Ron Lindsay of CFI (a lawyer and legal scholar) has composed a brief, solid primer on why sexual harassment policies are necessary and how they actually work, in the context of CFI’s new policy adopted for conferences and events. See CFI’s New Policy on Hostile Conduct. It is illuminating because of his legal expertise and the fact that he dispels many of the false assumptions about what sexual harassment policies do. He also discusses the merits of different policy elements and why CFI accepts some and rejects others, a good example of what I have been talking about: see On Sexual Harassment on that point, and the whole backstory on why I’m talking about this and what I think about it. Here I want to collect my thoughts on how venues could and should improve any policies they now have or will adopt in future. If you agree, and see a policy that could be improved, feel free to refer the organization in question here.
Defining and Delimiting Harassment
It is well worth reading the policy CFI adopted, and its smart use of definitions, which I highly recommend other venues adopt. Most particularly:
In general, prohibited conduct includes any abusive conduct that has the purpose or effect of unreasonably interfering with another person’s ability to enjoy and participate in the conference, including social events related to the conference.
Well stated. And they adopt the ideal clarification all atheist and skeptical events should incorporate into their policies:
Critical examination of beliefs, including critical commentary on another person’s views, does not, by itself, constitute hostile conduct or harassment.
I must pause to dispel another myth going around, which is that restaurants and pubs don’t have harassment policies. Sorry, but they typically do. It would be naive about business liability insurance to think otherwise. The best businesses even go beyond what their carriers require: see Bars Adopt ‘Zero Tolerance’ for Sexual Harassment (ironic considering this is what some people have said smart businesses would never do–yet the most successful ones have done exactly that: openly promote their sexual harassment policies specifically to increase female clientele). Crommunist also wrote about this subject as an informed insider, having worked as a bouncer at several bars. Cristina Rad has also come out with her Case 2 on sexual harassment, including her stories about working in bar environments, and her observations and conclusions about it are very well worth reading.
Back to the topic of my present concern, Todd Stiefel (of the Stiefel Freethought Foundation) has produced an excellent example of how to debate the specifics of policy and recommend improvements (see: On Harassment and Policies). He makes three specific recommendations that I happen to agree with (more or less). Greta Christina makes a general observation of why this is exactly how people in the atheist movement should behave when debating these issues, and I concur with her general observations (see: Some Thoughts on Critiquing Codes of Conduct). This is in fact the difference between maturity and immaturity. This is what my point 4 looks like in action.
Stiefel’s first concern was that offensive speech should not itself be defined as harassment, and he even recommends CFI’s policy (as I do) for the solution to that concern. His second concern was that “unwelcome sexual attention” was too vague. Void for Vagueness is a real legal concern, which can nullify an actual law (see this legal brief at Justia.com), and since codes of conduct are in effect bylaws they can suffer the same problem. This is of particular concern to a business or organization when a policy must be appealed to in a liability case. You can lose all the protection you thought a policy was going to provide you. Lindsay, however, rejected Stiefel’s concerns, and concludes that the phrase “unwelcome sexual attention” is not legally vague (it meets tests of objective fact: when an advance is openly declared unwanted, there is no ambiguity, and likewise when an advance exceeds all reasonable standards of common decency).
In his analysis, Lindsay essentially says that the phrase “unwelcome sexual attention” already encompasses what Stiefel would want spelled out (here quoting Stiefel’s recommended language):
Unwanted sexual attention will be considered harassment when: a) it continues after being rejected; or, b) it includes threats, coercion or deliberate intimidation; or, c) it is directed towards a subordinate in a hierarchical organization (such as a manager towards an employee below them in an organization.); or, d) it is done by someone who knows or should reasonably know that the attention will be unwelcome.
Such excess verbiage is unnecessary because objective measures of violation have to be on record anyway for a policy to be actionable (and that means an advance has to have been turned down before repeated advances count as unwelcome, or an advance has to be so crude and impolite that a “reasonable person,” i.e. a jury of one’s peers, would deem it unwelcome, whether in a court of law or a policy enforcement committee). As Lindsay explains, defining sexual harassment as (in part) “unwelcome sexual attention” does not “prohibit flirting or a polite expression of interest in another person.” For instance, he says, “the question, ‘Would you be interested in having a drink later?’ would not be considered harassment,” whereas something far more crude, vulgar, and offensive would be, without any prior rejection required.
I agree with Lindsay on the technical facts here, but the problem is communicating to the public (the actual and would-be attendees of an organizational event) what is meant, and I do believe Stiefel is right that this needs to be spelled out more clearly for that purpose. This does not, however, require the lengthy and technical spelling-out that Stiefel recommends. It is sufficient to state something like, “all sexual attention that a recipient has stated is unwelcome, or that exceeds common standards of decency, is unwelcome.”
Stiefel’s third concern is with bans on “any touching without explicit permission,” which runs afoul of standard cultural norms like shaking hands and even hugging, where nonverbal assent (or refusal) is normally what is expected and supplied (and of course, previous relationships can establish implicit permission, running afoul of the notion of requiring explicit permission). He is correct that a policy should not require verbal permission for any and all forms of touching.
For example, the first draft of the American Atheists Harassment Policy stated “No touching other people without asking” (it even specified that this applies to hugging; it has not yet been changed, but as their policy is a work in progress, this provision may be revised in future). Likewise the use of the word “explicit” can be perceived as mandating verbal permission. Such wording should not be used. The word “express” or “expressed” might be better (since that would more clearly include nonverbal expression). Or just prohibit “unwelcome touching.” This requires anyone who wants to initiate a touch to discover whether a touch is welcome, and clear nonverbal assent (holding out a hand to be shaken, opening up your arms to receive a hug) and prior relationship (which will already have established what is welcome) would meet that standard. [M.A. Melby convinced me an even better way to communicate this responsibility is with wording like “No touching other people without first confirming they are okay with it,” which is clear about whose responsibility it is to find out, while still allowing nonverbal communication to accomplish it.]
Sex with Event Speakers
Finally, Stiefel included among “unwelcome” advances those “directed towards a subordinate in a hierarchical organization,” which perhaps indirectly criticizes some policies that aim to prohibit all intra-organizational sex. Such as, currently, the policy mandated within the Secular Student Alliance Speaker’s Bureau, which says “speakers should not engage in sexual behavior with students with respect to Speakers Bureau events.” On the one hand, in law and in standard bylaw practice, the term “should” does not have the force of “shall” (it means expected but not required, per the second definition of “shall” in Black’s Law Dictionary, the court-established three-prong test for the discretionary meaning of “shall,” or the 2000 IEEE instructional procedure standards, page 15), but it’s entirely possible the drafters of the SSA policy didn’t know that. And whether or not they did, some people have called for policies to prohibit all sexual activity between speakers and event staff and attendees.
I have already noted before that I believe this is overbearing and unrealistic. There is no relevant difference between a college venue sponsored by the SSA and one not, and college kids are not really kids, and the policy would make no sense if I were married to one, which gets us into “why is it okay if we’re married and not if we’re not?” That kind of distinction is for religious prudes, not freethinking humanists.
As Ron Lindsay aptly puts it:
CFI has no opposition to consensual sex among adults; indeed, this organization has long championed the right of individuals to engage in such conduct, and has protested restrictions on such conduct based on religious dogma. CFI’s policy does not interfere with consensual sex. It’s unwelcome sexual attention that is prohibited, not welcome sexual attention.
I personally have no problem abiding by the SSA policy when they are sponsoring me as a speaker (except when it makes no sense, e.g. if my wife became a student at a venue). But I don’t think it’s a good policy and I don’t encourage it being adopted by other organizations. If I were ever keen to violate it (that is, if I were single and wanted to fool around), I’d just withdraw from the SSA Speaker’s Bureau. But I have no reason to, since I’m married, making it a non-issue for me. But that can be unfair to single or polyamorous speakers, and thus the SSA policy is in my opinion discriminatory (it will result in the loss or turning away of speakers for unfair reasons). Unless their use of the word “should” is intended to mean not prohibited but only discouraged (but in that case it should perhaps be clarified).
Either way, I believe a better policy would be: “Speakers are not to solicit sexual behavior from students or staff.” If necessary, “and any sexual behavior with students or staff is discouraged” could be added on. That covers what they actually want to prevent (harassment and horndogging, which is unprofessional) and minimize (romantic complications, and the attendant problems they can cause the organization), without prohibiting mutually consensual behavior among adults (which can certainly adhere to workplace etiquette), as that can then be initiated by a willing subordinate, without having been pressured or made uncomfortable by any advances from the speaker. The existence of power imbalances often calls for an etiquette of deferring decisions to a subordinate that require an exercise of their own free will. It does not require placing restraints on even a subordinate’s free will. That is excessive and unwarranted.
In sum, as Dave Silverman of American Atheists aptly put it, “I want people to have sex at our conferences.” Sexual harassment policies should not get in the way of that. And so AA and CFI have designed theirs not to. I believe everyone should follow their lead.