DIFFICULT MORAL QUESTIONS
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Question 165: How should a Catholic college deal with employees’ sexual misbehavior?
I am president of a midsized Catholic college. Besides various undergraduate programs, we have a few programs leading to masters’ degrees. Our student handbook includes policies regarding students’ sexual behavior among themselves. Nobody is calling them into question at present, but last year we had two unrelated cases of inappropriate sexual behavior involving other members of the college community.
One involved a young man who teaches psychology and has been voted an outstanding professor by his undergraduate students at the end of each of the seven semesters he has taught here. A female graduate student to whom he gave a C in a required course in the M.S. in Social Services program accused him of downgrading her because she refused to have sexual intercourse with him. He admitted that they had been dating and that she had broken off the relationship, but claimed he had never tried, or even wanted, to have intercourse with her. The faculty affairs committee conducted a hearing, found nothing to support the accuser’s claim, observed that the school’s existing policies were not violated even if the professor did seek intercourse with the student, and recommended unanimously that the case be dismissed. I approved the recommendation, and most faculty members and students were satisfied. However, the case was widely publicized, and an intense debate took place, both on campus and in the local media, about the propriety of such a relationship between a professor and a student. Concerned about the publicity, the board discussed the matter and asked me to develop a policy on sexual intimacies involving students with other members of the college community—not only faculty members but other employees.
The other case involved a male food service supervisor. One of his female staff accused him of repeatedly squeezing her breasts. He denied the accusation, claiming the woman was angry because he had reprimanded her for violating sanitary food-handling procedures. We asked an attractive young woman, whom we had just hired as assistant director of campus security, to work temporarily in food service; in a few days the supervisor began squeezing her breasts, and we fired him. The story spread around the campus, and WAMD (Women against Male Domination, pronounced “whammed”), a campus feminist society, began campaigning for an explicit policy on sexual harassment. Their key demands were that every complaint be heard by a panel of two women elected by female members of the college community and one man elected by the males, that when it is her-word-against-his the panel should presume the woman is telling the truth, and that any employee found guilty by the panel should be terminated at once.
I set up an ad hoc committee of five to study both matters and suggest a comprehensive policy on inappropriate sexual behavior by administrators, faculty, and staff. The committee represented not only the different segments of the college community but different points of view. I directed it to examine both sexual harassment and employees’ sexual behavior with consenting parties, whether other employees or students. The committee worked hard throughout the year, gathering information about relevant policies on other campuses, holding extensive hearings, and thoroughly debating the problems and possible solutions. Now they have delivered the results: a brief common report reviewing the committee’s activity and summarizing the issues that emerged, and five lengthy individual reports offering somewhat overlapping but largely inconsistent policy proposals.
One committee member argues that intimate relationships involving a superior and subordinate employee, or an employee and a student, should be excluded absolutely, because subordinates and students are likely to be exploited. Another would exclude all intimate relationships involving an employee on the ground that Christians not married to each other should not be involved in any intimate relationship. Another committee member holds that there should be no rules against intimate relationships between or among consenting adults, since people should be free to do as they please, and the college has no business enforcing traditional moral norms; cases of exploitation are an entirely different matter and should be dealt with as harassment. A fourth member wishes to draw lines depending on how far mutually agreeable activities go, so that dating would be permitted, sexual behavior that does not involve any exposure of genitals would be tolerated in some cases but not in others, and other behavior would be excluded. The fifth wishes to draw lines on a different basis. All sorts of intimacies between consenting parties would be acceptable unless they were currently related as female subordinate and male superior or female student and male professor.
The committee is similarly divided over what constitutes sexual harassment and how to deal with it. One member holds that the college should consider only legally wrongful behavior to be harassment; he proposes that we help anyone who complains of harassment to file a complaint with the police and/or a lawsuit, and discharge anyone found guilty or ordered by a court to pay damages. Another holds that sexual harassment cannot be defined in general terms and argues that the college community as a whole should act as a legislative body, one vote for each person, to enact a code of interpersonal behavior prohibiting specified performances and setting punishments for individuals found guilty of violations; he also proposes that a college court be established to hear and decide cases, and that it follow procedures and use standards of evidence similar to those of state criminal courts. Still another committee member argues that any verbal or physical conduct of a sexual nature is harassment if it (1) relates to some action affecting the other party’s status, advancement, or evaluation; (2) interferes with the other party’s work or educational performance; or (3) tends to create an intimidating or offensive living, working, or learning environment. While proposing that complaints of harassment be dealt with initially by the informal procedures we have followed in the past, this member also recommends that a harassment board be established to conduct formal hearings on complaints not settled to the satisfaction of the complainants. The procedure in such hearings would be similar to that of a civil lawsuit, with the decision based on the preponderance of the evidence; penalties would range from a formal reprimand to dismissal. Finally, two committee members subscribe to the WAMD demands about how to deal with harassment, and hold that it occurs whenever a man’s behavior either would be considered offensive by the average woman or is considered offensive by a particular woman and repeated after she has told the man not to do it again.
I have asked our lawyers to review the committee’s report and advise me what the college must do to comply with all relevant laws in these matters and minimize our liability. I am asking you and two other Christian ethicists what we must do to comply with the Church’s teaching and fulfill our moral responsibilities to all members of the college community.
Analysis:
This question calls for clarification of the principles from which sound rules can be derived. The principle of all college policies should be the common good of the community as a Catholic college. The college should not attempt to enforce traditional Christian moral norms considered insofar as they guide individuals to their proper good. But its policies certainly should exclude all sexual behavior that is both likely to impede cooperation for its common good or otherwise injure it. Injustice associated with a violation should be considered an aggravating circumstance. To be fair, the college’s policies should exclude inappropriate sexual behavior not only of heterosexual males but of heterosexual women and homosexuals as well. Behavior of specifically excluded types should be subject to sanction even if it occurs only once and nobody involved objects. Not all violations of the norms will be equally grave, and only very serious or repeated violations warrant dismissal. A formal procedure is needed for receiving, investigating, and adjudicating instances of alleged misbehavior.
The reply could be along the following lines:
Since a community’s leaders should shape its members’ cooperation toward their common good, that good is the principle of the norms a leader should articulate and enforce. So, try to articulate norms and policies regarding employees’ sexual behavior in view of the college’s common good. Since not even virtuous sexual behavior pertains to academic life, the college’s norms and policies will limit sexual behavior rather than positively direct it, and the college should prohibit any sexual behavior by employees that would unreasonably impede their cooperation for the common good or otherwise injure it.
The central components of a Catholic college’s common good are three: (1) effective cooperation among faculty and students in cultivating and sharing knowledge of truth and intellectual virtues, (2) justice and charity among all members of the community, and (3) the religious value of the common enterprise considered as cooperation in a particular part of God’s creative, redemptive, and sanctifying work. That religious value primarily is realized in the cooperation of members of the college community in its specifically academic life, insofar as that cooperation is shaped by the Gospel’s truth and bears consistent witness to it.369
It appears from the views of some committee members that they have not accepted the college’s common good as the principle for making policy. Given this principle, however, the college indeed can rightly limit individuals’ freedom to do as they please, can describe in general terms what behavior is excluded, and can articulate objective norms, rather than using the subjective standard of offensiveness, whether to the average woman or to a particular woman.
Since civil law, especially in a secularized society, is not grounded on the components of the college’s common good, it can tolerate some behavior college policy should exclude. Moreover, while the college’s procedures for applying and enforcing its policy should be fair, that does not require all elements of legal due process. Some in fact would be so costly and time consuming that trying to implement them would be self-defeating, and so detrimental to the common good of the college.
For various reasons, not all members of a college community are equally able to shape the common effort toward the common good. Moreover, different sorts of members are involved in the community on different bases, and some have far greater stakes in it than others. Therefore, though the college’s governance can include democratic elements, on the whole it cannot be democratic, as most participants in the community usually acknowledge. Still, as in other matters, so in this case norms of sexual behavior articulated and enforced by the administration are likely to be effective only if most of the community’s reasonable and committed members see their appropriateness and put them into practice.
The problem of sexual harassment now exists in Catholic colleges largely as a consequence of the so-called sexual revolution—that is, the widespread rejection, especially since the early 1960s, of traditional Judeo-Christian norms of sexual conduct. Perceptions of sexual misbehavior also have changed, in some ways for the better due to greater sensitivity to injustice, but in other ways for the worse due to dulled sensitivity to the goods of chaste friendship and marriage. Today, people who see nothing to object to in interpersonal behavior that is objectively wrong, inasmuch as it is unchaste or immodest, frequently initiate such behavior and/or are receptive to it. The behavior, then, often is mutually agreeable, and it has become more or less common, even in a community such as a Catholic college. Still, everyone agrees on the need for regulation when the behavior either abuses power or is not mutually agreeable, and so sexual exploitation by people in positions of authority and the repetition of unchaste or immodest behavior by one party despite another’s objection have become essential criteria for defining offenses. Instead of censuring unchaste and immodest behavior as such, people now adopt the language of governmental guidelines and talk about “an intimidating and hostile environment” or “an offensive learning, working, or living environment.”370 The fact is, though, that even truly consensual and mutually agreeable unchaste and immodest behavior is morally unacceptable in itself, and for someone to persist in such behavior despite another’s objection to it is only an aggravation of its inherent wrongness.
To deal with sexual harassment, therefore, a Catholic college must begin by teaching the truth about the requirements of charity and justice in all interpersonal relationships, not least intimate ones, as well as the norms of chastity and modesty. Moreover, the college’s facilities and activities should be arranged to foster a wholesome atmosphere conducive to a Christian style of life, and the college should support its members who wish to avoid temptation and live good and holy lives (see q. 163, above).
However, not all violations of the norms of Christian morality bearing on sexual activity affect the college’s common good. Not only employees’ sins of thought and secret unchaste solitary acts are outside the college’s jurisdiction, but also some sexual wrongdoing that becomes known and involves couples. For example, it should not concern the college if a food service supervisor openly lives in a lawful nonmarital relationship with the manager of the campus bookstore, provided they behave modestly around the college and their relationship does not adversely affect either their job performance or their working relationships with each other and co-workers. Again, an administrator’s or faculty member’s isolated sexual sin with someone outside the college community is unlikely to have any serious impact on the college unless the act also violates the law. However, college policy plainly should exclude all violations of the norms of Christian sexual morality at odds with the college’s common good. College policy even may exclude sexual activity morally acceptable in itself if it is likely to interfere with attainment of the college’s common good.
The contracts the college makes with its employees, including administrators and faculty members, should and perhaps do allow it to impose appropriate sanctions for proven violations of its policies, including the prospective policy regarding sexual activity. If existing contracts do not include the necessary provisions, legal problems might limit the sanctions the college can impose. But I shall assume that the college can enforce the policies required for its common good, even by dismissing administrators and tenured faculty members.
In formulating the college’s policies and norms, various classes of activities should be distinguished, though the same behavior may fall into two or more of these.
One major kind is immodest behavior that detracts from the college’s cultural environment. Modesty disposes one to forestall, avoid, and escape occasions of sexual sins for oneself and not to generate them for others (see CCC, 2521–24). Behavior that intentionally or, if not intentionally, foreseeably and unjustifiably tends to arouse others’ lustful thoughts and desires is immodest. Such behavior, especially if flagrant, is contrary to any community’s common good, since it violates justice and charity by tempting people to commit grave sins. In a college, even subtly immodest behavior in public also seriously detracts from the cultural environment by distracting attention from intellectual pursuits and recollection. In a Catholic college, it also impedes the effectiveness of the community’s witness to Christian values. So, the college should promote modesty and prohibit all its members from doing things likely to lead others into sin—for example, by dressing, speaking, or behaving in sexually provocative ways; or by displaying indecent images, distributing pornographic literature, or playing indecent recordings so loudly that others have to hear them.
A second major kind of activity that must be dealt with comprises certain unchaste forms of behavior to which participants consent. Of course, if it is carried on secretly and never becomes known to the college community, the behavior never becomes an issue. Also, as suggested above, not all habitual sexual immorality of employees adversely affects the college’s common good. But those who directly cooperate in providing the college’s educational service—members of the faculty and administration—should contribute to its witness to Christian values, especially by being models for students. Where such employees are concerned, the college should never tolerate grave and habitual sexual immorality, including living in a nonmarital sexual relationship, whether with another member of the college community or someone outside it.
An important subclass of this second kind of activity comprises unchaste activities by two or more consenting members of the college community that are likely to adversely affect their or others’ cooperation for the college’s common good. For example, even an isolated instance of unchaste sexual activity involving employees related as superior and subordinate is likely to distort their working relationship and, if it becomes known, to generate tensions with other employees, who will suspect favoritism. Similarly, and more seriously, even isolated instances of unchaste sexual activity by faculty members or administrators with students lead the latter into sin instead of encouraging them to grow in virtue. They also provide bad example for other students, damage the college’s witness to Christian values, and adversely affect its cultural environment by creating expectations, or fears, of more such romantic relationships. Such expectations in turn generate ambiguities in academic relationships and inhibit appropriate camaraderie among faculty and students in their academic pursuits. Not just intercourse but any behavior intended to bring about or maintain sexual arousal or cause sexual satisfaction should be excluded.
For the same reason, a student’s actual academic relationship with a faculty member—for example, as a current member of his or her class—should not be considered a necessary condition for an offense, but should be an aggravating circumstance. Another common, and very important, aggravating circumstance is injustice associated with the unchaste behavior—for example, the demand for sexual favors to obtain a deserved promotion or grade, or the offer of an undeserved promotion or grade in exchange for sexual favors, or the offer of sexual favors as a bribe. Even if mutually agreeable to those involved, such transactions are unjust. Things that should not be exchanged are exchanged, subordinates and students are exploited or exposed to exploitation, and an irrelevant criterion is used for evaluations that will reflect unfairly on other employees or students.
A third major kind of behavior that must be dealt with comprises unchaste or immodest activities injurious and objectionable to one or more of the persons involved. Sexual assault, ranging from an immodest touch to rape, is an important subclass (see LCL, 545–49); and, though they are often less serious, unchaste proposals and any sort of immodesty that is an unwanted occasion of sin for others involve violations of justice and charity analogous to those in sexual assault. When both parties are members of the college community, such wrongs also injure its common good by impeding cooperation. But even if the victim is not a member of the college community, such wrongful behavior involving administrators and faculty members—and even other employees or students, if the behavior is unlawful—will injure the college’s common good by damaging its reputation and witness to Christian values. Since such behavior is at odds with the common good of the college in every instance, it should be excluded in all cases, not subjected to sanction only if someone persists after having been informed that it is objectionable. The persistence that constitutes harassment should be considered an aggravating circumstance, not a necessary condition for the offense.
A fourth major kind of behavior can be called “sexual” only by analogy. It comprises activities neither unchaste nor immodest but unjust and offensive inasmuch as they violate the equal respect owed to persons of both sexes: jokes ridiculing persons of either sex on the basis of sex-related characteristics, insults referring to sex-specific organs or bodily features, derogatory generalizations about women or men. Also included in this kind of behavior are activities that violate the equal respect due homosexual persons despite the unchaste activities in which they perhaps engage. Behavior of this kind should not be treated as sexual harassment but should be reprimanded and, if necessary, punished as other instances of disrespect are.
A fifth major kind of behavior comprises activities morally acceptable in themselves, but detrimental to the college’s common good. These can be subdivided into activities mutually agreeable to the parties involved and those objectionable to one or more of the persons affected.
Chaste expressions of erotic affection between engaged couples are an example of activities both morally acceptable in themselves and mutually agreeable. Carried on in public, nevertheless, such activities in some situations are detrimental to the college’s common good by being distractions from the work at hand. Carried on by a member of the administration or faculty with a student, they also would create at least the appearance of impropriety. So, the college can rightly require discretion on the part of those who engage in these legitimate activities. Such romantic activities must be distinguished from appropriate signs and tokens of friendship among members of the college community, including those between administrators or faculty members and students of both sexes. These must not be discouraged, for they not only are legitimate in themselves but pertain to relationships generally harmonious with the college’s common good and often conducive to it.
Various sorts of activities morally acceptable in themselves but objectionable to one or more persons affected also can be detrimental to the college’s common good. Suppose two college employees, Dan and Sharon, are free to initiate a romantic relationship. Dan persistently seeks to become better acquainted despite Sharon’s repeated refusals, and she objects to this persistence, though it involves nothing unchaste, immodest, or insulting. As a matter of courtesy Dan should desist, while persisting is likely to interfere with the working relationship between the two employees. So, the college can rightly require Dan to desist. In such cases, an individual’s persistence in the annoying behavior constitutes harassment, and that is the defining feature of his or her offense.
In formulating and promulgating norms forbidding inappropriate sexual behavior, the college should specify the possible sanctions. These should vary, since not all violations will be equally detrimental to the common good. Not only do different sorts of wrongful behavior vary in their inherent gravity, but circumstances can greatly affect their seriousness. For example, sexual intercourse by a professor with a student who consents is not inherently as grave an offense as a professor’s raping a student; however, if a professor accepted a student’s invitation to have intercourse in return for a better grade, the mutually agreeable intercourse might be considered so injurious to the college’s good as to be punishable by the same penalty, namely, the professor’s dismissal. For most offenses, other circumstances also should be taken into account: whether the wrongful activity involved (even incipient) marital infidelity or sacrilege, whether it was an isolated instance of misbehavior or part of a pattern, whether the offender’s guilt was mitigated by subjective factors limiting his or her responsibility, whether the victim in some way shared responsibility for the wrongdoing, and so on. For example, though one person’s immodesty by no means justifies another’s sexual assault or invitation to engage in unchaste activity, a victim’s immodesty, though it should not lead to condoning an offense, should count as a mitigating factor in evaluating it. Similarly, an insult blurted out in anger should be considered a very minor offense by comparison with a calculated injustice, such as an actual or proposed transaction involving the exchange of sexual favors and an undeserved grade or promotion.
Since every member of the college community shares responsibility for its common good, the policies should exclude inappropriate sexual behavior not only by heterosexual males but by heterosexual women and homosexuals. For the same reason, when the norms exclude activities by consenting participants, any member of the college community involved in such an activity should be recognized as an offender, even though the differing guilt of particular participants also should be taken into account. For example, if a professor and a student exchange a high grade for sexual favors, both violate the college’s common good and deserve punishment, even though the professor deserves to be punished more severely. Of course, since members of the faculty and administration have a far greater stake in the college than students and staff, dismissal, the most severe sanction available to the college, is likely to be a far greater penalty for a professor or administrator than for a student or staff employee.
In designing the procedures for dealing with offenses, you should of course obtain legal advice. I offer the following ideas only with the thought that they may be helpful.
It seems to me that informal procedures can be used to deal with some violations, especially many less serious ones, without sacrificing the college’s interest or violating individuals’ rights. But to safeguard the common good and individuals’ rights, a formal procedure for receiving, investigating, and adjudicating alleged violations will be needed, especially in cases that could lead to severe sanctions or might render the college liable for damages or subject to penalties if not handled properly. The formal process need not embody all features of public criminal process, but it should be fair to the accused.
A fair process should include features providing reasonable assurance that it will result in judgments based on the truth (see q. 167, below). That precludes finding anyone guilty unless his or her guilt is established beyond reasonable doubt. WAMD’s demand that a woman be presumed to be telling the truth whenever her assertion contradicts a man’s is unacceptable because the presumption would unfairly prejudice judgment. WAMD’s demands regarding the composition of the panel to hear complaints and its members’ election are unacceptable since they would discriminate unfairly against men as such.