A policy that takes dead aim at harassment can protect athletes and ward off litigation.
The United States women's skeleton team went to the 2006 Winter Olympics in Turin, Italy, this winter. Its coach, Tim Nardiello, stayed home. Nardiello, who was accused of sexually harassing team members, had been suspended and would eventually be fired as coach before the Olympics began, even though an arbitrator found no credible evidence to support any claims of sexual harassment. The Nardiello case demonstrates how slippery, legally speaking, sexual harassment cases can be. The United States Olympic Committee followed proper procedures by submitting the case to an arbitrator, but it also had a legal obligation to protect its athletes if committee members suspected sexual harassment. Therefore, once the USOC, relying on its own inquiry, discovered inappropriate behavior by Nardiello, it was required to take any and all appropriate actions it felt were necessary. (The USOC ultimately refused to grant Nardiello coaching credentials for the Games and ordered him to stay away from the team during the final Olympic tune-ups. When he ignored these orders, Nardiello was fired for insubordination.) Since it is essential that athletic administrators know how to handle sexual harassment complaints properly, the following reviews the legal issues surrounding this difficult issue. Sexual harassment is a violation of both Title VII of the Civil Rights Act of 1964, which involves sexual harassment in the workplace, and Title IX of the Education Act of 1972, which involves sexual harassment in educational settings. In applying the law, the courts have identified two forms of sexual harassment: quid pro quo and hostile environment. Quid pro quo sexual harassment occurs when submission to such conduct is explicitly or implicitly made a term or condition of the victim's employment or education, or is used as the basis for decisions affecting that individual. In the coach-athlete relationship, some examples of quid pro quo harassment are when a coach grants or withholds benefits (such as a scholarship, starting position or playing time) as a result of an athlete's willingness or refusal to submit to the coach's sexual demands. Because the pressure may be either explicitly or implicitly made a term or condition of the individual's scholarship, starting position or playing time, the critical point is not whether the victim submits voluntarily, but whether the conduct he or she submits to is unwanted. The second form of sexual harassment, hostile environment, occurs when the coach or employer creates an environment that unreasonably interferes with an individual's employment or educational performance, or otherwise limits the ability of that individual to benefit from services, opportunities or privileges, by creating an intimidating, hostile or offensive environment. In determining whether an individual's conduct is severe enough to constitute hostile environment sexual harassment, it does not matter if the harasser's behavior is deliberate or simply has the effect of creating an offensive atmosphere - the only thing that matters is the outcome. Some examples of hostile environment sexual harassment would be unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person's body or dress, the use of sexually degrading language or jokes; or sexually suggestive objects, pictures, videotapes, audio recordings or other material, placed in the work or practice area, that may embarrass or offend an individual. Hostile environment sexual harassment, therefore, is sexual harassment not because it necessarily involves sexual gestures, language or activities, but because it is motivated by the victim's sex. Three relatively recent factors make sexual harassment a far more potent issue for athletic and fitness administrators: One of the ironic consequences of Title IX is that while the number of females participating in high school and college athletics has increased, the number of female coaches has decreased. In 1972, before the enactment of Title IX, more than 90 percent of all high school and college female athletes were coached by women. Today, however, the number of female athletes coached by women in college has dropped to less than 45 percent. While it should be noted that male coaches are not the only ones sexually harassing athletes (some female coaches have also been accused), the larger number of men coaching female athletes increases the opportunity and risk of sexual harassment. Both Title VII and Title IX allow compensatory damages to be awarded in cases of sexual harassment. Therefore, if a school or employer fails to stop known sexual harassment, the injured party can collect compensatory damages for any deliberate violations of the law. The Supreme Court has ruled that under both Title VII and Title IX, athletic administrators can be held liable for both same-sex and peer sexual harassment. Whether the harassment is by co-workers or other students, in other words, administrators and coaches must take affirmative steps to prevent sexual harassment once they have been made aware that a problem may exist. It is clear that the days of athletes having to tolerate a coach's unwanted sexual advances or language are over, and if athletic administrators fail to provide an environment free of hostile or abusive behavior, it can prove very costly. The following recommendations are offered to assist athletic administrators in developing sexual harassment policies: 1. Prevention The first step in preventing sexual harassment is to establish a clear policy prohibiting sexual harassment. The statement should not only explain the organization's policy on sexual harassment and that it will not be tolerated, but should also define what constitutes sexual harassment and give specific examples of prohibited behavior. 2. Grievance Procedures Athletic administrators should adopt and publish grievance procedures providing for prompt and equitable resolution of sexual harassment complaints. Since Title IX requires such an internal grievance procedure, schools that handle all complaints seriously and promptly may avoid the need for athletes to file claims with the Office for Civil Rights (OCR). In addition, victims need to know that their complaints are being taken seriously, or they may bypass the institution's grievance procedures and commence civil or criminal litigation. If an educational institution implements these guidelines when developing its sexual harassment policies and procedures, it should function to reduce instances of harassment and provide protection for its students. It may also mitigate liability if a complaint is made to the OCR or a civil suit is filed. 3. Investigation and Disciplinary Action Once a grievance has been filed or an athletic director has proof of a coach sexually harassing one of his or her athletes, the athletic director must take the appropriate action and either warn, suspend, transfer or dismiss the coach. The protection of an abusive coach, whether because of friendship, fear of a lawsuit or any positive contribution the coach may make to the school, does not outweigh the negative publicity and potential future legal liability of a sexual harassment case. This includes protecting the coach by not disclosing to future employers the reason the coach was dismissed. If contacted for a reference, administrators should tell the potential employer the reason the coach left. By disclosing that information, the administrator not only protects the school from potential future liability, but also future athletes from an abusive coach.