The federal government, embracing a broader definition of what constitutes sexual harassment, has sent a memo to universities that some First Amendment experts worry could criminalize inoffensive verbal expression on college campuses.
The memo, which was sent to the University of Montana on behalf of the Departments of Justice and Education, purports to correct Montana’s inadequate sexual assault prevention measures and criminal proceedings.
Montana’s existing policy defines sexual harassment as conduct that it is severe, pervasive or disruptive to a person’s work or education. But the federal government’s memo mandates that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’”
They key difference may lie with the word “any.”
The U.S. Equal Employment Opportunity Commission (EEOC) holds that illegal sexual harassment must be frequent, severe or part of a pattern that has created a hostile environment. Comments that aren’t seriously offensive do not rise to the level of harassment, according to the EEOC definition.
But the new memo instructs universities to disregard the standard of a reasonable person when determining whether sexual harassment has occurred. Previously, authorities would consider whether a reasonable person of the same gender as the accuser would have felt harassed under the same circumstances. The federal memo explicitly rejects this standard for universities in determining whether sexual harassment has occurred.
It’s a shockingly low burden of proof for demonstrating sexual harassment, Greg Lukianoff, president of the Foundation for Individual Rights in Education and author of “Unlearning Liberty: Campus Censorship & the End of American Debate,” argued in an email to The Daily Caller News Foundation.
“This new stand alone definition of harassment is broader than your standard employment definition,” wrote Lukianoff, noting that most workplaces do not define sexual harassment as broadly as college campuses are now instructed to do.
Many public universities have begun hosting “sex week” events during Valentine’s Day week, where students attend lectures about masturbation and pornography, and receive free condoms and sex toys. If any student found these events offensive, he or she would be entitled to take action under the new harassment policies, Lukianoff said.
“Yes, this could be used against ‘sex weeks,’” he wrote to TheDC News Foundation.
The Office of Civil Rights maintains a list of verbal, nonverbal, and physical behaviors that could be considered sexual harassment. The list includes, “writing graffiti of a sexual nature,” “displaying or distributing sexually explicit drawings, pictures, or written materials,” “telling sexual or dirty jokes,” and “circulating or showing e-mails or Web sites of a sexual nature.”