Sexual Harassment, Misconduct, and the Atmosphere of the Laboratory: The Legal and Professional Challenges Faced by Women Physical Science Researchers at Educational Institutions
Sekreta, Ellen, Duke Journal of Gender Law & Policy
Former Harvard University President, Larry Summers, once made public remarks correlating women's intrinsic academic abilities to their scarcity in high-powered science jobs. (1) These controversial comments sparked a debate about the advancement of women scientists at research universities. (2) While Summers' talk focused on innate intelligence, a more apt explanation for women's failure to advance in the sciences may be that they are still mistreated on the job. Sexual harassment, (3) discrimination, (4) and disparate impact (5) claims are still commonplace at research universities, despite the fact that universities have increasingly developed strategies to cope with the social and legal issues related to sexual harassment (6) and are bound to enforce Title IX, (7) if they accept federal funding.
This Article examines the sexual harassment of female physical scientists at academic research institutions and shows that sexual harassment is both endemic to those institutions and that the response is inadequate. Sexual harassment is of special concern to women scientists at research universities because of the unique dynamics of those workplaces. First, the strictly hierarchical structure inherent to the world of science research makes women vulnerable to abuse, precisely because they tend to hold lower-ranked positions. Second, women researchers are also made more vulnerable by the intimate, one-on-one nature of research work, which can make it less clear whether harassment occurred, and subject women scientists to a dissection of their personal and professional lives when they make claims of sexual harassment. Third, institutions are deterred from taking action against scientists accused of harassment, because these scientists often significantly contribute to the reputation of the university, and thus, indirectly, to its financial well-being.
Part II of this Article summarizes how sexual harassment laws are applied to educational institutions. Part III explores the various definitions and models of sexual harassment, establishing that sexual harassment is an abuse of power. Part IV probes institutional trends in the employment and education of women in the physical sciences, sex discrimination, and the culture of conducting scientific research. Part V analyzes several sexual harassment cases involving physical science researchers and students, and discusses how scrutiny of the plaintiff's behavior affects court decisions. It also discusses whether sexual harassment constitutes misconduct under the federal regulations of science ethics.
In Part VI, this Article ultimately concludes that courts frequently ignore the power dynamics inherent in the definition of "sexual harassment," and instead concentrate on the actions and characteristics of the victim. Despite legal developments that both protect women against sexual harassment and facilitate the bringing of sexual harassment claims, courts continue to see women as provoking the sexual attention, rather than presuming that the harassing conduct (1) is unwelcome, (2) compromises academic standards, and (3) is inconsistent with an environment that purports to treat men and women equally. This attitude is particularly damaging for women researchers in the physical sciences, not just because women are in the minority and typically hold more "junior positions," but because the research culture emphasizes compliance and secrecy. Part VI also recommends policies for decreasing the prevalence of sexual harassment in the physical sciences.
II. SEXUAL HARASSMENT LAW
Title VII of the Civil Rights Act of 1964 makes it illegal "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." (8) The Equal Employment Opportunity Commission (EEOC) has promulgated regulations to enforce Title VII:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. …