Sexual Harassment and Police misconduct

Introduction

It has commonly been found that sexual harassment and misconduct prevails in male dominated occupations- the occupation of law enforcement is no exception. There is scholarly consensus that bureaucracy of the police is generally complicit in the sexual misconduct of its officers so long as the administrators are not pressured by the mass media. Sexual harassment both of female officers by their male co-workers and of female civilians are usually under-reported and handled lightly if complaints are indeed sustained. This attitude sets a dangerous precedence of acceptance which compromises the legitimacy of law enforcement everywhere, sending more messages of corruption to an already disillusioned public. Weber-ists would claim that such attitudes are inherent within all bureaucracies since its nature reinforces an unequal treatment of workers through a skewed division of labor and would argue that there is nothing that can be done. Indeed, until actual punishments are enforced upon the officers who warrant it, sexual misconduct and harassment will continue to climb.    

Corruption and misconduct plague all levels of the criminal justice system, from the police, to the courts, to corrections. However, it is with the police that the everyday citizen interacts. The police symbolize the power and the failings of the justice system for the general public. When police scandals pervade the mass media, the public loses faith in the legitimacy of not only law enforcement but with the justice system in its entirety. However, a closer examination of the justice system reveals that the organization of the criminal justice itself is to blame. One form of corruption that has become an American epidemic is the sexual misconduct of police officers.

Evolution of Sexual Harassment Policy

Sexual misconduct and harassment are relatively new problems for the police administrators, erupting into a crisis as women joined the workforce (Morash 2008). The more prevalent female police officers became, the more disputes about sexual harassment arose. Before one can examine the pervasiveness of sexual harassment amongst the police, the evolution of public policy against sexual harassment in the workplace must first be discussed. The development of sexual harassment policies has been a slow progression and often the laws are not universally applied (2008). Constitutionally, the due process and equal protection clause of the fourteenth amendment provide special protection, in both federal and state jurisdictions, to women who are government in employees (Lee, R. D., & Greenlaw, P. S. 1995).  In 1963, the Equal Pay Act established equal pay for equal work between men and women (1995). In 1964, title VII of the Civil Rights Act abolished hiring, firing, and promotional treatment of employees based upon sex discrimination (1995). This was later amended, in1978, to prohibit discrimination based on pregnancy, child-birth, or any medical conditions resulting from pregnancy (1995).  In the City of Los Angeles, Department of Water and Power v. Manhart, the Supreme Court ruled that retirement benefits could not be denied on the basis of sex or gender (1995).

“In 1980, the EEOC issued guidelines declaring sexual harassment to be a form of sex discrimination and in violation of Title VII of the Civil Right Act…22 later, the Supreme Court ruled that sexual harassment violated the prohibition against sex discrimination” (Lee, R. D., & Greenlaw, P. S. 1995). The Supreme Court’s ruling established two types of sexual harassment:  quid pro quo and the hostile work environment. The quid pro quo guideline, also referred to as sexual extortion, is the withholding of “tangle aspects of an employee’s job” (Lee, R. D., & Greenlaw, P. S. 1995) such as wages or a promotion unless the employee consent to sexual favors (1995).  However, in Barnes v. Train, a federal employee brought suit against her employer after she was fired when she refused to have an affair with him. The Supreme Court ruled that this allegation did not suit the purpose of the established guideline and the case was dismissed.  The second guideline establishes sexual harassment as any conduct which could create a hostile work environment; traditionally, because of the statute’s vagueness, this is the guideline under which most civil suits or complaints of sexual harassment are filed (1995). In order to prove a claim of a hostile work environment, five conditions must be present:

“(1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition or privilege of employment, and (5) [the employer] knew or should have known of the harassment and failed to take proper remedial action” (Lee, R. D., & Greenlaw, P. S. 1995).

Hostile work environment can be nonsexual in nature, meaning any behavior that creates an environment counterproductive to doing one’s job could be construed as sexual harassment as long as the behavior is geared toward discrimination based on one’s sex (1995). Meaning comments that might suggest opposite sex’s inferiority are prohibited (1995). Later established by 1993, Harris case the requirement of a hostile work environment was altered in a way that said the claimant had to establish pattern of sexual harassment; one incidence was not enough to warrant court action (1995).  Cases claiming quid-pro-quo actions have never been heard by the Supreme Court, because they lack the vague language and the need for interpretation of the guideline for a claim of a hostile work environment (1995).

 Bureaucracy, Deviance, and Police

In assessing any form of police misconduct, the institution and organization of the police itself must be explored. There is scholarly consensus of the view that the criminal justice system and its three levels, police, courts, and corrections, is bureaucratic in nature, seeking to promote the general common interest over the individual. Max Weber, a sociologist, described bureaucracy as the inevitable transition toward rational authority which develops out of military culture and focuses on efficiency through a chain of command and specialized division of labor (Bartels, K. 2009). However, Weber warned that any bureaucracy is inherently not democratic and naturally corrupt as its hierarchical authority gives rise to abuse and deviance, not only toward the public but also to the organization’s own members (2009).

Sociologists believe that no action is “inherently deviant” (Fox, C., & Harding, D. J. 2005); therefore, “actions are deviant only to the extent that they are perceived, reported, defined, accepted, and treated as deviant” (Fox, C., & Harding, D. J. 2005).  Thus, deviance is relative.  Organizational deviance occurs within an organization when actions oppose the organizations goals/expectations and produce “unanticipated harmful consequences” (Fox, C., & Harding, D. J. 2005).  By Fox and Harding’s definition, if sexual misconduct of police officers is not reported whether from fear of retaliation or fear of not believed then conduct in question will continue. Also if sexual misconduct is reported but not handled with appropriate sanctions then loss of legitimacy, right of power, amongst other officers and the public could ensue (Harr 1997). With the pervasiveness of the mass media, scandals of misconduct by law enforcement instantly reach the public’s ear. When law enforcement’s legitimacy is compromised and the police are seen as nothing more than a corrupt organization, the public ceases utilizing the purpose of the police (Kane 2005). Violent crime, crimes against the police and vigilantism increase. The public act as its own form of crime control (Kane 2005).

 Sexual Harassment and Police

Despite attempts from litigation, sexual harassment is notoriously difficult to define and no consensus exists amongst the literature (Morash 2008). Still, research on sexual and harassment and police misconduct have their own standards of determining sexual harassment which radically differs from the courts. Though police requirements vary from state to state, all police departments share similar characteristics: an age requirement, high school education or equivalent, no criminal record, and a “good moral character” (Collins 1998). Police officers can be suspended or terminated if these requirements are violated. Sexual misconduct falls under the moral character requirement (US Equal Opportunity Commission 2000). When an employing agent of law enforcement is presented with an allegation of an officer violating a moral character requirement, the employer has a duty to investigate and remove the undesired behavior from the workplace (2000).

The commonly accepted guideline for determining a moral character violation is referred to as a “preponderance of the evidence” (Reiter, 1998, p. 12.2) which, regarding sexual misconduct, simply means the evidence has to show only that the officer “more likely than not” (Reiter, 1998, 12.2) committed the offense (Who’s Policing the Police? 2004). Generally, complaints are filed and investigated by a disciplinary committee/board comprised of police and administrators and other fellow officers (2004). However, since states differ in their definition of what constitutes a moral character violation, this standard may also vary from state to state, and department to department (2004).

Also, law enforcement exercise broad discretion and run the risk of being biased in the officer’s favor or discouraging victims to come forward (2004). Indeed, unless” redress is sought in criminal or civil court,” an individual cannot compel any disciplinary committee to investigate any sexual misconduct allegations (2004). “Sexual harassment is not necessarily considered a terminable offense and thus repercussions depend on the severity of the offense” (Who’s Policing the Police? 2004). Punishments for officers found guilty of sexual harassment or other character violations can include remedial training, probation, letters of reprimand, demotions, suspensions, out of agency transfers, and terminations (2004).

The Florida Commission: A Case Study

One study, (Who’s Policing the Police? 2004) focused on the thirty three cases of law enforcement disciplinary actions against sexual harassment in the Florida Criminal Justice Standards and Training Commission. The commission originated as the Florida Police Standards Council in 1967 where it controlled salaries, the selection and training of officers, and promoted professional conduct. In 1981, Florida legislation expanded its responsibilities and name, empowering the commission to become the “ultimate disciplinarian” (Who’s Policing the Police? 2004). The commission consisted of a nineteen member representative body. Four members are composed of the Attorney General, the Commissioner of Education, the Secretary of the Department, and the Director of the Florida State Highway Patrol. The other fourteen members are appointed by the governor with a term of four years and consist of police officers with a rank of sergeant and below, correction officers with a rank of sergeant or below, a training director and one civilian resident. Members can be removed for felony convictions or incompetence.

The commission has “the authority to take disciplinary action against officers who fail to maintain the minimal requirements and who fail to possess good moral character” (Who’s Policing the Police? 2004). The commission conducts its own investigation and to avoid litigation from the officer charged the allegations must be sustained by “clear and convincing evidence” (Who’s Policing the Police? 2004) or the charges are dismissed. If the charges are sustained the case is taken before a three panel commission to decide the case for probable cause (2004). If the probable cause is satisfied then a formal, or informal if the officer prefers, hearing is convened and the commission can take the disciplinary measures against the officer which vary by seriousness of the offense (2004). The penalty imposed for sexual harassment depends on the “severity of the behavior” (Who’s Policing the Police? 2004), the number of victims, and the number of incidences (2004). However, for sexual harassment the harshest penalty that can be issued for a charge of sexual harassment is a two year suspension (2004).

The study analysis found that the most prevalent form of sexual harassment consisted of unwanted sexual attention. Most of the causes were dismissed for cause; only twelve percent resulted in disciplinary action. Generally when disciplinary action was warranted, the punishment was often “insubstantial” (Who’s Policing the Police? 2004). The results of this study indicate that despite the rise of sexual misconduct of police officers coming to the public’s attention, the commission did not consider sexual harassment to be a true problem (2004). Though this is only one department, in one state, the author suggests that such results can be generalized to express the mainstream attitude toward police sexual misconduct, sending the message that such behavior is tolerated or worse acceptable (Reiter 1998).

Morash’s Study

 In 2008, Morash conducted a study of female officers who had themselves experienced sexual harassment from their male co-workers. Two hundred eighty-two female officers were surveyed in a Midwestern state across five departments (2008). The officers ranged in rank, race, and age (2008). Of the surveys that were completed, one hundred seventeen were interviewed about their experiences (2008). Morash identified for the purposes of the study three different types: gender harassment, unwanted sexual attention, and sexual coercion (2008). Morash found that one hundred- six female officers had experienced some form of sexual harassment or sexual coercion (2008). Morash found that African American women were more likely to experience high levels of sexual harassment than their white counterparts (2008). Also, lower rank officers were more likely to experience sexual harassment than female officers of lieutenant and above (2008). The majority of the offenses fell under the category of gender harassment, consisting of sexist comments and offensive stories (2008). The most reported experience was the comment by male officers that “women can’t do the job” (Morash 2008). However, most women “tolerated the sexual harassment as the price for fitting into the male organizational culture” (Morash 2008).

Conclusion

It has commonly been found that sexual harassment prevails in male dominated occupations- the occupation of law enforcement is no exception. There is scholarly consensus that bureaucracy of the police is generally complicit in the sexual misconduct of its officers so long as the administrators are not pressured by the mass media. Sexual harassment both of female officers by their male co-workers and of female civilians are usually under-reported and handled lightly if complaints are indeed sustained. This attitude sets a dangerous precedence of acceptance which compromises the legitimacy of law enforcement everywhere, sending more messages of corruption to an already disillusioned public. Weber-ists would claim that such attitudes are inherent within all bureaucracies since its nature reinforces an unequal treatment of workers through a skewed division of labor and would argue that there is nothing that can be done. Indeed, until actual punishments are enforced upon the officers who warrant it, sexual misconduct and harassment will continue to climb.

References

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US Equal Employment Opportunity Commission (2000), “Guidelines on sexual harassment, 29  C.F.R s. 1604.11 (f) (2000)”, EEOC Compliance Manual, available at: http://www.access.gpo.gov/nara/cfr/waisidx_00/29cfrl604_00.html (accessed 07 November 2011).