Obama Administration Attacks ‘Reasonableness’ and ‘Common Sense’ in Sex Harassment Investigations

The Supreme Court has repeatedly said that not all sexual flirtation or interaction constitutes sexual harassment, and that whether conduct is bad enough to amount to harassment “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Thus, reasonableness is part of the legal standard.

But the Education Department’s Office for Civil Rights (OCR), which has taken a radical leftward turn during the Obama administration, has now attacked that reasonableness standard. In a September 9 letter to Frostburg State University finding its sexual harassment policy in violation of the federal gender-equity law Title IX, OCR Region III attorney Beth Gellman-Beer wrote:

The Sexual Harassment Policy inappropriately stated that “in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community.” This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.

This letter has been criticized by education reporters for ignoring the law and attacking common sense. Reason magazine’s Robby Soave writes that “In holding ‘common sense,’ ‘reason,’ and ‘reasonable persons’ in contempt, OCR is effectively saying that colleges should base their decisions on the perspective of an unreasonable person.”

This letter’s extreme position is at odds with OCR’s past position when I worked there in its national headquarters. But it reflects the position of left-wing women’s groups whose staff frequently end up working for the Office for Civil Rights and the Civil Rights Division under Democratic Presidents. In court briefs, these groups have argued that women should be able to sue over sexual discussions or relationships among co-workers that only an unreasonable person would view as sexual harassment. For example, in the Supreme Court case of Harris v. Forklift Systems (1993), the National Women’s Law Center, “joined by the Women's Legal Defense Fund, demanded that women be allowed to sue employers for sexual remarks by co-workers even if no ‘reasonable woman’ would find the remarks offensive. This demand was so extreme that it was rejected by the Supreme Court and condemned as biased by the Legal Times.”  In 2001, the Supreme Court overturned a ruling against the Clark County School District, ruling that a “reasonable person” could not “have believed that [a] single incident” of offensive remarks amounted to harassment.

As the Daily Caller’s Blake Neff notes, it is odd for OCR to assert that

a “reasonable person’s” idea of sexual harassment is too strict for a school to receive federal funds. It’s hard to imagine a lower standard for a school to use, other than one relying on the opinions of an unreasonable person.

OCR’s interpretation seems to be at odds with the Supreme Court. In Harris v. Forklift Systems, decided in 1993, the court itself used a “reasonable person” standard to decide whether sexual harassment occurred. Other court rulings have used the same standard, and the Equal Employment Opportunity Commission, responsible for policing workplace discrimination, has followed them in crafting its sexual harassment guidance.

OCR’s aggressive definition of sexual harassment is a byproduct of the Obama Administration’s 2011 “Dear Colleague” letter, which radically overhauled federal Title IX policy by requiring schools to police sexual misconduct at a low standard of evidence, with extremely severe consequences (such as a loss of federal funds) threatened if they did not obey.

In the Washington Examiner, Ashe Schow describes other oddities in OCR’s letter, such as how it held the college liable for failing to go against the wishes of a complainant, who did not even want an investigation. As she notes,

The Supreme Court used the reasonable person standard in Harris v. Forklift Systems, and the 11th Circuit determined the standard to be valid in Watkins v. Bowden. But for OCR, it's a violation of Title IX.

Since this letter is not signed by a national civil-rights official, but only a regional official, it is likely that the Obama administration realized that its extreme position might produce a backlash, and wanted plausible deniability if that occurred (so that it could claim it was just the position of a regional office, not OCR’s national headquarters).  It has done that before.  In 2013, the Obama administration demanded that the University of Montana impose a sweeping campus speech code that would have banned all “unwelcome” speech about sexual issues as “sexual harassment,” even if only a hypersensitive person would have objected (like a student offended by a professor discussing AIDS). Education writers like Joanne Jacobs said this rule would effectively brand every student a sexual harasser. It made these demands in a letter from a political appointee in the Justice Department and the regional head of the Office for Civil Rights.

OCR backed away from this demand after criticism from people like Sen. John McCain (R-AZ), civil liberties groups like the Student Press Law Center and the Foundation for Individual Rights in Education, and syndicated columnists and op-ed writers.

However, in 2016, after that furor had subsided, a political appointee in the Obama Justice Department made demands to the University of New Mexico that were similar to the demands for censorship the Obama administration earlier made to the University of Montana.

During the Obama administration, the Office for Civil Rights has also disregarded federal court rulings by telling colleges to regulate even off-campus speech and conduct. That contributed to a bizarre investigation of Prof. Laura Kipnis. She was subjected to a lengthy harassment and retaliation investigation over an essay she wrote in the Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name). After months of investigation, she was finally found not guilty.

Under the Obama administration, civil-rights officials have recently grown bolder in pressuring institutions to restrict constitutionally-protected speech.  The Equal Employment Opportunity Commission recently overturned the dismissal of a harassment complaint by a black postal employee arguing that a co-worker’s repeated wearing of the Gadsden flag was racial harassment, effectively ignoring the “severe or pervasive” requirement for harassment claims mandated by the Supreme Court in cases like Clark County School District v. Breeden (2002), and First Amendment rulings limiting racial harassment lawsuits such as Rodriguez v. Maricopa Community College (2010).

Civil-rights officials may have even more muscle to impose such speech restrictions in the future, if they receive proposed budget increases. Liberal senators and the Obama administration have proposed increasing the budget of the Office for Civil Rights by nearly 30%. And Hillary Clinton “has advocated further increasing OCR’s budget.”