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By Brett A. Sokolow, J.D., ATIXA Advisory Board

A senior administrator at one of our client college campuses is a 77-year-old man. We’ve received several complaints over the last couple of years because he tends to call all of the women who report to him by the reportedly sexist nickname “honey.” When we’ve engaged him about it, he claims it is a term of endearment because honey is sweet and so are the women who work for him. Explaining basic sexism to a near octogenarian can be challenging, and his typical defense is that he tends to also call all his male reports “bud,” which is true. We suspect the nicknaming has become more common as his memory for specific names has become duller, but he won’t acknowledge that. So, we have more than a few women who want to be able to work without a diminishing nickname, no complaints from male reports, and a respondent who insists that an innocuous nickname isn’t sexual harassment when he doesn’t mean anything by it. He insists that “honey” can only be sexist if the context is sexist, and his use of it is not. I suppose there is an argument for that, given that my wife and I call each other honey. I even had an Aunt Honey. So, the name or nickname isn’t inherently anything. As usual, context matters.

Having looked into it informally, it doesn’t seem like his sexist terms translate into sexist practices. Women are promoted, supported, mentored, fairly compensated, and generally well-respected within his division. So, is his conduct enough to support the sexual harassment charge that some of the women hope the university will bring against him? Bizarrely, I guess it depends on what party is in office in Washington, D.C. Under the previous administration’s rules, the answer is no. Under the current administration’s proposed rule, the answer is likely yes. But why should the definition of what constitutes sexual harassment blow with political winds? Shouldn’t it be a fixed legal principle, rather than a malleable, interpretive standard? Why is this even debatable?

I think the simple answer is because no one with the authority to do so has ever actually attempted to clearly define it in a non-political frame. So, let’s try to do so, here. This is where SPOO and SORP come in. In 1999, the Supreme Court used the Davis v. Monroe County decision to frame the basis for liability in monetary damages under Title IX. To get to the money, the conduct has to be SPOO, according to the Supreme Court – it must be Severe, Pervasive, and Objectively Offensive. Okay, but Title IX is not the only statute to touch on sexual harassment. What about Title VII, the Fair Housing Act (FHA), and state laws? Title VII and the FHA give us the SORP liability standard – conduct that is Severe OR Pervasive/Persistent (SORPP may be more accurate). SPOO and SORP seem kind of similar – especially to ears not trained in parsing legal terms – but they are not.

SPOO is a high bar. Severe and pervasive and objectively offensive requires meeting all three elements or else the alleged words or conduct will fall short of creating a hostile environment on the basis of sex. SORP(P) is a lower bar. The disjunction “OR” means that severity and pervasiveness are decoupled; one or the other will suffice. You don’t need to prove both. You still need to prove objective offense, but the OO in SORP is generally silent. SORPOO? No way. Silent means it is part of the legal liability standard, but not a part that is commonly emphasized in policy for some reason. So, can the difference between an “and” and an “or” really be that significant? Yep. The senior administrator described above has not engaged in SPOO sexual harassment, but he has engaged in SORP sexual harassment. His conduct is not severe. But it is pervasive. Is it objectively offensive? Arguable. Some of the women in his division don’t even notice it. Most don’t care. A small number are offended, but you don’t have a right to repeatedly and regularly offend five of your employees, do you?

So, why have the courts given us varying standards? We’re not entirely sure they did it intentionally, but if they did, the most logical explanation is that the Title IX-based SPOO definition sets a higher bar because it often applies in public settings, where First Amendment protections impact whether harassing speech is protected or unprotected speech, and thus subject to discipline. Yet, Title VII applies to public employees too, so that answer is not entirely satisfying, though the bulk of American employees are privately employed. We’re not even sure that the Supreme Court meant to give us a definition. The SPOO standard is a standard for liability, but the Supreme Court never said in Davis that they meant for it to become a definition of the offense for schools. Surely, if the Supreme Court had meant for that to be the case, they could have and would have said so explicitly in Davis. They did not.

In fact, post-Davis, the Department of Education examined this standard and rejected it as a required definition under Title IX. Then, in 2017, the Trump administration re-examined the question, and the Department of Education decided that to preserve First Amendment protections, SPOO had to become the law of the Title IX land. This change in regulations took effect in 2020, and really only impacted educational institutions. Employers still largely use standards promulgated by the Equal Employment Opportunity Commission (EEOC) to define sexual harassment that actually don’t reference SORP at all. SORP is the court standard for liability, not the policy standard. There is no particular reason why the court standard for liability and an institutional definition of an offense need to be identical, but they do need to align, at least conceptually.

The EEOC uses this formulation:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitlyor implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

It’s a bit circular to define a hostile environment as something that creates a hostile environment, but there you have it. And maybe EEOC is on to something here. While the Trump administration thought it was a good idea to align court standards and policy definitions, that’s actually the outlier approach. Title VII, the Fair Housing Act, and other applicable statutes don’t have or require a direct alignment between policy definitions and liability standards, but the policy standards are derived from the statutes. What would happen if we did that with Title IX, and sidestepped the troublesome alphabet soup of SPOO altogether? Severity is difficult to define and understand. It’s ill-suited to being a standard because it is amorphous and invites substantial subjectivity in assessment. Persistence is pretty simple, because it requires repetition, but pervasiveness can be more abstract. Why is an abstraction desirable as a policy element? Hint: It’s not. And don’t even get me started on the relative malleability of objective offense as a concept. Well, okay, I’ve already written on that at length here.

So, how do we build a better mousetrap for defining hostile environment sexual harassment? Let’s jettison the alphabet soup altogether and remember that the statute is concerned with a person being denied access to an education program or activity on the basis of sex. Shouldn’t that be the litmus test for a policy definition then? What about something pithy like this:

Unwelcome sexual or sex/gender-based conduct that reasonably could or does limit or deny a person’s access to the recipient’s education program or activity.

Twenty-five simple, elegant words. No fluff. We don’t need to bog ourselves down with endless debates about severity. The outcome is the answer. If denial of access is the whole point of Title IX, make denial of access the litmus test for whether verbal or physical conduct crosses the line to create a hostile environment. If, based on the respondent’s conduct, a reasonable person would experience limitation or denial of access on the basis of sex, that’s enough to prove a violation.

But don’t we need SPOO to keep educational entities from violating First Amendment rights? I don’t think so. Congress included protection from denial of educational access when it wrote Title IX, and that standard bakes SPOO in already, without needing to be explicit about it. Objectively, physical or verbal conduct won’t be actionable without a discriminatory effect, and the First Amendment protects offensive speech, but not when it reasonably could or does cause actual programmatic deprivation.

Conduct that is not severe or pervasive won’t be enough to cause a limitation or denial of access. And the reasonable person standard (problematic though it is) is the best tool we have to ensure that someone’s overreaction to being called “honey” won’t be actionable as sexual harassment. Should you call women in your division honey? Certainly not. But a reasonable woman employee is not deprived of educational or employment access by being referred to as “honey,” even repeatedly. Being sexist does not necessarily equate to being discriminatory on the basis of sex.

Does this analysis mean that sexual harassment (as I have redefined it here) functions as an exception to the First Amendment, similar to defamatory speech, words that incite imminent unlawful action, and the like? Yes, I think it does. I’m not creating that exception; Congress did when it codified Title IX. I don’t want anyone to think that any definition of sexual harassment can or should be used to circumvent First Amendment protections. If you are a public school (or a private school in California because of the Leonard Law), you need to train your Title IX team and work with legal counsel to ensure that you don’t interpret any sexual harassment policy to violate the free speech rights of any member of your community.

The Department of Education is now poised to re-write the definition of sexual harassment, yet again. They’ve proposed a hybrid of SORP and my proposed impact/effect language from above. Maybe as the result of the rulemaking process and the comments submitted (including this Tip of the Week), the Department will realize it doesn’t need SORP at all and finally free us up to analyze harassing speech and conduct by its effect on access, which is really the whole point.

Click here to review ATIXA’s full comment on the Title IX Proposed Rule.

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