At its heart, the Penn State University (PSU) football scandal is a criminal matter. But it’s also the ultimate example of sexual harassment being permitted to occur openly, continuously, and notoriously in a workplace, says San Francisco attorney Mark Schickman.
Schickman is a partner at Freeland Cooper & Foreman LLP and a member of the Employers Counsel Network.
The scandal, Schickman says, is a sober reminder of what can happen if any person or group believes it is bigger than the rules—immune from the consequences of violating the law and company policies.
Multiple Alleged Counts of Sexual Assault—and Failure to Report
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 the charges.
Secondarily, two PSU top officials (Athletic Director Tim Curley and Vice President Gary Schultz, who supervised the campus police) are charged with failing to report evidence of child molestation in 2002 and committing perjury to the grand jury in 2011.
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 obligated to contact public welfare officials within 48 hours.
In this case, PSU missed multiple opportunities to report the misconduct, thereby enabling many alleged acts of abuse that continued in the years to follow. At its heart, the conduct is a terrible crime.
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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.
A few years later, 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.
12 Years Later, House Cleaning at PSU
After the grand jury issued its criminal indictments, 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, he was told that he and PSU President Graham Spanier were fired effective immediately.
PSU 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 the university to act. What went wrong?
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The Untouchables
PSU has excellent written policies against harassment—and it’s the palest of understatements to say the alleged conduct in this case is at least sexual harassment.
All university staff members are required to report harassment, and retaliation is 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 2000—proof positive that PSU’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, he appeared at team awards dinners and sporting events accompanied by pre-teen boys he met through the youth charity he created, The Second Mile. He had proven that he could brazenly get away with anything.
Nobody Should Be Above the Rules
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.
But PSU’s scandal shows that outrageous abuse still exists and that HR diligence—especially regarding the highest-ranking, most powerful officials at an organization—remains critically important. It can’t matter that an offender is immensely profitable, protected, or high-profile.
Powerful people and institutions often think they’re above reproach; it’s our job to train them that they aren’t.
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