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HARVARD LAW SCHOOL

MEMORANDUM

TO:     Members of Harvard Law School Community

FROM:   Dean Robert C. Clark

DATE:   October 25, 1995

RE:     Sexual Harassment Guidelines


     Attached is a copy of the Law School's Sexual
Harassment Guidelines, which are now officially in force.

     Parts I and II describe prohibited conduct. Part III
describes implementing and enforcement procedures. In Parts
I and II, the Guidelines themselves are clearly numbered,
and are set out in the form of statutory provisions.
Accompanying the Guidelines, but in smaller typeface, are
passages labeled "Commentary" and "Illustrative Examples."
While these materials are not part of the Guidelines per
se, the Faculty did vote that they be included in this
public document, in order to facilitate understanding and
interpretation of the Guidelines, as well as meaningful
instruction about them. The items labeled "Introduction"
were not explicitly voted upon by the Faculty but were in
the report submitted by the Sexual Harassment Committee.
(All of this may remind upper-level students of the
conventions used in presenting certain statutes, such as
the Uniform Commercial Code.)

     It should be noted that there are a number of related
preexisting Guidelines and policies that deal with sexual
harassment or the procedures for enforcing complaints. For
example, there are separate sexual harassment guidelines
applicable to the Law School's non-exempt (unionized) staff
and to its exempt staff, and the Administrative Board has
existing procedures for handling complaints of many kinds
against students. If interested, you may obtain a copy of
a document prepared by the Sexual Harassment Committee and
entitled "Appendix of Related Materials," which collects
these materials. (If you are a student, contact the Dean of
Students office. If you are a member of the faculty or
staff, contact the Academic Affairs office.)


Harvard Law School
Sexual Harassment Guidelines

(As adopted by vote of the faculty in April, 1995)

Part I
Guidelines Concerning Sexual Harassment

Introduction

      Harvard Law School is committed to maintaining a
learning and work environment free from sexual harassment.
The following guidelines, which define sexual harassment as
prohibited by the Law School, both express institutional
values and carry out the mandates of state and federal law.

      As a reflection of institutional values, the
guidelines uphold traditions of academic freedom and
uncensored debate on matters of public concern. They effect
no compromise of freedom of thought, inquiry, or debate.
Rather, the guidelines seek to ensure an environment in
which education, work, research, and discussion are not
corrupted by sexual harassment.

      The guidelines establish institutionally enforceable
prohibitions, not aspirational standards. They do not
preclude other, non-disciplinary efforts to resolve
interpersonal grievances or to create a hospitable work and
educational environment for all members of the Law School
community, regardless of gender or sexual orientation.

      The guidelines of this Part I deal with harassment
through conduct and speech of an explicitly sexual nature.
Sex-based harassment can take other forms - for example,
physically intimidating conduct that is not inherently
sexual but is targeted at others based on their gender or
sexual orientation. Harassment of this kind is addressed in
Part II of these guidelines.

      A preliminary comment on this distinction may be
appropriate. In common parlance, the term "sexual
harassment" may well encompass harassment that is
"sex-based" as well as inherently sexual. Certainly the
Supreme Court's "sexual harassment" cases have not
distinguished between these two forms of harassment.
Because the Court clearly regards Title VII as creating
rights to freedom from both, its broad use of the term
"sexual harassment" to include both has been wholly
understandable. In the context of' a university, however,
interests in free expression are of central importance, and
must be weighed against interests in freedom from harassing
speech. The analytical distinction between "sexual
harassment" and harassment that is "sex-based" helps to
clarify the collision of competing values and makes it
possible to define protected and prohibited categories with
enhanced precision.

Guidelines

      1. Quid pro quo harassment. Submission to or
rejection of sexual advances, sexual overtures, or requests
for sexual favors shall not be made a ground for any
decision relating to employment, academic performance,
extracurricular activities, or entitlement to services or
opportunities at Harvard Law School

      Commentary. No one's standing or opportunities; at
Harvard Law School should depend on submission to or
rejection of sexual advances or requests for sexual favors.
Decisionmaking on these bases is an affront to the dignity
of those who are immediately affected and creates an
environment of fear, degradation, resentment, and suspicion
that is incompatible with the Law School's mission and
ideals.

      Illustrative examples. (1) Professor A, who has made
several rejected invitations to his secretary B, tells B
that he will give her a better employment performance
evaluation if she will have a drink with him after work. In
the absence of circumstances indicating the contrary, the
invitation would reasonably be understood as a "sexual
overture," and Professor A has violated the guideline.

      (2) Students C and D are both members of a Law School
affiliated journal. C tells D that she will vote to accept
his note for publication if he will sleep with her. C has
made submission to a sexual advance or request for sexual
favors a ground for decision relating to an extracurricular
opportunity at Harvard Law School. Student C has violated
the guideline.

      (3) Student E tells Student F, with whom she has a
romantic relationship, that she will review, offer comments
on, and help him to edit a Law School paper the next day if
he will spend a relaxed evening with her and if they can
sleep together. (The offered assistance is of a kind that
does not violate any independent Law School prohibition.)
Because the help offered by E does not involve the use or
abuse of any office, power, or authority relating to
employment, academic performance, extracurricular
activities, or entitlement to services or opportunities at
Harvard Law School, Student E has not violated this
guideline.

       2. Harassment through sexual relationships and
requests to initiate romantic or sexual relationships
between faculty and students. No Law School faculty member
shall request or accept sexual favors from or solicit a
romantic or sexual relationship with any student who is
enrolled in a course taught by that faculty member or
otherwise subject to that faculty member's academic
supervision before a final grade on the student's
supervised academic performance has been submitted to the
Registrar.

      Commentary. (i) Romantic relationships between Law
School faculty and their students create the appearance of
favoritism and are fraught with potential for actual
favoritism and for quid pro quo sexual harassment. In
addition, quid pro quo harassment may be difficult to prove
in many cases in which pressure has been exerted or
experienced. The blind-grading of examinations in large
classes substantially alleviates, but does not wholly
eliminate, these risks. Law School faculty are therefore
forbidden to request or accept sexual favors from or to
solicit a romantic or sexual relationship with any student
currently enrolled in their classes or otherwise subject to
their formal academic supervision.

      To some extent, the potential for favoritism and
actual or apparent abuse of power may exist whenever a
faculty member solicits or enters a romantic relationship
with a student, even if the student is not currently
enrolled in a course taught by the faculty member. But no
bright line marks the point at which the potential for
abuse of power disappears, since students may rely on the
recommendations of former teachers throughout their
professional careers. A lifetime prohibition against
romantic relations between faculty and their former
students would represent an intolerable infringement on
personal freedom. In addition, both faculty and students
must be presumed to be mature and responsible adults
entitled to make personal decisions concerning intimate
relationships. A prophylactic prohibition, limited to the
period in which a student is subject to being officially
graded by a faculty member, reflects a middle course
between a blanket prohibition against romantic
relationships between students and faculty and a policy
that countenances such relationships in the absence of
provable quid pro quos.

      (ii) There is inevitably some vagueness in a
prohibition against solicitations to initiate romantic or
sexual relationships. Faculty should of course be available
to see students informally as well as formally, to go to
lunch with students, and to dine with students and attend
student parties under appropriate circumstances. Faculty
should, however, avoid "dating" relationships with students
subject to their immediate supervision.

      (iii) For purposes of this prohibition, "faculty
member" includes visiting professors, instructors, and
anyone with responsibility for evaluating student
performances for Law School grades or academic credit.

      (iv) Romantic relationships between supervisors and
staff directly or indirectly reporting to them raise many
of the same concerns of favoritism and appearance of
favoritism, and are fraught with the same potential for
quid pro quo sexual harassment, as romantic relationships
between faculty and students. Supervisory relationships in
employment commonly last longer than a student's term in a
faculty member's course, however. It is therefore more
difficult to insist that mutually interested adult staff
members should simply have to wait until one no longer
reports to the other before initiating a romantic
relationship. Although romantic relationships between
supervisors and staff reporting to them are not
categorically prohibited by this guideline, status
differentials are sometimes relevant to determinations of
whether requests for sexual favors, sexual advances, or
other speech or conduct of a sexual nature constitute
prohibited harassment under guideline 3 below.

      Illustrative examples. (1) Student G, who has a
longstanding romantic relationship with Professor H, is
assigned to Professor H's section of a basic Law School
course. This guideline potentially applies, and either G or
H should communicate with the dean, the registrar, or
another appropriate Law School official to arrange for G to
be assigned to another section. Even in the case of a
longstanding relationship, many of the considerations
underlying the guideline remain relevant. If the
relationship between G and H should sour, the potential
would exist for subtle, difficult-to-prove forms of quid
pro quo harassment to occur. In addition, the Law School
has a powerful interest in avoiding favoritism and the
appearance of favoritism based on sexual relationships.

The guideline would continue to apply even if Professor H
taught the only section of an advanced course. G could of
course audit H's course, or possibly arrange to take the
same course at another law school

      (2) Student I, a Legal Methods instructor, allows
himself to be seduced by J, a student in his section,
before the course is completed. Student I has violated the
guideline. As is made explicit in the commentary, for
purposes this guideline, "'faculty member' includes ...
anyone with responsibility for evaluating student
performances for Law School grades or academic credit."
Although letter grades are not given in Legal Methods,
academic credit is awarded, and the instructor has a
responsibility for evaluating J's performance.

       3. Harassment through requests for sexual favors,
sexual advances, or other speech or conduct of a sexual
nature. No member of the Law School community shall subject
any other member of the Law School community to any request
for sexual favors, any sexual advance, or any other speech
or conduct of a sexual nature that

(i) is unwelcome; and

(ii) is abusive or unreasonably recurring or invasive; and

(iii) has the purpose or effect of unreasonably interfering
with an individual's work or academic performance or
creating an intimidating, demeaning, degrading, hostile, or
otherwise seriously offensive working or educational
environment at Harvard Law School;

provided that no speech or combination of speech and
conduct shall be deemed violative of this guideline if it
is reasonably designed or intended to contribute to legal
or public education, academic inquiry, or reasoned debate
on issues of public concern or is protected by the
Massachusetts Civil Rights Act or the First Amendment.

      Commentary. (i) The educational and professional
missions of the Law School require an environment in which
all members of the Law School community can work, study,
and learn without being harassed by sexual advances,
requests for sexual favors, or other speech and conduct of
a sexual nature. Perhaps the most egregious forms of
proscribed conduct of a sexual nature are already
prohibited by the criminal and civil law and by the
University statement of Rights and Responsibilities. This
guideline in no way derogates from or displaces those
prohibitions, but instead creates a further-reaching
protection against requests for sexual favors, sexual
advances, and speech or conduct of a sexual nature that are
incompatible with the School's educational and professional
goals.

      (ii) This guideline largely follows the model of the
guidelines promulgated by the Equal Employment Opportunity
Commission to define sexual harassment (other than "quid
pro quo" harassment, as dealt with in guideline 1 above)
that is prohibited in the workplace by Title VII. The EEOC
guidelines have also been adapted by a number of courts to
define prohibited sexual harassment in educational
institutions under Title IX. Harvard Law School is subject
to both Title VII and Title IX, and members of the Law
School community already enjoy the protection of these
statutes. This guideline adapts the EEOC model, as glossed
by the courts, in two main respects. First, Title VII,
Title IX, and the EEOC guidelines deal with the obligations
of employers and educational institutions and their agents
(including, e.g., supervisors and faculty) to provide a
work or educational environment that is free from sexual
harassment. This guideline imposes duties of non-harassment
directly on other individual members of the Law School
community. Second, this guideline makes clear that
prohibitions against sexual harassment by members of the
Law School community complement, rather than derogate from,
traditions of uncensored debate on matters of public
concern and especially of academic freedom. The guideline
is also consistent with the Massachusetts Civil Rights Act,
which prohibits coercive interferences with freedom of
expression, regardless of whether state action is present.

      (iii) A variety of independent criteria must each be
satisfied for a violation of this guideline to occur. In
addition, a number of those criteria should be understood
as establishing primarily objective standards. Among these
are the standards for determining when speech or conduct is
"unwelcome"; is "abusive" or "unreasonably" recurring or
invasive; has the purpose or effect of "unreasonably"
interfering with a person's work or academic performance;
creates a work or academic environment that is
"intimidating, demeaning, degrading, hostile, or otherwise
seriously offensive"; and is "reasonably designed or
intended" to contribute to legal or public education,
academic inquiry, or reasoned debate on issues of public
concern. Nonetheless, the guideline would be violated by
someone who knew or should have known that particular
speech or conduct of a sexual nature would be perceived by
its target or any one of its targets as abusive or
unreasonably recurring or invasive and would therefore be
experienced by that person as creating an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive work or educational environment at Harvard Law
School, unless that speech or conduct is reasonably
designed or intended to contribute to legal or public
education, academic inquiry, or reasoned debate on issues
of public concern.

      (iv) Some judgments involving the application of the
relevant criteria, including judgments of reasonableness,
can only be made on a case-by-case basis. Nonetheless,
three factors are likely to be of recurring importance.

      First, requests for sexual favors, sexual advances,
and individually targeted speech or conduct of a sexual
nature between people of different statuses and authority
present special risks of imposition, intimidation, and
abuse. For example, speech or conduct directed by a
superior at a subordinate or by a faculty member at a
student is more likely to constitute prohibited sexual
harassment than would the same speech or conduct among
people of equal status within the institution.

      Second, because the ultimate focus of concern is the
working and educational environment at Harvard Law School,
more stringent standards may be applied to requests for
sexual favors, sexual advances, and to conduct of a sexual
nature occurring in classrooms, libraries, and the
workplace than to otherwise identical speech or conduct
occurring in other, especially off-campus, settings. A
similar distinction may apply to other speech of a sexual
nature, except insofar as such speech is reasonably
designed or intended to contribute to legal or public
education, academic inquiry, or reasoned debate on issues
of public concern. This difference in standards recognizes
not only that speech or conduct occurring outside of the
workplace or academic environment may be less likely to
have the purpose or effect of unreasonably interfering with
performance or of creating a hostile or otherwise offensive
environment. It also recognizes that the application of
standards such as these to every aspect of a person's
speech or conduct - even as his or her residence, and even
during his or her leisure time - gives rise to concerns
about the appropriate scope for Law School regulation of
social life. These concerns may appropriately be considered
by a decisionmaker in determining whether speech or conduct
should be deemed to be violative of this guideline.

      Third, within the Law School and its campus, people
enjoy rights and reasonable expectations of privacy to
varying degrees.

For example, the internal decoration of a student's
dormitory room, except insofar as targeted at or displayed
to the outside, is protected by strong expectations of
privacy and generally lies beyond the scope of these
guidelines. There is a more limited expectation of privacy
in Law School offices, since educational and professional
obligations normally involve in-office contact with other
members of the Law School community. The internal
decorations of faculty and other offices, and any music
played at reasonable levels in such offices or in student
dormitory rooms, should not be deemed to violate this
guideline before the actual or potential complainant has
raised any concern about such matters with the responsible
person and given that person a reasonable opportunity to
respond.

      (v) Public and semi-public speeches, many of which
are subject to Law School guidelines governing
student-sponsored meetings to which speakers are invited,
are unlikely to be affected by this guideline.

      (vi) This guideline encompasses actions occurring off
campus to the extent, but only to the extent, that such
actions (alone or in combination with on-campus actions)
unreasonably interfere with an individual's work or
academic performance or have the purpose or effect of
creating an intimidating, demeaning, degrading, hostile, or
otherwise seriously offensive working or educational
environment at Harvard Law School

      (vii) As used throughout these guidelines, the term
"Law School community" encompasses all faculty and students
of Harvard Law School and all staff of Harvard Law School
insofar as consistent with their employment contracts.

      Illustrative examples. (1) After a heated and
occasionally humorous classroom exchange, Professor K sends
a sexually explicit greeting card to L, a student in his
class who he thinks is intellectually promising but
sanctimonious, rigid, and prudish. L tells K that she found
his action inappropriate and disturbing. Professor K
responds by sending several more sexually explicit cards.
L's response makes it manifest that K's conduct is
"unwelcome." Following L's response, K's action is also
"unreasonably recurring." Especially in light of Professor
K's position of authority, his conduct could "unreasonably
interfere" with L's academic performance; in any event, K's
conduct toward L suffices to create "an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive ... educational environment."

Professor K might respond that his conduct was "reasonably
designed or intended" to contribute to legal education by
getting Student L to "lighten up" or to learn to deal more
effectively as a lawyer with people of different
sensibilities. As a general matter, the provision of the
guideline privileging speech or conduct "that is reasonably
designed or intended to contribute to legal or public
educational, academic inquiry, or reasoned debate on issues
of public concern" should be construed broadly. Here,
however, Professor K's unreasonably recurring, out-of-class
conduct lies beyond the bounds of any "reasonable" design
or intent to contribute to legal education.

      (2) During a classroom discussion of the relationship
between mental states and legal and moral culpability,
Professor M tells an improbable story, taken from the
Talmud, about a man who accidentally falls from a roof and
onto a woman in such a way that sexual intercourse
accidentally occurs. N, a student in the class, complains
that the story was "unwelcome," that it was "abusive" of
the sensibilities of women in the class, and that it
created a seriously hostile environment for women by
trivializing problems of sexual subordination and rape. N's
arguments notwithstanding, Professor M has not violated
this guideline. First, M's remark is not "abusive." General
comments, not targeted or directed at a particular
individual or small group of individuals, will seldom
qualify as "abusive" under the objective standard called
for by the commentary. Second, a single remark such as M's
will seldom "unreasonably interfer[e]" with someone's work
or academic performance or create "an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive working or educational environment" within the
meaning of the guideline. As established by Title VII
caselaw, a prohibited hostile environment can be created
only by conduct whose effect is "severe" or "pervasive."
M's story satisfies neither requirement. Finally, M's story
comes within the provision expressly privileging speech
that is "reasonably designed or intended to contribute to
legal ... education ... or reasoned debate on issues of
public concern."

      (3) Student O has too much to drink at a party in
Somerville and boorishly propositions Student P in front of
several other students. When P rebuffs the proposition, O
becomes somewhat abusive and speculates loudly and crudely
about P's sex life. Although O's outburst is "unwelcome"
and "abusive," this isolated, wholly verbal, off-campus
incident between students should not be deemed to
"unreasonably interfer[e] with an individual's work or
academic performance" or to create a seriously offensive
working or educational environment at Harvard Law School
within the meaning of this guideline.

      (4) Students Q, R, and S, who are male, develop a
running "joke" that T, a woman in their first-year section,
keeps a hotdog in her underpants. Having drunk too much at
a student party, Q tells T that R and S say she has a
hotdog in her pants and asks if it is true. T tells Q he is
"sick" and walks away. Thereafter, when T walks into a
classroom, Q, R, and S routinely make sexually suggestive
jokes, comments, and gestures based on the theme that T has
a hotdog in her underwear. Q, R, and S have violated this
guideline.

      (5) As part of a classroom discussion of gender
discrimination, Professor U asks students in the class to
list and then discuss gender-based stereotypes. When
students offer stereotypes of women, including purportedly
stereotypical attitudes towards sex, U offers graphic
elaborations, then asks: "And it's true, isn't it?"
Professor U has not violated the guideline.1 Even if the
discussion is unwelcome by some students, U's exploratiion
of gender-based and sexual stereotypes is not abusive or
unreasonably recurring or invasive. Nor should classroom
speech aimed at exposing sexual stereotypes be deemed to
interfere "unreasonably" with anyone's work or academic
performance or to create a seriously offensive working or
educational environment. Finally, U's speech comes under
the proviso expressly protecting speech that is "reasonably
designed or intended to contribute to legal or public
education, academic inquiry, or reasoned debate on issues
of public concern," which should be broadly construed to
protect free, challenging, and occasionally disturbing
speech in the rightly honored tradition of academic
freedom.

       4. Sexual harassment by employers who use the
services of the Harvard Law School Career Services Office
or Office of Public Interest Advising. It is forbidden
sexual harassment for any partner, member, or employee of
any law firm or other employer that uses the services of
the Harvard Law School Career Services Office or Office of
Public Interest Advising to

      a. make submission to sexual advances, sexual
overtures, or requests for sexual favors either implicitly
or explicitly a ground for any decision relating to the
employment or evaluation of any member of the Law School
community; or

      b. subject any other member of the Law School
community to any request for sexual favors, any sexual
advance, or any other speech or conduct of a sexual nature
that

      (i) is unwelcome; and

      (ii) is abusive or unreasonably recurring or
invasive; and

      (iii) has the purpose or effect of unreasonably
interfering with an individual's work or academic
performance or creating an intimidating, demeaning,
degrading, hostile, or otherwise seriously offensive
working environment.

     Decisions regarding enforcement of this guideline,
including decisions as to whether and how to proceed with
particular formal complaints, shall be within the
principled discretion of the Placement Committee, based on
factors including, but not limited to, the seriousness of
the alleged violation; the nature and weight of the
evidence supporting a claim of violation; the difficulty of
resolving factual conflicts; and the response of the
employer upon learning of a complaint.

      Commentary. (i) As a professional school, the Law
School appropriately provides a variety of services both to
students seeking employment and to law firms and other
employers who wish to recruit at the Law School Although
all of the conduct, speech, and combinations of conduct and
speech subject to this guideline almost certainly come
within the prohibitions of the criminal or civil law,
including Title VII, this guideline expresses institutional
values as well. Harassment through the speech and conduct
prohibited by this guideline violates understandings on the
basis of which Harvard Law School provides the services and
facilities of the Career Services Office and Office of
Public Interest Advising

      (ii) This guideline should be understood to rely
heavily on primary objective standards, as explained in the
commentary to guideline 3.

      (iii) The protections extended by this guideline are
fully consistent with traditional norms of professional
conduct and of uncensored debate on matters of public and
professional concern. The quid pro quo harassment forbidden
by subsection (a) has no colorable excuse. No speech or
conduct should be deemed violative of subsection (b) if it
is reasonably designed or intended to contribute to
reasoned debate about or analysis of issues of public or
professional concern, or if it would otherwise be protected
by the First Amendment if the state action requirement did
not apply.


               Part II

Guidelines Concerning Sex-Based Harassment by
Discriminatory Conduct

Introduction

      Every member of the Law School community deserves an
educational and work environment that is free from
discriminatory harassment on the basis of gender and sexual
orientation. The Law School catalog includes a "notice of
non-discrimination" that affirms a policy of
non-discrimination with respect to gender and sexual
orientation. Various provisions of federal and state law
also forbid gender-based harassment. The following
guidelines, which define categories of prohibited
harassment on the basis of gender and sexual orientation as
part of the Law School's general non-discrimination policy,
both express institutional values and carry out the
mandates of state and federal law.

      As a reflection of institutional values, the
guidelines respect traditions of academic freedom and
uncensored debate on matters of public concern. They effect
no compromise of freedom of thought, inquiry, or debate.
Rather, the guidelines seek to ensure an environment in
which education, work, research, and discussion are not
corrupted by discrimination and discriminatory harassment
on the basis of gender and sexual orientation.

      The guidelines establish institutionally enforceable
prohibitions, not aspirational standards. They do not
preclude other, non-disciplinary efforts to resolve
interpersonal grievances or to create a hospitable work and
educational environment for all members of the Law School
community, regardless of gender or sexual orientation.

Guidelines

      1. Sex-based harassment through discriminatory
conduct. It is forbidden discrimination for any member of
the Law School community, on the basis of gender or sexual
orientation, to:

      a. subject any other member of the Law School
community to any physical contact or interference with
freedom of movement that has the purpose or effect of
unreasonably interfering with an individual's work or
academic performance or creating an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive working or educational environment at Harvard Law
School; or

      b. deface or intentionally or recklessly damage Law
School property or the property of any other member of the
Law School community with the purpose or effect of
unreasonably interfering with an individual's work or
academic performance or of creating an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive working or educational environment at Harvard Law
School; or

      c. engage in any conduct, speech, or combination of
conduct and speech that would be viewed by a reasonable
person as physically intimidating under the circumstances
and that has the purpose or effect of unreasonably
interfering with an individual's work or academic
performance or of creating an intimidating. demeaning,
degrading, hostile, or otherwise seriously offensive
working or educational environment at Harvard Law School.

      Commentary. (i) This guideline forbids harassment
through physical acts and other acts of intimidation that
are incompatible with the goals and purposes of Harvard Law
School. Wrongs such as these are prohibited by the Harvard
University statement of Rights and Responsibilities,
without reference to the motives of the perpetrators. But
unreasonable physical contact and interferences with
freedom of movement, the defacement and destruction of
others' property, and physical intimidation can also be
forms of harassment on the basis of gender and sexual
orientation. Wrongful acts that are committed from these
discriminatory motives can create or help to create an
intimidating, demeaning, degrading, hostile, or otherwise
seriously offensive working or educational environment at
Harvard Law School for both their immediate victims and for
other persons sharing the immediate victims' gender or
sexual orientation.

      (ii) This guideline relies on a number of primarily
objective standards, including those for determining when
conduct has the purpose or effect of "unreasonably"
interfering with a person's work or academic performance
and creates 8 work or academic environment that is
"intimidating, demeaning, degrading, hostile, or otherwise
seriously offensive."

      (iii) Though appropriately broad on a university
campus, the right of free expression does not encompass a
right to engage in abusive or intimidating conduct or to
deface or intentionally or recklessly damage the property
of others. This guideline prohibits acts of physical
harassment and intimidation that are directed against
people because of their gender or sexual orientation,
regardless of whether the acts express the beliefs or
attitudes of their perpetrators.

       2. Sex-based harassment by discriminatory conduct by
employers who use the services of the Harvard Law School
Career Services Office or Office of the Public Interest
Adviser. It is forbidden sex-based harassment by
discriminatory conduct for any partner, member, or employee
of any law firm or other employer that uses the services of
the Harvard Law School Career Services Office or Office of
the Public Interest Adviser to subject any member of the
Law School community, on the basis of that person's gender
or sexual orientation, to:

     i. physical contact or interference with freedom of
movement that has the purpose or effect of unreasonably
interfering with that person's work performance or
employment opportunities or of creating an intimidating,
demeaning, degrading, hostile, or otherwise seriously
offensive working environment; or

     ii. intentional or reckless damaging or destruction of
property with the purpose or effect of unreasonably
interfering with that person's work or employment
opportunities or of creating an intimidating, demeaning,
degrading, hostile, or otherwise seriously offensive
working environment; or

     iii. any conduct, speech, or combination of conduct
and speech that would be viewed by a reasonable person as
physically intimidating under the circumstances and that
has the purpose or effect of unreasonably interfering with
that person's work performance or employment opportunities
or of creating an intimidating, demeaning, degrading,
hostile, or otherwise seriously offensive working
environment.

      Decisions regarding enforcement of this guideline,
including decisions as to whether and how to proceed with
particular formal complaints, shall be within the
principled discretion of the Placement Committee, based on
factors including, but not limited to, the seriousness of
the alleged violation; the nature and weight of the
evidence supporting a claim of violation; the difficulty of
resolving factual conflicts; and the response of the
employer upon learning of a complaint.

      Commentary. (i) Harassment prohibited by this
guideline violates understandings on the basis of which
Harvard Law School provides the services and facilities of
the Career Services Office and Office of the Public
Interest Adviser

    (ii) This guideline should be understood to rely
heavily on primarily objective standards.

    (iii) The prohibitions established by this guideline in
no way intrude on traditional norms of professional conduct
or of uncensored debate on matters of public concern.


 Part III

Harassment Guidelines: Implementing and Enforcement

     Harvard Law School provides several options for
students, staff, and faculty who believe that they have
been subjected to harassment prohibited by the Law School's
guidelines: (i) seeking informal and confidential
information and advice, (ii) soliciting the aid of the Law
School in attempting to reach a resolution through
informal, non-disciplinary procedures, and (iii) invoking
formal procedures against the alleged harasser.

     The following implementation and enforcement
procedures seek to promote a variety of ends. Information
concerning the Law School's harassment policies should be
widely disseminated. Counseling and support should be
easily available to community members who believe they have
been harassed. The implementation and enforcement
structures aim to encourage the informal resolution of
grievances, with or without the intervention of Law School
officials, under the "informal complaint procedures"
detailed below. Talking or writing to the alleged harasser,
apprising him or her of the impact of his or her conduct,
or asking him or her to stop the harassing behavior will
often bring harassment to a stop.

     Before filing a formal complaint, the complainant must
first go through the informal complaint procedure or obtain
a statement from the official designated in section 2 for
the filing of an informal complaint that such a procedure
would be inappropriate or unproductive in this case.

     An important goal of these guidelines is to encourage
victims of harassment to voice their complaints, whether
informally or formally, without fear of adverse academic or
employment consequences. As provided more fully below,
retaliation of any kind for raising an issue or bringing a
good faith complaint of harassment is strictly prohibited
and constitutes an independent basis for disciplinary
action.

     The following procedures are available to students,
professional and administrative and support staff not
covered by the Harvard Union of Clerical and Technical
Workers ("HUCTW") agreement, and faculty members.
Professional and administrative staff and support staff not
covered by the HUCTW agreement who believe they have been
harassed may also invoke the procedures of the University
Personnel Manual. Support staff members covered by the
Harvard Union of Clerical and Technical Workers should
refer to the procedures provided in that agreement.1

      1. Informal Information and Advice. Any Law School
student or staff or faculty member who has a concern,
inquiry, or complaint regarding prohibited harassment
should feel free to seek information and advice concerning
the Law School's Harassment Guidelines, its formal and
informal grievance procedures, and the counseling and other
services that the Law School makes available to people who
believe they have been subjected to prohibited harassment.
Informal information and advice should be imparted in as
supportive a manner as reasonably possible.

     Sources: Information and advice to students is
available from either a designated Sexual Harassment
Adviser in the Dean of Students' Office or from the
Director of Student Life Counseling. Other members of the
Law School community may contact any Sexual Harassment
Information Representative, at least three of whom shall be
designated each year by the Dean from among sympathetic
faculty and administrative staff.

     Nature of information and advice: The official to whom
an inquiry is directed should provide information regarding
the availability of institutional counseling and support
and the procedures triggered by the filing of an informal
and a formal complaint. Advice should normally be given
about possibilities of resolving difficulties through
informal means that do not require the filing of either a
formal or an informal complaint. Anyone seeking informal
information and advice should be advised, however, that he
or she is entitled to file a formal complaint seeking the
imposition of disciplinary sanctions without pursuing
informal dispute resolution of any kind.

     As explained more fully below, upon request, the
official to whom an inquiry is directed should attempt to
furnish names of Law School students, faculty, or staff who
might be willing to serve as an adviser in the proceedings
initiated by an informal or a formal complaint. Upon
request or if appropriate, advice should also be given
concerning the forms in which informal and formal
complaints might be stated or drafted.

     Anonymity and confidentiality: The person seeking
advice may maintain anonymity and need not, though he or
she may, divulge the name(s) of the alleged harasser(s). No
formal record shall be kept. All communications made in
connection with a request for information and advice shall
be treated as strictly confidential

      2. Informal Complaint Procedures. Anyone who believes
that he or she has been subjected to harassment in
violation of the Law School's Guidelines is entitled to the
assistance of the Law School in attempting to reach an
informal resolution of the grievance.

     Officials to be contacted: Any member of the Law
School community who believes that he or she may wish to
seek the assistance of the Law School in resolving an
informal complaint of prohibited harassment may contact one
of the following persons:

(i) Associate Dean(s): complaint about a faculty member;

(ii) Personnel Director: complaint about a staff member;

(iii) Director of the Career Services Office. or the Office
of Public Interest Advising: complaint about an employer
(In the case of summer employment, it is suggested that the
student also enlist the help of the employer's
representative for administering the summer program.);

(iv) Dean of Students: complaint about a student.

In addition, as an alternative to contacting the officers
identified above, (v) any member of the Law School
community with a complaint about a student, staff member,
or employer may contact the Associate Dean charged with
responsibility for harassment issues. (vi) In unusual
circumstances, any member of the Law School community
wishing to bring an informal complaint against any other
member of the Law School community may contact any of the
officials identified above, regardless of either person's
status.

     An informal complaint against any of the officials
named above should be brought to the Associate Dean charged
with responsibility for harassment issues or, in the case
of a complaint against that Associate Dean, to the chair of
the Administrative Board.

     Timeliness: An informal complaint must be filed within
one year of any alleged violation of the School's
Harassment Guidelines.

     Information: The official contacted should first
ascertain that the person invoking the informal complaint
procedures has been fully apprised of available support
mechanisms, of such entirely informal mechanisms of dispute
resolution as directly contacting the alleged harasser, of
the procedures for filing informal and formal complaints,
and of the nature of the process that such complaints
initiate.

     Nature of informal process: An inform,alL complaint,
which may be made either orally or in writing, operates as
a request to the official contacted either to act as or to
designate an intermediary or mediator to assist in
resolving a grievance by informal means. Ordinarily the
official contacted will personally attempt to aid the
parties in finding a mutually acceptable resolution. With
the consent of both the complainant and the alleged
harasser, the official may refer the matter to a mediator.

     An informal complaint must identify the alleged
harasser(s), if the identity is known, and describe the
incident(s) of alleged harassment with reasonable
specificity. The complainant must also indicate any steps
that he or she has already taken to arrive at an informal
resolution.

     Upon receipt of an informal complaint, the official
contacted (or the person to whom the matter has been
referred by the official contacted, as provided above)
shall take such steps as he or she deems appropriate to
reach an informal resolution. These may include such
informal investigation as the official thinks resolution.
These may include such informal investigation as the
official thinks necessary or appropriate to develop an
understanding of the complaint and the incident(s) or
behavior that may have triggered it.

     At the earliest opportunity that the official regards
as reasonable and appropriate, the official should notify
the alleged harasser of the informal complaint, including
the name of the complainant and the nature of the alleged
harassment. The alleged harasser shall be given the
opportunity to respond orally or in writing to the
grievance. The official may supervise an exchange of views
in writing between the parties in order to facilitate a
mutually acceptable resolution. The exchange may be
conducted in person if both parties so agree.

     If appropriate, the official should inform the alleged
harasser of his or her options, rights, and obligations
under the Law School's substantive and procedural
harassment guidelines. The official may apprise the alleged
harasser of counseling or other relevant services available
through the Law School. If appropriate, the official should
also give notice of the Law School policy providing that no
person shall be subject to harassment, intimidation, or
retaliation of any kind for having brought a good faith
complaint of sexual harassment, whether formal or informal.

     Confidentiality: In conducting any informal
investigation and in acting as an intermediary between the
informal complainant and the alleged harasser, the official
contacted or the person to whom the matter is referred
should maintain as much confidentiality as is reasonably
practicable under the circumstances. It is expected that
parties pursuing informal grievance procedures will
normally attempt to maintain reasonable confidentiality as
well. Where appropriate, the official contacted or the
person to whom a matter is referred may try to secure the
agreement of the parties to mutually acceptable
confidentiality norms.

     Resolution or conclusion: An informal complaint will
be deemed satisfactorily resolved when both parties state
their agreement to an outcome in a form that is mutually
acceptable and so advise the official contacted or the
person to whom the matter is referred. The incident(s)
providing the basis for an informal complaint that is
satisfactorily resolved may not subsequently be the subject
of any formal complaint by the same complainant against the
same alleged harasser, except in cases involving a breach
of the informal settlement agreement by the alleged
harasser or continuing harassment.

     An informal complaint proceeding may also be concluded
when (i) the complainant notifies the official contacted or
the person to whom the matter is referred that he or she
wishes to withdraw the informal complaint; (ii) the
official contacted or the person to whom the matter is
referred notifies both parties, in writing, that the
informal complaint appears so lacking in merit that further
efforts at informal resolution are unwarranted; or (iii)
the official contacted or the person to whom the matter is
referred notifies both parties, in writing, that in his or
her judgment further efforts at informal resolution would
be futile and are therefore unwarranted. A conclusion that
an informal complaint lacks merit or that further efforts
at informal resolution would prove futile shall have no
preclusive effect or evidentiary weight in any subsequent
proceeding initiated by a formal complaint.

     Timetable: Conclusion of an informal complaint
proceeding should ordinarily be sought within three weeks
of the beginning of informal proceedings. In any event,
after one month from the beginning of the informal
proceedings, the complainant shall have the right to
institute formal proceedings, unless both parties wish to
continue further informal proceedings.

     Recordkeeping: No formal record of the proceedings of
an informal complaint procedure shall be kept. Nonetheless,
the person contacted and any person to whom an informal
complaint is referred may keep such informal notes as he or
she deems appropriate. Upon the resolution or conclusion of
informal complaint proceedings, any such notes shall be
transferred to the Dean or a designated officer in the
Dean's office to allow institutional monitoring of
enforcement of the Law School's Harassment Guidelines.
Except as provided below, however, the identity of the
parties shall be treated by the Dean or the designated
officer in the Dean's office as strictly confidential, and
the notes shall be treated as privileged in any further
proceeding within the Law School.

     Subsequent proceedings: The official contacted and any
person to whom an informal complaint is referred shall be
precluded from giving oral or written evidence in any
hearing on or inquiry into any formal complaint based on
the same allegations of harassment as were included in the
informal complaint, except concerning the date on which an
informal complaint was filed, whether the complaint was
resolved in a way mutually acceptable to the parties, and
the terms of any informal settlement agreement. The content
of any communication between the parties, or between the
official contacted and one or both of the parties, that is
made in connection with proceedings on an informal
complaint shall not be allowed into evidence in such a
subsequent proceeding. Nonetheless, if the official
contacted or any person to whom a matter is referred
believes that a particular person has manifested a pattern
of harassment not adequately corrected by an informal
resolution, he or she may so advise an appropriate Law
School official. In addition, if the notes provided to the
Dean or the designated official in the Dean's office should
evince a recurring pattern of harassment by a particular
person or indicate an unusual risk of continuing
violations, the Dean or designated official in the Dean's
office may take such action as he or she deems appropriate
under the circumstances.

      3. Formal complaint Procedures. Anyone who believes
that he or she has been the victim of harassment prohibited
by Harvard Law School guidelines is entitled to file a
formal complaint. Unlike an informal complaint, a formal
complaint seeks a formal, institutional determination that
a violation has occurred and the imposition of formal,
disciplinary sanctions upon the alleged harasser.

     Timeliness: A formal complaint must be filed within
one year of the alleged incident or incidents of alleged
harassment, except that this period shall be tolled during
the pendency of a timely filed informal complaint.

     Decisionmakers: Complaints shall be filed with the
following decisionmakers, depending on the status of the
alleged harasser:

      (i) Dean: complaint against a faculty member or the
administrative dean;

      (ii) Administrative Dean: complaint against a staff
member;

      (iii) Placement committee: complaint against an
employer who uses the placement facilities of the Law
School;

      (iv) Administrative Board: complaint against a
student.

No individual who has participated as the official
contacted or has been consulted by that official during
proceedings based on an informal complaint shall sit as a
member of or otherwise advise the formal decisionmaking
body.

     Procedural rules: Allegations of harassment in
violation of the Law School's Harassment Guidelines shall
be considered according to the rules and procedures of the
above decisionmaking bodies, as set forth in Appendices
A-D, except that the substantive enforcement jurisdiction
of those bodies shall be extended if necessary to encompass
all alleged violations of the Law School's guidelines and
the additional specific procedures described below shall
also apply and in cases of conflict shall prevail.

(i) Formal Complaint: A formal complaint of sexual
harassment shall state the name(s) of the alleged
offender(s) (if known) and shall specifically describe the
incidents of alleged harassment. The complaint should
identify the dates and places of such incidents with
reasonable specificity and should list any known witnesses.
A formal complaint shall be signed and dated by the
complainant.

(ii) Confidentiality: Unless and until a disciplinary
sanction is imposed, the decisiomnaker shall maintain as
much confidentiality as is reasonably practicable under the
circumstances. In particular, the decisionmaker should
generally strive to keep confidential except from the
parties and the Dean, the identity of the parties, and the
content of all documents, conversations, and hearings
pertaining to the complaint. Nonetheless, upon the request
of either party, any hearing shall be videotaped, and both
the complainant and the alleged harasser shall be entitled
to be accompanied by up to six family members or friends in
addition to a designated representative or adviser.
Moreover, upon the request of either party, the
decisionmaker may conduct all or part of any hearing in
public if the public interest in justice or the appearance
of justice so requires. After a sanction is imposed,
release of the record or of information included in the
record shall be at the discretion of the decisionmaker.
Records or their contents may also be disclosed if a
harasser is subsequently found in any formal proceeding to
have committed any additional act(s) of sexual harassment,
in which case the records of prior proceedings may be
treated as relevant to the imposition of sanctions only.
Nothing in this section is intended to preclude the
disclosure of the record in a formal proceeding to other
Law School or University officials as required in related
proceedings, including proceedings to review decisions or
act upon recommendations to impose sanctions .

(iii) Notice: Each party shall have prompt notice of, and
the opportunity to review and respond to, all documents or
communications filed with the decisionmaker by the other
party. The decisiomnaker shall keep both parties informed
on a timely basis of the status of the complaint and the
timetable for resolving it.

(iv) Timetable: The decisionmaker shall establish a
timetable for each case to be followed insofar as
reasonably possible in order to assure a prompt resolution
of the formal complaint procedure.

(v) Special investigators or hearing officers: Where
appropriate, the decisionmaker shall be entitled to appoint
a special, impartial investigator for purposes of
fact-finding or a special, impartial hearing officer or
panel for Purposes of resolving a complaint.

(vi) Written proceedings: The decisiomnaker shall
ordinarily conduct fact- finding upon a written record
consisting of a statement by the complainant, a statement
from the respondent, and reply statements from each party
if desired. Written statements from witnesses may be
admitted. If so, the parties are entitled to an opportunity
to review and reply to witnesses' statements. If an
independent investigator is appointed, the record shall
also include a statement from the investigator and such
reply statements as the parties may wish to file.

(vii) Hearings: A hearing in person shall be held if either
party requests one or if the decisionmaker finds that a
hearing is essential to full and fair resolution of the
complaint. The decisionmaker shall inform both parties of
the specific procedures to be followed during the hearing.
At any hearing so held, both the complainant and the
:respondent shall be allowed to be present at all times.

(viii) Burden of proof: Formal disciplinary sanctions shall
be imposed only upon clear and convincing evidence.

(ix) Sanctions: Upon the decisionmaker's finding a
violation, sanctions appropriate to the seriousness of the
offense shall be imposed. In deciding the appropriate
sanction, the decisionmaker may consider the degree of
intent, the degree of harm, other acts of harassment (if
any) by the respondent, the need for deterrence, and such
other factors as reason and justice may require.

(x) Enforcement discretion of the Placement Committee: No
rule of procedure shall be construed to eliminate or reduce
the principled discretion of the Placement Committee in
enforcement matters, as recognized by the substantive
guidelines prohibiting harassment by employers that use the
services of the Career Services Office or Office of the
Public Interest Adviser

      4. Further general policies. The resolution of
grievances pertaining to harassment under the above
guidelines shall be pursued in accordance with the
following general policies.

     a. Duty of good faith. Any member of the Law School
community is liable to sanction for knowingly or recklessly
bringing a false complaint of institutionally sanctionable
conduct against another member of the Law School community.

     b. Non-retaliation: No person shall be subject to
harassment, intimidation, or retaliation of any kind for
having brought a good faith complaint of prohibited
harassment, whether formal or informal. Any such
retaliation shall provide a separate ground for complaint
'against the retaliator regardless of the outcome of the
harassment complaint.

     c. Representation. advice. and counsel: Any person
seeking information or advice about the Law School's
Harassment Guidelines, any informal or formal complainant,
and anyone alleged to have engaged in harassment may be
accompanied, aided, or represented by a friend, an adviser,
or by counsel at any stage of the process. Upon request,
the Harassment Adviser in the Dean of Students' Office, the
Director of Student Life Counseling, or a Harassment
Information Representative will endeavor to provide names
of Law School students, staff, or faculty who might be
willing to serve as advisers. The Law School will not
ordinarily furnish counsel or pay attorneys' or advisers'
fees. Nonetheless, in proceedings on formal complaints, the
decisiomnaker shall have discretion to provide for the
payment of the reasonable attorneys' fees of either a
complainant or an alleged harasser or both if
considerations of justice so require.

     d. Education and training: The Dean's Office, working
with the Dean of Students and the Director of Personnel
Services, as well as with the appropriate University
bodies, will endeavor to provide training on issues of
harassment to all contact persons and decisionmakers named
in these guidelines.

     e. Designation of personnel: The Dean shall designate
at least three faculty members or administrative staff to
serve as the Law School's Harassment Information
Representatives, charged with responsibility to provide
informal and confidential information and advice on matters
relating to prohibited harassment to any member of the Law
School community, as discussed above. If the Dean chooses
not personally to collect, maintain, and review any
informal notes kept by officials contacted in informal
complaint proceedings and the records of formal
proceedings, the Dean shall also designate an official in
the Dean's office to perform these functions. The Dean of
Students shall designate a Harassment Adviser

     f. Reporting: The Dean or a designated official in the
Dean's office shall be informed of the initiation and
outcome of all formal complaint proceedings in order to
ensure adequate recordkeeping and coordination.

 ENDNOTES for Part I

1 Not all members of the committee have seen this example,
but all; who have read it concur in this judgment

ENDNOTES for Part III

1 The procedures available to staff covered by the HUCTW
agreement are not subject to faculty decision, but stem
from the HUCTW contract. Although these guidelines do not
of their own farce extend to complaints by staff covered by
the HUCTW agreement, nothing in the guidelines would
preclude their incorporation in, or adoption pursuant to
procedures that might be provided by, the union contract.