LISBON 2022

Anti-Harassment & Anti-Discrimination Policy

Anti-Harassment & Anti-Discrimination Policy/Letter to LSA Members

Law & Society Association Anti-Discrimination and Anti-Harassment Policy

1. LSA Commitment to a Culture Free of Discrimination and Harassment

The Law & Society Association (LSA) is committed to providing a safe, inclusive, and welcoming environment for all participants at its conferences, events, and virtual meeting places. LSA therefore strives toward a culture free of discrimination and harassment, especially discrimination or harassment on the basis of actual or perceived sex, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, veteran status, or their intersection. Discrimination against or harassment of colleagues, students, or other conference participants undermines professional norms that promote scholarly exchange and professional development. Such discrimination or harassment also undermines equal access to and enjoyment of the scholarly activities of LSA. “Participant” in this policy refers to anyone present at LSA meetings or events, including staff, contractors, vendors, exhibitors, venue staff, LSA members, and all other attendees. The LSA policy is intentionally broader than most antidiscrimination laws to create an environment conducive to scholarly exchange.

One of the central tenets of law and society scholarship is that policies alone rarely guarantee social change. Therefore, we couple our anti-discrimination and anti-harassment policy with a request that all LSA participants proactively help to establish a culture of respect in which all participants feel welcome and included. Such a culture will not only help to ensure that all participants feel welcome but also provide the best possible environment for intellectual exchange and professional development. Specifically, we request that all participants be aware of situations, actions, or language that may have the effect of making others feel unwelcome or disrespected and, if necessary, take action when such situations, action, or language are observed. We encourage all participants to be reflective about their language and to strive to ensure that their biases, both explicit and implicit, are not contributing to an environment that may be perceived by some as hostile to their group.

LSA provides ombuds and intake officers to assist any conference participant who witnesses or experiences harassment or discrimination. In the sections below, we define discrimination and harassment, we offer suggestions for helping to create a culture free of discrimination and harassment, and we elaborate procedures for contacting an ombuds and for filing a complaint.

2. The LSA Anti-Discrimination and Anti-Harassment Policy

LSA prohibits discrimination or harassment, including but not limited to discrimination or harassment on the basis of actual or perceived sex, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, veteran status, or their intersection. This policy does not prohibit affirmative action, which in some situations may be necessary to avoid discrimination. LSA encourages anyone who experiences harassment or discrimination to use one of the complaint options outlined in this policy.

3. What is Discrimination?

Discrimination includes unequal treatment of participants on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, or veteran status, or their intersection. Discrimination also includes actions or comments that have an unequal effect on participants on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, legal status, criminal record, or veteran status, or their intersection. Discrimination also includes harassment, as defined below, on the basis of actual or perceived sex, gender, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, veteran status, or their intersection.

4. What is Harassment?

Harassment includes all actions or comments that are reasonably experienced as intimidating, harassing, abusive, derogatory, demeaning, or consistently marginalizing. Harassment also includes unwanted touching, harassing photography or recording, sustained disruption of talks or other events, and the real or implied threat of physical harm. Harassment is uniquely harmful when actions or comments are related to actual or perceived sex, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, legal status, criminal record, veteran status, or their intersection. Harassment based on gender, which has the effect of making someone feel demeaned or marking them as different in a negative way on the basis of their gender can constitute discrimination because of sex, and can but need not also include sexual harassment as definedbelow.

5. What is Sexual Harassment?

Sexual harassment is a form of harassment. Sexual harassment includes severe or pervasive unwelcome solicitation of physical or emotional intimacy or touching, as well as severe or pervasive commentary or nonverbal conduct that is sexual in nature, regardless of the gender of the complainant. To be sexual harassment, the harassment need not involve sexual desire.

6. What is the Standard for Evaluating Claims of Discrimination or Harassment?

Under this policy, discrimination and harassment are defined not by the intent of the perpetrator but rather from the perspective of a reasonable person in the complainant’s position, using a preponderance of the evidence standard.

7. What to Do to Help to Create a Culture Free of Discrimination and Harassment

All participants can play a role in creating an environment free of harassment and discrimination by following the norms of professional respect that help to promote honest intellectual exchange and quality scholarship. Participants should be proactive about mitigating harm to other conference participants. Participants can be proactive by: (1) recognizing that the power differences inherent in academia and in society generally can inhibit less powerful parties such as students and junior scholars from voicing their objections to offensive comments or behavior; (2) recognizing that harassment may take the form of subtle forms of conduct, including unintentional conduct, that are harmful to groups that lack societal power; (3) taking affirmative steps to include others in conference conversations or activities; and (4) being an active bystander if you observe potential harm to another participant.

8. What to Do if You Experience Discrimination or Harassment at any LSA Event

LSA provides two places to start to receive help regarding any type of discrimination or harassment prohibited by LSA policy. First, the ombuds of the LSA are available for informal confidential consultation about a wide range of concerns, including but not limited to discrimination or harassment. Second, the Discrimination or Harassment Complaint Procedure provides a more formal option for reporting and seeking formal resolution of incidents of discrimination or harassment. Each option is described separately in the next sections. The quickest way to report an incident and to get help addressing it, especially during an LSA meeting, is to contact an ombuds. However, participants are free to file a complaint without contacting an ombuds. The LSA ombuds may be contacted via email atintakeofficer@lawandsociety.org.

9. The Role of the Ombuds

The ombuds play no role in LSA’s formal complaint procedure, but can offer confidential guidance about what constitutes discrimination or harassment. The ombuds can also explain LSA options for reporting discrimination or harassment and outline other avenues for pursuing such a complaint, such as state or local government, human rights or law enforcement agencies, the federal Equal Employment Opportunity Commission, or the U.S. Office for Civil Rights. If appropriate and if the complainant requests it, the ombuds may attempt conciliation. The ombuds cannot provide legal advice, but can offer support and guidance even if no further action is taken.

LSA recommends that the complainant first consult with the ombuds for clarification about the entire range of their options. This consultation is confidential and the details of such a conversation will not be reported to any administrator, officer, or committee of the LSA, except as required by applicable law. At all times, the role of the ombuds is entirely independent of any complaint you may decide to pursue through the following LSA complaint procedure. The ombuds will not keep any written records of complaints or consultations. Ombuds can be reached via email that will be provided. In the event that the ombuds is involved in or has a relationship with any party to the dispute, the ombuds will be recused after contacting another ombuds to address the issue.

10. The Discrimination or Harassment Complaint Procedure

Any participant in LSA may file a complaint regarding an incident that occurred at an annual meeting of the LSA or any other LSA event within the past two years. A complaint may be filed by contacting the intake officer for the Discrimination or Harassment Complaint Committee via email to intakeofficer@lawandsociety.org. In the event that any member of the Committee has a prior relationship to any party involved in the complaint or is named in the complaint, that person will be recused from participation. In most cases, complaints should be in writing but a complainant may relate a complaint orally.

The chair of the Complaint Committee will contact the individual whose conduct is at issue in order to hear his or her perspective. The Complaint Committee will also conduct an appropriate investigation, which includes interviewing both parties and any witnesses to the incident identified by either party. The Committee will write a brief report stating its finding and determination, and the factual basis for the decision. The Committee will also allow the respondent and complainant to respond to the report in writing. In reaching conclusions about whether harassment or discrimination has occurred, LSA will not look to U.S. federal case law because much law and society scholarship indicates that federal case law tends to find that only the most egregious of acts constitute harassment and tends to overlook meaningful evidence in assessing discrimination. Instead, the Committee will consider whether the discriminatory or harassing conduct would have negatively affected the experience or experiences at LSA for a reasonable person in the complainant’s position, using a preponderance of the evidence standard. The Committee will then, if appropriate, determine sanctions. When a participant is found to have engaged in discrimination or harassment, the possible sanctions for that person are:

  1. Issuing a warning to cease the discriminatory or harassing behavior and retaining a record of that warning in case of future violations;
  2. Requiring the respondent to appear before the Complaint Committee and LSA Presidentto learn about the consequences of their behavior and about likely consequences of similar behavior in the future;
  3. Notifying the respondent’s home institution of the violation;
  4. Termination of current LSA conference participation and any LSA responsibilitiesorappointments held;
  5. Barring the person from assuming any future governance positions withinLSA;
  6. Barring the person from participating in future LSA conferences or events;and/or
  7. Revoking LSA membership

The Chair of the Complaint Committee will notify both parties of the Complaint Committee’s decision. Should either party wish to appeal, the Executive Committee of the LSA and the Chair of the Complaint Committee will hear the appeal. Any party who is involved in the dispute or closely related to a party involved in the dispute would be recused. Decisions of the ad-hoc appeals committee are final.

11. Recordkeeping

The LSA’s Executive Officer will prepare two annual reports. The first report will contain general information about the number and types of complaints received. No names will be included in this report. The report will be provided to the LSA board and will be available by request to any LSA member.

The second report will describe each complaint and action taken, with all names included. This report will be held as a confidential record in the LSA’s national office and may be consulted only by members of the LSA Executive Committee and members of the Complaint Committee in the course of their official duties, or as otherwise required by law

12. Policy Review

LSA should conduct climate surveys of its membership and of conference attendees every 2 years to determine the prevalence of discrimination and harassment. LSA will review both climate survey data and complaint records every 2 years to identify any weaknesses in the policy and will make changes to bring LSA closer to having an environment free of discrimination and harassment.

Letter to LSA Members

Dear LSA Members,

President Kim Scheppele asked me to write a memo explaining LSA’s new Policy on Discrimination and Harassment, which was passed by the Board of Trustees at their annual meeting in Toronto.

I would first like to thank the Taskforce on Discrimination and Harassment, which was convened to write this policy this past March. The taskforce members included: Catherine Albiston, Lauren Edelman (chair), Catherine Fisk, Liora Israel, Angela Onwuachi-Willig, and Diana Reddy. It is certainly strange to have a taskforce comprised of people all at one university, but this seemed to make sense because time was short and Berkeley happened to have a lively group of work law scholars who could work together to craft the policy. It was an especially challenging task since most of us have been strong critics of the largely symbolic policies that so many organizations have adopted or revamped in the wake of the #MeToo movement. The policy we recommend differs from other association policies because it takes into account the insights of law and society scholarship on discrimination, harassment, and organizational policies.

1. Policies alone won’t fix the problem but people can work toward an inclusive culture

First, we considered law and society scholarship that suggests that policies alone are unlikely to fix the problem of discrimination and harassment (e.g., Gusfield 1986; Onwauchi-Willig 2005; Albiston 2010; Edelman 2016; Berry et al. 2017). In particular, policies have a limited impact where cultural stereotypes and scripts result in many people lacking awareness of how their actions or words may affect others, especially those who have historically lacked social, political, and economic clout (see e.g., Krieger 1995; Fiske 1998; Onwachi-Willig 2005; Carbado and Gulati 2013 on discrimination, and Lach and Gwartney-Gibbs 1993; Cortina and Berdahl 2008 on harassment).

Thus, the most unusual aspect of the LSA policy is that it opens with a statement that outlines LSA’s commitment to an inclusive environment and requests that all LSA members and conference participants actively participate in creating an inclusive environment. To help create such an environment, we request that all participants be aware of situations, actions, or language that may have the effect of making others feel unwelcome or disrespected and, if necessary, take action when such situations, action, or language are observed. We encourage all participants to be reflective about their language and to strive to ensure that their biases, both explicit and implicit, are not contributing to an environment that may be perceived by some as hostile to their group. We recognize that including such a request in the LSA policy is no panacea, yet we hope that it will help to raise awareness and engage the goodwill of LSA participants in a way that will help to reduce discrimination and harassment.

2. Civil rights law addresses only a fraction of harmful actions but LSA can do more

Second, we considered the many critiques of U.S. judicial doctrine on discrimination and harassment. U.S. courts tend to find only the most overt and egregious behaviors as violating law. In discrimination cases, U.S. courts in most cases require that the plaintiff establish that the defendant intended to discriminate (Freeman 1990; Krieger 1995; Edelman 2016). While this approach made some sense in addressing the overt intentional discrimination typical of the Jim Crow era, it fails to address the more subtle forms of discrimination that exist today, which include structural barriers that place members of traditionally disenfranchised groups at a disadvantage, stereotypical expectations based on group status, informal networks that tend to exclude members of less powerful groups (such as “old boys networks”), implicit biases, and language and actions that are experienced as intimidating and harassing by members of minority groups or women (Crenshaw 1989; Krieger 1995; Onwauchi-Willig 2005; Carbado and Gulati 2013; Edelman 2016). U.S. courts regularly overlook meaningful evidence of discrimination by finding racist comments to be “stray remarks,” assuming that the “same actor” who hires a person of color or a woman cannot also discriminate, and that an employer who bases a discriminatory action on mistaken assumptions nonetheless has “honest beliefs” (Krieger 1995; Gertner 2012). In sexual harassment cases, U.S. courts tend to overlook meaningful evidence of harassment especially when organizations have antiharassment policies and grievance procedures in place, irrespective of the effectiveness of those procedures (Edelman 2016). Thus, in the vast majority of sexual harassment cases, plaintiffs are left without legal redress.

For all these reasons, we decided to define discrimination and harassment more broadly than does U.S. federal law and to suggest a standard for evaluating complaints that is less dependent on the intent of the perpetrator. Broadening the policy beyond the categories protected by U.S. federal law (race, ethnicity, sex, religion, national origin, age, veteran status, disability) and some common categories protected by some local jurisdictions (sexual orientation, criminal record) does create a risk of failing to acknowledge the particularly detrimental effects of discrimination or harassment on people of color, women, and other groups who have suffered disproportionately. At the same time, however, a broader policy recognizes LSA strives to be an international organization and that the categories protected by U.S. law may not cover groups that have suffered discrimination in other countries. Further, harassment and discrimination are generally undesirable even when focused on groups that do not enjoy legal protections (e.g. discipline, methodological approach, institution).

Thus, the LSA policy includes a broad prohibition of discrimination and harassment coupled with explicit mention of the categories of people who, at least in the U.S., have been uniquely harmed by discrimination or harassment. We included socioeconomic status in this list even though we are not aware of any laws protecting people on this basis because it has historically been a dimension of discrimination in many countries, including the U.S. The LSA policy thus prohibits discrimination and harassment including but not limited to actual or perceived sex, gender identity, race, ethnicity, sexual orientation, disability, socioeconomic status, age, religion, national origin, citizenship status, criminal record, veteran status, or their intersection.

3. Reporting harassment or discrimination is difficult but LSA strives to make it easier

There is a substantial body of law and society literature that suggests that complaint procedures can easily be ineffective because many victims of harassment or discrimination are extremely reticent to complain (e.g., Bumiller 1978; Marshall 2005; Albiston 2010; Berrey, Nielsen & Nelson 2017). In light of that literature, the LSA policy strives to make it as easy as possible for people who experience discrimination or harassment to complain and that they should have multiple options for complaining. The new LSA policy has two prongs. Anyone who experiences discrimination or harassment may use either prong or both at their discretion.

The first is a more informal system involving ombuds who can assist any participant confidentially, can offer advice about options and how to proceed, and if appropriate, may attempt conciliation. Ombuds are also available for people who witness harassment or discrimination. LSA will in the future make sure that at least two ombuds are available by email and cell phone at all times during LSA meetings.

Perhaps more than most associations, LSA probably has a number of members who have training in being an ombuds so President Scheppele will shortly be sending out an inquiry to find members willing to serve in this capacity.

The second is a more formal procedure, which involves an investigation and possible sanctions. President Scheppele will also create a new Complaint Committee, which will investigate and respond to any formal complaints filed by LSA participants. One or two members of the Complaint Committee will be designated as Intake Officers, and will available by email or phone during future LSA meetings. To avoid the problems highlighted above regarding the U.S. courts’ standards for evaluating discrimination and harassment, the Complaint Committee will evaluate complaints in light of the experience of a reasonable person in the complainant’s position, using a preponderance of the evidence standard, rather than on the intent of the perpetrator.

The entire LSA policy can be found here. We encourage all participants in LSA meetings to join in helping to make LSA meetings and other events as inclusive and free of discrimination and harassment as is humanly possible.

Sincerely,

Lauren Edelman, Chair
Ad hoc Taskforce on Discrimination and Harassment

References

Albiston, Catherine R. Institutional Inequality and the Mobilization of the Family and Medical Leave Act. New York: Cambridge University Press (2010).

Berrey, Ellen, Laura Beth Nielsen, and Robert L. Nelson, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality. Chicago: University of Chicago Press (2017).

Bumiller, Kristin. The Civil Rights Society: The Social Construction of Victims. Baltimore: Johns Hopkins University Press (1988).

Carbado, Devon W., and Mitu Gulati. Acting White?: Rethinking Race in Post-Racial America. New York: Oxford University Press, 2013.

Cortina, Lilia M. and Jennifer L. Berdahl. “Sexual Harassment in Organizations: A Decade of Research in Review.” Pp. 469-96 inThe Sage Handbook of Organizational Behavior Edited by Julian Barling and Cary L. Cooper. Thousand Oaks, CA: Sage (2008).

Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum (1989): 139.

Edelman, Lauren B. Working Law: Courts, Corporations, and Symbolic Civil Rights. Chicago: University of Chicago Press (2016).

Fiske, Susan T. “Stereotyping, Prejudice and Discrimination.” In D.T. Gilbert, S.T. Fiske, and G. Lindzey (eds.), Handbook of Social Psychology New York: McGraw-Hill (1998).

Freeman, Alan. “Antidiscrimination Law: The View from 1989.” Tulane Law Review 64, no. 6 (1990): 1407-42.

Friedman, Lawrence M. The Legal System: A Social Science Perspective. New York: Russell Sage (1975). Lach, Denise H. and Patricia A. Gwartney-Gibbs, “Sociological Perspectives on Sexual Harassment and Workplace Dispute Resolution.” Journal of Vocational Behavior 42:102-115 (1993)

Gertner, Nancy. “Losers’ Rules.” The Yale Law Journal Online 122: 109-24 (2012).
Krieger, Linda Hamilton. “The Content of Our Categories: A Cognitive Bias Approach to Discrimination

and Equal Employment Opportunity.” Stanford Law Review 47(6): 1161-248 (1995).
Marshall, Anna-Maria. “Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual

Harassment Policies.” Law & Society Review 39(1): 83-123 (2005).

Onwuachi-Willig, Angela and Mario L. Barnes, “By Any Other Name: On Being Regarded as Black, and Why Title VII Should Apply Even If Lakisha and Jamal Are White,” Wisconsin Law Review 2005: 1283 (2005).

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