An interesting fight is brewing at the University of California. Alexander McPherson, 64, is a leading biologist who has taken a stand against mandatory sexual harassment training on principle. Among other things, he objected to the requirement as an infringement of academic freedom and an act of political correctness. He may lose his tenured position and the University may lose a researcher responsible for $20 million a year in grants.
McPherson must attend a training course by November 12 to regain his standing — he has been suspended from all supervision and management duties. He stated: “I have consistently refused to take such training on the grounds that the adoption of the requirement was a naked political act by the state that offended my sensibilities, violated my rights as a tenured professor, impugned my character and cast a shadow of suspicion on my reputation and career. I even offered to go to jail if the university persisted in persecuting me for my refusal. We Scots are very stubborn in matters of this sort.”
Under a California law passed in 2004, all supervisors of businesses with over 50 people must undergo sexual harassment training. The University says that 97 percent of the school’s faculty have completed the training.
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Gyges,
Just so I’m clear–do you feel the govt. has the right to make laws for the safety and protection of the public?
Vince and Jill,
First off, I’m not arguing saying that the administrators are bad people for complying with the law (or even doing this program voluntarily). I’m trying (badly) to echo what Mespo said. I’ll also point out that this might be the Professor’s way of trying to get the law changed. He may be trying to draw attention to what he sees as a bad law by using civil disobedience.
Secondly, what I was trying to say by (really really badly) was that if the policy is just the University’s policy, I don’t have a problem with it. I’d actually agree with you just about everything you’ve said as an argument for employers requiring the training. My problem is with the government requiring the training.
Your analogies tend to fall a little flat for me. The fire drill\arsonist is the worst offender. You seem smart enough to figure out why. This situation is more akin to (as Mespo said), a law forcing everyone who works as a cashier to take a course on not stealing. I have no problem with a company making everyone who they employ do this (aside from that it’s probably a waste of money). I do have a problem with the company being TOLD they have to have to make their employee’s do it.
Your CLE example is a little better. The difference is that you’re talking about part of a licensing process, one that’s pretty well established as being necessary. As far as I know there’s no pressing need for the government to license people to be able to supervise in businesses with over 50 people.
I want to reiterate, my only problem is with the law requiring the training, not the training itself.
Gyges,
I am missing your points. Are you saying as new laws or regulations come into effect employees don’t need to learn them if they’ve been with the employer before the new laws/regs. took effect? If so, why?
Learning the law may be boring (depending on who’s teaching) but it isn’t punishment. I have a friend who works at the post office. His co-workers made any number of racial slurs to him and finally began leaving drawings of a hanging man in his work space. His supervisors, who had been trained in harassment policy did nothing, even when confronted with the drawings. The post office paid a large settlement on that case, due to 1. the original actions of co-workers and 2. the complete inaction of supervisors when confronted with compelling, repeted evidence of harassment.
There can be no punishment until the actions were taken/(not taken by supervisors). My friend could not have filed suit for discrimination because his supervisors and co-workers had been trained to recognize racial harassment. They had to commit an act of racial harassment first. One of my favorite Sponge Bob’s concerns the training manual for the Krusty Krab. It’s a wonderful send-up of the pain nearly every employee must go through upon starting work. Although mind-numbing, it isn’t punishment or pre-crime.
If you disagree with me I will call you unamerican and a socialist!
Gyges, what crime? Sexually harassment is primarily a civil matter, as part of anti-discrimination law.
It not like community service or rehabilition imposed by a criminal court. Yes, that is punitive. Her, the managers are required to take a class that assists them in PERFORMING THEIR JOB.
Didn’t you read the part about the supervisory and managerial responsiblity to maintain a workplace free of harassment? These classes train them to spot behavior of other employees. The classes apply, in part, to help perfect straight arrows, like the Perfessor, to recognize bad behavior before it blows up.
No one is going to jail because of this law. It is a purely civil matter. That is like saying that Virginia lawyers are being punished by being forced to take mandatory CLE BEFORE they commit the crime of criminal legal malpractice. Nothing of the sort is taking place. No one is accusing them of anything. The State of Virginia is just trying to maintain legal competence.
The same goes here. This training is no more punitive than safety training, personnel management, or business law.
Going out on a fire drill does not mean you are being punished as an arsonist.
Besides, the law of sexual harassment has developed over the past 40 years, both state and federal, and anyone can benefit from an update on the latest developments.
Finally, the university administrators are just doing their jobs. The law says require training for all supervisors and managers, and they are complying. It does not look like they have a choice. If the Good Doctor dislikes the law, then go after the legislators and change.
There was nothing personal in this. They were just trying to help him do his job, before he got hysterical and made a mountain from a molehill.
Also, you wrote “If the policy existed before the law, I’ll grant you that point. But if the law predates or coincides with the law I think that argues rather strongly that the policy is only in effect because of the law.” I don’t know what that means.
Vince,
If the policy existed before the law, I’ll grant you that point. But if the law predates or coincides with the law I think that argues rather strongly that the policy is only in effect because of the law.
As far as education not being punishment, I disagree in this case. The class analogous to community service or a Rehabilitation program. While they have benefits for the people involved, they become punishment when people are forced to participate as a result of criminal behavior. The difference is that here the people involved are being forced by the Government (regardless of who employs them) to participate BEFORE they commit any crime.
Speaking of sex, the Feds just announced that no charges will be filed against Spitzer.
Patty C. wrote “It’s much like the Liquor Liability clauses included for bar owners and liquor vendors. Employees are required to take a course to become informed about how to avoid serving intoxicated patrons and minors, etc.”
Right on the money, Patty.
Gyges, That is irrelevant.
Alexander McPherson is Professor, Molecular Biology & Biochemistry, School of Biological Sciences, at the University of California, a state university owned and operated by the State of California.
In this case, the State of California IS his employer. It is requiring him to go to a job-related class. JT wrote that “Under a California law passed in 2004, all supervisors of businesses with over 50 people must undergo sexual harassment training.” There might be an argument if he were in a private business with more that 50 people, but not here. He is a government employee.
Incidentally, most states, including Virgina, impose mandatory legal training requirements on all active lawyers in their jurisdiction. Is this anticipatory criminal punishment or an implied accusation of legal incompetence? Of course not. Is that the action of the thought police, telling lawyers what to think? No. It is just an effort by Virginia to maintain the competence of its State Bar.
Education is not punishment.
The government makes people take classes as a condition of employment all the time. It is simply not an issue.
Besides, it seems that he has been suspended from all supervision and management duties. He seems to continue as a tenure professor, with full academic freedom to teach and research.
An essential duty of a manager is to recognize and control sexually harassing activities by his subordinate employees, making training even more essential.
Training need not even necessarily imply that the supervisors and managers are the potential harassers. It should also train them to recognize what is and is not permissable.
Unless I miss my guess, this is a CYA maneuver the Professional Liability insurer for the State of CA came up with for its
Directors & Officers/Errors & Ommissions policies in an attempt to limit its overall potential (vicarious) liability in these situations.
It’s much like the Liquor Liability clauses included for bar owners and liquor vendors. Employees are required to take a course to become informed about how to avoid serving intoxicated patrons and minors, etc.
BTW, mespo, did you take the Sweet-Sixteen case? Ive thought about it often and did quite a bit of reading at the time…
Vince,
The problem is you’re arguing that an employer can make employees go to the classes, this case is about the ability of the government to make the man go to class.
mespo727272
What punishment? He simply goes to a class like everyone else. There is no liberty issue. LEt’s have some common sense. No one wants to send him to jail. They are not placing an unconstitutional condition on the holding of government employment. It is a simple condition of employment, like safety training or a fire drill.
If you don’t like the condition of employment, get another job.
For examply, the employer is being cross examined in a lawsuit…
Q. Do you train employees on sex harassment issues?
A. Not any more. We were accused of infringing academic freedom, being thought police, and of anticipatory punishment. So we made it voluntary.
Q. Did the employee accused of harassment take the class?
A. No, he chose not to.
Q. No further questions.
The employer is simply trying to defend against vicarious liability by showing diligent efforts to prevent the illegal practices.
Where is the criminal liability? There is none. There is no criminal punishment. Actus reus coupled with a mens rea is irrelevant BECAUSE NO ONE IS ACCUSED OF A CRIME!
There is no limit on his academic freedom to teach anything he wants, subject to academic discipline.
He is not being singled out. Everyone has to go.
And the government has every right to can train its employees in job-related matters. It can train its police in proper procedures, without the police assumeing that they are being punished in anticipation of violating constitutional rights.
It can train employees to safeguard classified information, without their assuming that they are being accused in advance of leaking secrets to the enemy.
It is just a reasonable effort to maintain a workplace free of harassment. He has not been asked to change or alter a single iota of anything he teaches or researches. He does not have to alter any of his thoughts at all. He is just being advised of potential activities that may cause him and the institution legal problems down the road.
All the employer wants to do is to guard against an employee who may defend himself by saying that no one ever told him it was wrong to do that, so he assumed it was okay.
Vince/Patty C:
I think the issue is one of anticipatory punishment. May the government presume that we are going to commit illegal or unlawful acts and thus educate (punish?) us against what we might do? It is the essence of thought police to say that it may, and that is why the good Professor sees it as an infringement on his academic freedom. We don’t punish for evil thoughts just yet, the government must still prove an actus reus coupled with a mens rea. The inconvenience in attending the class is irrelevant as this is a fundamental question about when criminal liability attaches. It involves essential liberty issues and thus the government must convincingly show how punishing after proof of unlawful action is inadequate to address the situation. This is one camel’s nose under the tent we can avoid.
JY: The link to the full story does not seem to work.
Patty C.: Everything you have written, among other things, should be covered in the class.
Vince, I don’t disagree with most of what you say. No one deserves to be harassed at work or school. I’m saying it’s not always what it appears to be.
Believe me, as a woman having achieved management positions in two, primarily male-dominated specialties, I know all about sexual harassment. My first eye-opening encounter, professionally, as a paralegal at the time, was when I was accosted, while doing research one evening, by an ADA in my town’s Court House Law Library – who then announced to me that he would be teaching one of my courses the next semester…
I didn’t care. He got nowhere. I made myself very clear and then I reported him to my professor who handled it for me. I also left the state, but not because of that incident.
Unfortunately, I have likewise seen, as a manager, too many instances of the office worker who wears a skirt that’s always a little too short, a little too much makeup, and a little too much perfume while often being the first to make the suggestive remarks ‘all in the spirit of office comradery’.
It’s not always an invitation to the one who responds and when misconstrued, you have to speak up – in no uncertain terms.
Plenty of people do send signals and then are upset when they attract the louts. as well.
Patty C wrote:
“Too often, though, women in particular, are not assertive enough to say something and may sense, consciously or otherwise, having some advantage to gain by ‘allowing’ the behavior to continue or conversely, something to risk losing by not.”
This — the risk of serious loss — is exacty the problem in a professor-student relationship, just as it is with supevisor and employee. The victim is often not free to object without dire consequences.
Sexual harassment is NOT like beauty and fairness: it is objectively ojectionable, ugly, and unfair — and it can apply to both sexes. And it cannot be palmed off as mere off-color remarks. Much of it entails offensive physical abuse.
Assertiveness can be an answer — between peers and equals. But we are talking about relationships that sometimes have coercive possiblities.
Besides, no one wants to send this poor old fool to jail. He just has to sit through a boring class. Subjecting people to compulsory boring classes has been a “crime” committed by untold numbers of professors for time immemorial.
He just has to sip a little of his own tea.
I agree mespo. Perhaps if they called the course something else, it would not be such an issue.
Sexual harassment, like beauty and fairness, is in the eye of the beholder. And it is perpetrated by both genders.
The first time someone makes a sexual remark or an unsolicited, unwelcome advance, it is not necessarily harassment.
If one is offended in some way by another’s actions or off-color remark, a discreet direct request needs to be made to the individual to cease in your presence. No explanation is required.
The second time it happens, it may very well harassment. If it continues to escalate, it almost certainly is.
Too often, though, women in particular, are not assertive enough to say something and may sense, consciously or otherwise, having some advantage to gain by ‘allowing’ the behavior to continue or conversely, something to risk losing by not.
Whatever else can be said about boors, they are generally not mind readers, just social dunces.
I think an even better course would be one in self-assertiveness for those who desire instruction on how to handle all manner of uncomfortable situations in life.
Just a couple of observations. First, in any discussion freedom of expression and academic freedom, we should distinguish between expressions and actions. Everyone should have freedom of expression.
But everone must accept limits on their actions, whether it is under civil tort law or criminal law. Sexual harassment is not the expression of an idea. It is a form of intrusive action that can be harmful and destructive in the extreme.
I would define academic freedom as a free search for the truth, subject to academic discipline. I cannot see how refraining from obnoxious, sexually harassing activity interferes with that freedom.
Second, I think that professors in general occupy an inherently coercive postition in their relation to students. For example, they can ruin a student’s career with a bad grade or recommendation.
So this professor, who is about my age, is objecting to the simple fact that he must sit in a classroom and listen to some things he might rather not hear, perhaps because he has already made up his mind. These matters are directly related to his employment.
This is not exactly persecution. He is not being herded off to reeducation camp. It is just another class.
I think the search for the truth would be better served if he heard the other side of the story, rather than closing his mind. He might learn something.
I would say that he is no better than anyone else. He should really grow up. He should sit down and listen to some considerations he may not have pondered in the past, and think them over. He might put himself in the position of a vulnerable student and consider the issues from that student’s point of view.
The training could be useful to him if it spells out the potential legal liablity, civil or criminal, that he or his institution may incur from some types of activities. It is no more unusual than a class giving business people training in securities or antitrust law to enable them to avoid liability in their daily business activities.
I certainly wish the churches had given thier clergy better training in sex harassment, since it might have prevented some massive human suffering and its resulting liablity, and would not have interfered with the religious freedom of the clergy.
So, how does this training infringe upon his academic freedom to pursue his scientific studies in any way, shape or form?
I know many plant managers who don’t want to know about OSHA regs. either. Other managers don’t like the ADA or FMLA, etc. They are still expected to know and enforce the law within their corporations. Not doing so leaves their companies open to lawsuits. I do know this is honored more in the breech than in fact, but still, it is not asking something unlawful to learn the law.
Sexual harassment is a big problem at universities. I was harassed as a grad student and that is a vulnerable position to be in for any student. Sexual harassment is against the law. I don’t see how learning what the law is and how it is applied is stepping on anyone’s academic freedom. I do wish students could get training on the law and have an office, independent of the university, for reporting/investigating possible abuses.
At 64, I suspect his is old enough not to care. I applaud his stand for academic freedom and his stubborn insistence to resist re-eductaion. No one is for sexual harassment but absent some showing that our “true Scotsman” is in need of such training, I find the requirement overly intrusive into his freedom to be left alone. It’s like requiring training that we should refrain from stealing. Living for 64 years should be training enough!