addressing sexual harassment. A similar mindset of demonstrating institutional courage and moving beyond legal compliance can be applied in responding to retaliation. Furthermore, as the National Academies report recommends, institutions should develop approaches to protect those who have reported sexual harassment from experiencing or fearing retaliation, which could be done by utilizing prevention efforts that strive to minimize retaliation in the first place.
As members of the Remediation Working Group in Higher Education of the National Academies’ Action Collaborative on Preventing and Addressing Sexual Harassment, we sought to understand the full implications of retaliation in higher education and develop a paper that provides relevant information for institutions to go beyond mere compliance in their anti-retaliation policies and practices. The Action Collaborative is a group of over 50 academic research institutions that are working toward targeted, collective action on addressing and preventing sexual harassment across all disciplines and among all people in higher education. The Collaborative includes four working groups (Prevention, Response, Remediation, and Evaluation) that identify topics in need of research, gather information, and publish resources for the higher education community.
Using a foundation of the current legal framework that protects against retaliation, this paper illustrates how those legal protections can fall short when various types of retaliatory actions occur in academia. The paper provides illustrative examples and proposes strategies for addressing retaliation, including a detailed description of the individualized anti-retaliation plans some institutions have begun to develop and adopt. Informed by our experiences as a sexual harassment prevention and response practitioner, faculty member, Title IX coordinator, and institutional leaders, we explore how institutions can creatively address retaliation with broader policies—policies that expand on and hone institutions’ current anti-retaliation practices, engender effective communication of their response to various forms of retaliation, and support effective anti-retaliation plans.
As this is an area of growth and innovation for higher education institutions, a call for action at the end of the paper highlights next steps, including relevant questions researchers can explore and anti-retaliation policies and practices institutions can develop. While this paper does not provide legal advice, and while we recognize that many (if not all) institutions have standing anti-retaliation policies, this paper is written to inspire our fellow university leaders, practitioners addressing sexual harassment, and others involved in sexual harassment cases (including those who experience sexual harassment and observers of sexual harassment) to consider new (and potentially more successful) ways of addressing and preventing retaliation. Ultimately, we hope that improvements to how higher education institutions prevent and address retaliation will create a supportive culture where reporting sexual harassment is not only encouraged, but also where targets of such conduct are confident that raising these concerns will improve—not worsen—their situation and climate.
