Nobody sleeps through a Brazilian (er, so I’m told), so let’s change the question. What if a creepy law professor wrote a dirty exam question about a customer being inappropriately touched while sleeping through a Brazilian wax job, could his law students claim that answering the question is sexual harassment? Read on. It’s all true. And a little snow flakey. I hate that term, by the way.
Well, a Howard University Law Professor who teaches Agency Law included a question on an exam with a fact pattern involving a customer who slept through (what I am advised) is a painful, hair removal procedure and, upon waking, believed she (he?) had experienced an inappropriate touching. Perhaps something Cosby-ish slipped into the herbal tea? (I made that up. It’s not in the exam question. But who sleeps through this horrific process?? Also, law students cannot add facts when answering exam questions. Law school cramped my creative style. A lot.)
Agency Law concerns itself with such questions as when employers are liable to third parties for the misconduct of their employees. I’ve oversimplified the breadth of the body of law, but here, the exam question centered on whether the salon owner could be liable for the alleged acts of the aesthetician who performed the Brazilian—the complete and violent deforestation of one’s undercarriage.
Two law students complained that after the exam, the professor asked the class to discuss the question, a teaching technique the professor used during the semester to gauge the progress of the class. During that exercise, one female volunteered that the customer simply could not have slept through the procedure, and when the professor asked her to explain her answer, she declined. He then moved on to another volunteer. I would love to have been a fly on the wall in this class. We didn’t have these kinds of exercises in law school. Didn’t have these kinds of exam questions, either.
Two students filed complaints against the professor under Title IX alleging sexual harassment and gender based harassment. Educational institutions have their own set of rules under Title IX, whereas private employers are governed by Title VII of the Civil Rights Act of 1964 and state law. Their definitions of sexual harassment are functionally identical, insofar as the severity or pervasiveness of the conduct required to trigger liability.
The Foundation for Individual Rights in Education (“FIRE”—the irony in this acronym!) got in involved on the professor’s behalf but could not prevent the University from finding that he had committed sexual harassment, placing a letter of reprimand in his file, ordering him to attend sensitivity training, and requiring that he submit future exam questions for review. In a letter asking Howard University to rescind its sanctions, FIRE summarized the reasons the University’s Deputy Title IX Coordinator Candi Smiley (a/k/a “Deputy Smiley”) found the professor had committed sexual harassment:
The first factor Smiley relied on was that Robinson used the word “genital” in Question 5. Second, the complainants felt that the hypothetical scenario was crafted in order to prompt them to reveal personal details about themselves. Third, the complainants believed their revelations had a negative impact on them. Fourth, Smiley believed posing the scenario described in Question 5 was not necessary to teach the subject at hand.
Well, this really is an unfortunate result, not to mention the wrong one. For conduct to constitute sexual harassment in the educational environment, it must have the purpose or effect of unreasonably interfering with a student’s educational right, privilege, advantage, or opportunity; or such conduct must be so pervasive or severe that it creates an intimidating, hostile, or offensive environment for learning and have no reasonable relationship to the subject matter of the relevant course of instruction.
A single exam question? The use of the word “genitals?” An allegation in the exam question of an unwanted touching? Asking for class volunteers to discuss the question? And no student grades depended on the participation? And I get it that these two suspected that the professor was using the class discussion to prompt them to reveal personal details which is a factor, but that’s a subjective belief (and they may be right) that has to withstand reasonableness. Folks, this is just not the stuff of harassment. And as far as the use of the scenario to teach Agency Law, whether it was necessary to teach the subject is not for “Deputy Smiley” to decide. She sounds like no fun anyway. Probably wears a plastic badge. And the actual exam question included informed consent by the customer, some sort of agreement that may have been a release and/or a waiver, deposition testimony exculpating the aesthetician—all which made the question fairly sophisticated for law students to sort through. And Agency Law is a subject that most practicing lawyers and judges misunderstand their entire careers.
Now I’m not defending Professor Huxtable on this one. In this milieu of hyper scrutiny, building a law school exam question, even a difficult one, based on the removal of every follicle of pubic hair from the navel to the buttocks seems, well… risky. As employment lawyers, we counsel clients toward a zero-risk posture, but we defend silly claims vigorously. Yes, we can walk and chew gum at the same time. A better response, if possible, would have been to evaluate the claims as having no merit but admonish the professor in private to use better judgment and avoid potentially salacious fact patterns on law school exams.
The Basics: Harassment in the workplace is about risk avoidance with a view toward protecting all employees from unwanted, intimidating misbehavior. While one-off missteps don’t typically meet the legal definition of sexual harassment, it’s important to train managers and employees to follow a well-drafted, up to date workplace harassment policy to its letter. In the educational environment, academic autonomy needn’t overly complicate these issues.
But look, stand up for your company, too. Howard University has set a bad precedent here. It has agreed that two thin-skinned students can lower the bar for sex harassment under Title IX under its own policy. It will regret that. Private employers face similar pitfalls. Striking the right balance between protecting your workforce, by not tolerating harassment even a little, while understanding that not all policy violations rise to the level of actionable sex harassment… well, that means you have to walk and chew gum at the same time too. I said gum, not wax.