Introduction

Latest incidents demonstrate that the struggle against sexual harassment is still dismally relevant. It is because sexual harassment is still prevalent, despite decades of legal reform and activism. Similarly, it remains an issue, as the need for a proper theoretical structure to direct action is still as critical as it was many years ago. With the election of Trump and the emergence of #MeToo movement, a time has come to reenergize the theory against sexual harassment. The world is seeing an exceptional cultural resistance movement against sexual harassment, a movement that would bring about real change. It is encouraging to see the tenacity, courage, and wisdom of men and women who have openly questioned the sexual harassment in an endeavor to alter the status quo.

Taking into consideration the recent research indicating that sexual harassment is rampant in the educational institutions, the paper considers the relationship between athletic and sexual harassment. Accordingly, the paper interrogates the responsibility of athletic directors in the prevention of sexual harassment in their initiatives as well as offensive sexual advances done outside the athletic department by individuals affiliated with the initiatives. It is would necessary to assess whether athletics offers a link between perpetrators and sexual harassment because of social status and power associated with males concerned with athletics. Similarly, the paper seeks to make sense of sexual harassment, training programs implementation and abiding by institutional policies to prevent the occurrence of sexual harassment in the athletic departments.

Statement of Issue

About four decades ago, legal experts examining the issue of sexual harassment came full circle. For instance, Catherine MacKinnon concentrated on the wrong of conduct in the late 1970s by justifying the reason courts need to reflect upon sexual harassment as an embodiment of sex discrimination. The research on the topic is critical in enabling the courts and policymakers to understand that sexual harassment has normalized the sexualized discrimination of women in athletics.

Additionally, other people have studied the same issue in detail before. However, since at the time of the earlier research, the studies on sexual harassment in sports were scarce. For that reason, most of the studies primarily relied on the information gathered from studies on sexual harassment in the education system only and at the workplace. Accordingly, it then becomes questionable whether such data should be applicable in the context of sexual harassment in athletics. Therefore, it makes it necessary to conduct further research, as new studies had emerged with more relevant data than it was the case when prior studies were conducted.

Similarly, with the latest research, it is imperative that sexual harassment does not have a single impact. There are numerous effects based on the examined domain and the point in the undertaking where evaluations are conducted. The studies indicate that, apart from the sexual harassment effect itself, the after-impacts are usually affected by disappointment in the stress and in the manner others respond to the stress-harassment life alterations such as litigation trauma, loss of jobs, and moves.

Literature Review

According to Jaime, Stocking, Freire, Perkinson, Ciaravino, & Miller (2016), sex-related harassment, which is sometimes termed as student sex discrimination, is a serious and real issue in athletics. The sex-based harassment term implies to sex-based harassment and the conventional perception of sexual harassment. Even if it does not entail intercollege sports, Franklin v. Gwinnett County Public Schools 503 U.S. 60 (1992) established the sexual harassment recognition by the Supreme Court, as enshrined under Title IX. The matter included a female student Franklin that brought a claim under the Title IX against administrators and the school district following a sexual harassment incident by a coach, which the school district had hired. The Court cited Meritor Savings Bank v. Vinson 477 U.S. 57 (1986) and determined that Title IV sexual harassment standards at workplaces should be employed in the school setting. According to Kavanagh, Brown, & Jones (2017), following the decision in Franklin case, the courts have held that a student-athlete while asserting sex harassment claims must prove that he or she is a member of the group under protection; and was exposed to unnecessary harassment. One must also establish that the harassment was sexual and that such sexual offense was adequately extensive or extreme to improperly change the education circumstance and establish an abusive educational situation. Similarly, the plaintiff should demonstrate that some justification for institutional responsibility has been created as per Morse v. Regents of Univ. of Colo., 154 F.3d 1127 (10th Cir. 1998).

O’Brien (2018) asserts that the courts have had a difficult time explaining the content of harassment “based on sex” sexual harassment claim as enshrined under Title IX, adequate for hostile or quid pro quo matter, and assessing the spectrum of the school’s responsibility for the harassment behavior of one its staff.

The Supreme Court dealt with the issue of the institution’s liability for the harassment behavior outlining a particular standard for institutional responsibility when staffs behave in a harassing manner. The court acknowledged in the case of Gebser v. Lago Vista Independent School District 524 U.S. 274 (1998) that whereas Title VII principles are employed for various factors of the legislation, Title VII cannot explain the shape of an institution’s responsibility of its staffs. Johansson & Lundqvist (2017) assert that the court stuck on the swift remedial plan in Title IX and established that the institution was not responsible for the sexual offense, as there was no one with authority to remedy was aware of the harassment. The principle applies at a high school level of education to sexual harassment by coaches, administrators, and teachers. Even though the Supreme Court expressed an institutional responsibility principle in Gebser case, the explanation of enforceable, unfriendly intimidation “based on sex” within the legislation in the context of education is ambiguous, especially when such claims relate to the conduct of a coach on a female athlete  (Crosset, 2015).

An ironic effect of Title IX, which aggravates the prospective issue of sexual intimidation is that, whereas the percentage of girls taking part in college and high school sports has swollen, the number of female coaches has reduced. Women coached more than 90 percent of all female athletes before the enactment of Title IX in 1972. Accordingly, the percentage of college women athletes coached by female coaches dropped to 49 percent by 1994. The possibility and opportunity for sexual harassment have escalated due to the increase of men coaches training female students both in high school and colleges.  Nevertheless, it is imperative noting that male coaches are not exclusive offenders in matters relating to sexual harassment. Accordingly, women coaches are as guilty as their counterparts for the same violations.

Similarly, Fasting, Sand, & Sisjord, (2018) hold that since the onus to indicate that the behavior was not welcome is on the victim, the unwelcomeness standard is erratic when applied to Title IX claims. Hence the general assumption that most of the sexual encounters as consensual should not be applicable in college and high-school athletic settings. For example, schools need to be particularly worried about the issue, as athletes could be motivated to believe that the coach has complete power over the athletic career success while studying. Therefore, an athlete is prone to the fear that objecting to such sexual harassment would effectively stop the act, or the athlete could be under the notion that he or she would be identified and mistreated out of retaliation by the coach. Given elements such as control and power come into play in a relationship between an athlete and the coach, to remove the prospect of a woman athlete turning down or “freely” consenting to a sexual relationship, the onus of proof should be placed upon the coach to demonstrate the welcomeness. Vogel (2018) states that, in the current state of the law, the “unwelcomeness” idea assumes that when a coach makes a sexual advance, the athlete is entirely in control of the situation, and can, therefore, either turn it down or accept it. In other words, the law is to the effect that there is no harm in an individual asking for a sexual relationship. Conversely, elements such as control, trust, and power that typify the athlete-coach relationship may remove the prospect of a female athlete turning down the request or voluntarily consenting to it (Brooks & Brooks, 2018).

Moreover, since the idea of unwelcomeness was development under Title VII sexual harassment legislation, the concept of “unwelcomeness” is far from being a perfect fit with Title IX sexual harassment cases. For instance, a coach, just a manager, is a figure of authority that exercises dominance over a subordinate. Nevertheless, the extent and nature of such control are not the same in the two contexts. As an illustration, a supervisor is a workmate whose authority significantly limited and happens only in the course of working hours. Further, according to Silbaugh (2015), the employee and the supervisor are typically both adults and leave little worry that the age of an employee could be a pertinent element that contributed to a sexual relationship.

On the contrary, Russ, Moffit, & Mansell (2017) also established that coaches assume a position of control and power over both college and high school level athletes. In addition, there is a big deal of trust in an athlete-coach relationship, and the control of the coach stretches to all facets of an athlete’s life. Normally, the perception of the athlete about the relationship is typically marked by both physical and emotional dependence. For instance, a coach provides tangible rewards, such as competitive chances and determines punishment as well, such as the withdrawal of a scholarship to indiscipline and undeserving athletes.

Therefore, based on a study by Moorman, & Osborne (2015), the wish of athletes, in the athlete-coach relationship, to exercise personal restraint within the reward-punishment system makes the athletes susceptible to early sexual activities. Moreover, Toomey, McGeorge, & Carlson (2018) believe that due to the power imbalance in the athlete-coach relationship, as well as disparities in their ages, the athletes’ susceptibility to being a victim of sexual harassment is high. For instance, college and high school athletes are always younger than their coaches and coaches are more likely to entice them into unfitting sexual relationships with them. The absence of decorum for such relationship is unquestionable for younger athletes, yet the credibility of a consensual adult athlete-coach relationship is disputed by the factor of power imbalance in the athlete-coach relationship (Jones & Hutchens, 2017).

Discussion

The statutory objective of Title IX was to protect people against discrimination and prevent discriminatory practices. It has emerged as the primary statute that fights for the rights of female athletes through preventing athletics and educational initiatives that get federal funding from sex-based discrimination.

Undesirably, the judicial history of Title IX intercollege sports coverage is vague. It is because the Department of Health, Education, and Welfare (HEW), which is the government agency responsible for the establishment of Title IX stopped the vagueness over athletics coverage through dictating that even though few university or college athletic departments actively receive federal funding, the legislation would spread out to intercollege sports. Apparently, from its inception, female victims in a quest for equal opportunities, funding, and access in women athletics have instituted the lawsuits brought under Title IX involving intercollege athletics.

One of the iconic effects of Title IX on women is the banning of sex discrimination in athletics. Despite its positive influence, nevertheless, discrimination is still rampant, leaving the victims to seek the intervention of courts to remedy the issue. Nonetheless, Title IX is inadequate in some instances to offer remedies to the offended persons.

Mansell, Moffit, Russ, & Thorpe (2017) found that the essence of athlete-coach sexual relationship should be deemed non-consensual, and place the onus on the coach to establish such conduct was welcome, instead of demanding that the athlete proves that the behavior was not welcome. The change in the onus of proof would somehow make even the power imbalance.

Whereas the trust and power rampant in the relationship between a coach and the athlete influence both female and male athletes, the female athletes are more prone to being lured into having a sexual encounter with a coach than their counterparts. It is particularly true because sportswomen are more likely to have a male coach than males are to have a female coach. On the contrary, it does not mean that athletes are never subject to sexual discrimination by female coaches. The issue of establishing the limits of proper physical touching between female athletes and male coaches should be addressed as well.

The Supreme Court revisited the matter of the constitution of sexual harassment in the case of Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998). Accordingly, the plaintiff claimed that she was forcibly a victim of sex-related and embarrassing actions on several occasions. Even though the case entailed the employment of sexual harassment legislation under Title VII to situations of same-sexual mistreatment, the opinion of the Court demonstrated the need to consider all the incumbent incidents of each sexual harassment allegation. Accordingly, the Court held that considering a harassment suit in the social setting is paramount to establishing when the action under assertion is merely “teasing or roughhousing” (523 U.S. 75 (1998).

Conclusion

The law on harassment functions on a sexual desire presumption. Hence, in case a supervisor exhibits sexual approaches towards an employee, the law on harassment assumes that such supervisor is heterosexual, and, therefore, the supervisor could not direct such attention to an individual of the same sex. However, such presumptions are not typical behaviors in the relationships between an athlete and a coach. In such relationships, nevertheless, the presumption is that such behavior is not sexual.

Consequently, due to the conflict between the harassment notion that such touching is sexual and the athletic notion that touching is not sexual, if a touch happens between an athlete and a coach, there is a communication conflict. For instance, it was claimed in Ericson v. Syracuse University that the previous women tennis team members of the university through sexually massaging them. Whereas some level of physical conduct between an athlete and the coach is advisable and even required in most sports, such physical touches could still be deemed as unintentional harassment or sexual harassment under certain circumstances. For example, it could be deemed as sexual harassment when a coach massages a player, but it may not amount to sexual harassment when a coach touches a female player while attempting to position her to demonstrate the correct pose of making a defensive move. Male-oriented sports function on the heterosexual presumption and such touching by a coach is deemed non-sexual. However, such a notion fails to bear in mind when there are a female athlete and a male coach.

References

Brooks, A., & Brooks, A. K. (2018). A Sexual Assault Prevention Program Proposal for Abilene Christian University.

Crosset, T. W. (2015). Athletes, sexual assault, and universities’ failure to address rape-prone subcultures on campus. In The Crisis of Campus Sexual Violence (pp. 74-91). Routledge.

Fasting, K., Sand, T. S., & Sisjord, M. K. (2018). Coach–athlete sexual relationships: Coaches’ opinions. International Journal of Sports Science & Coaching, 13(4), 463-470.

Jaime, M. C. D., Stocking, M., Freire, K., Perkinson, L., Ciaravino, S., & Miller, E. (2016). Using a domestic and sexual violence prevention advocate to implement a dating violence prevention program with athletes. Health education research, 31(6), 679-696.

Johansson, S., & Lundqvist, C. (2017). Sexual harassment and abuse in coach–athlete relationships in Sweden. European Journal for Sport and Society, 14(2), 117-137.

Jones, W. A., & Hutchens, N. H. (2017). Illegal Contact? Player-Coach Sexual Relationships at LSU and Boston College. Scandals in College Sports, 175.

Kavanagh, E., Brown, L., & Jones, I. (2017). Elite Athletes’ Experience of Coping With Emotional Abuse in the Coach–Athlete Relationship. Journal of Applied Sport Psychology, 29(4), 402-417.

Mansell, J., Moffit, D. M., Russ, A. C., & Thorpe, J. N. (2017). Sexual Harassment Training and Reporting in Athletic Training Students. Athletic Training Education Journal, 12(1), 3-9.

Moorman, A. M., & Osborne, B. (2015). Are Institutions of Higher Education Failing to Protect Students: An Analysis of Title IX’s Sexual Violence Protections and College Athletics. Marq. Sports L. Rev., 26, 545.

O’Brien, T. (2018). Address issue of sexual harassment via awareness, training, response plan. College Athletics and the Law, 14(11), 6-6.

Russ, A. C., Moffit, D. M., & Mansell, J. L. (2017). Sexual Harassment and Internships: How Do We Protect Our Students and Program?. Kinesiology Review, 6(4), 391-393.

Silbaugh, K. (2015). Reactive to proactive: Title IX’s unrealized capacity to prevent campus sexual assault. BUL Rev., 95, 1049.

Toomey, R. B., McGeorge, C. R., & Carlson, T. S. (2018). Athletes’ perceptions of the climate for sexual and gender minority athletes and their intervention in bias. Journal for the Study of Sports and Athletes in Education, 12(2), 133-154.

Vogel, N. (2018). DEAR STUDENT-ATHLETE: A closer look at how college athletics departments are addressing sexual misconduct.

Statutes

Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a) (2000)

Cases

Ericson v. Syracuse University 5 F. Supp. 2d 326, 328 (S.D.N.Y. 1999)

Gebser v. Lago Vista Independent School District 524 U.S. 274 (1998)

Morse v. Regents of Univ. of Colo., 154 F.3d 1127 (10th Cir. 1998).

Oncale v. Sundowner Offshore Services,, Inc. 523 U.S. 75 (1998)

 
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