At its heart, the Pennsylvania State University (PSU) football scandal is a criminal matter. But it’s also the ultimate example of sexual harassment being permitted to recur openly, continuously, and notoriously in a workplace. It’s a sober reminder of what can happen if any person or group believes they are bigger than the rules — immune from the consequences of violating the law and company policies.
According to a 23-page grand jury report (from which the following allegations are taken), longtime PSU Assistant Football Coach Jerry Sandusky is charged with multiple counts of sexual assaults on minors; he denies all of the charges. Secondarily, two PSU top officials (Athletic Director Tim Curley, and Vice President Gary Schultz, who supervises the campus police) are charged with failing to report evidence of child molestation in 2002, and committing perjury to the grand jury in 2010.
Pennsylvania law (like that of most states) says that if your job or institution brings you in contact with children, you must report any reasonable suspicion of child abuse to the head of your institution, which is obliged to contact public welfare officials within 48 yours. In this case, Penn State missed multiple opportunities to report this misconduct, thereby enabling many acts of abuse that continued in the years to follow. At its heart, the conduct here is a terrible crime.
Unsportsmanlike Conduct
According to the grand jury report, since at least 1996, Sandusky engaged in an ongoing pattern of sexual conduct with young boys within the university’s football facilities. In 1998, the mother of one of the abused children complained to police about Sandusky’s conduct when her child came home with wet hair after showering with the coach. University and county police both investigated, and Sandusky admitted to showering with the child, but, at the university police’s request, the district attorney never filed criminal charges. The next year, at age 55, Sandusky unexpectedly retired as assistant coach, but retained “emeritus” status and access to the football facilities.
In 2000, a janitor saw Sandusky having sex with a young boy. He told the other janitors and his supervisor but nobody reported it. Again, in 2002, graduate assistant Mike McQueary saw Sandusky sexually assaulting a young boy in the locker room, and reported it to head coach Joe Paterno. Paterno reported it to Curley, whose “remedy” was taking away Sandusky’s locker room keys. The police weren’t called until 2009, when another teenage boy told authorities about four years of sexual abuse by Sandusky. The grand jury investigation and report followed.
After the grand jury issued its criminal indictments last week, Paterno, the winningest coach in college football history, with the squeakiest reputation in the profession, immediately announced that he would retire at the end of the season. Later that day, Paterno was given a phone number to call, and was told that he, and PSU President Graham Spanier, were fired effective immediately.
Penn State decided to atone for 12 years of inaction by cleaning house of Paterno, Spanier, Schultz and Curley. McQueary was placed on paid administrative leave for his own safety. But it took a grand jury indictment for Penn State to act: what went wrong?
The Untouchables
Penn State has excellent written policies against harassment — and it’s the palest of understatements to say the conduct in this case is at least sexual harassment. All PSU staff members were required to report harassment, and retaliation was prohibited. Yet, at all levels of the university, nobody would enforce those rules against the football program.
In 1998, the university police caught Sandusky; he got off with a warning. It’s no wonder that, despite the policy, the janitorial staff was afraid to report Sandusky’s sexual assault of a boy in the shower in 2002 — proof positive that Penn State’s nonretaliation policy wasn’t working.
In 2002, Sandusky’s conduct was reported to the top levels of the school, where it was again whitewashed. For the next eight years, Sandusky appeared at team awards dinners and sporting events, accompanied by preteen boys whom he met through the youth charity he created, The Second Mile. Sandusky had proven that he could brazenly get away with anything.
Sexual harassment cases come in many forms. I thought that the most egregious cases had disappeared over the years, as training, prevention, and remedies grew stronger. Penn State’s scandal shows that outrageous abuse still exists, and human resources diligence — especially regarding the highest ranking, most powerful officials at an organization — remains critically important. It cannot matter that an offender is immensely profitable, protected, or high-profile. Powerful people and institutions often think they are above reproach; it is our job to train them that they are not.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200. He also is a featured presenter in the Stop Sexual Harassment video and online training series for supervisors and employees.
“In 2000, a janitor saw Sandusky having sex with a young boy.” While I most definitely agree this is a criminal matter and an egregious case of sexual harrassment policy violations, to say that Sandusky was having sex implies it was somehow a consenual relationship. Sandusky was assaulting or molesting a child. Period.
This is a sad reminder that philosophy matters. Individual rights under the rule of law are sacrosanct and it is up to all of us to be vigilant when those rights are abused. Penn State will be punished for its folly, will Washington, D.C.? I hope so or Marxists will continue to destroy the best country on the planet.