How to Conduct a Sexual Harassment Investigation 2006 UPDATE

How to Conduct a
Sexual Harassment
Investigation
2006 UPDATE
ELSA KIRCHER COLE
THOMAS P. HUSTOLES
JACKIE R. MCCLAIN
National Association of College
and University Attorneys
P U B L I C AT I O N
S E R I E S
Elsa Kircher Cole has been the General Counsel for the NCAA since
1997, and has responsibility for its nationwide litigation calendar and
all its legal affairs. She previously served as the General Counsel for the
University of Michigan for eight years, and before that, as an Assistant
Attorney General representing the University of Washington for 13
years. Ms. Cole is a frequent lecturer and writer in the area of higher
education law, with special emphasis on athletics, sexual harassment,
and due process issues. She is on the Board of Directors for the Sports
Lawyers Association and the Board of Advisors of the National Sports
Law Institute at Marquette University. She also is a contributing editor
to The Educator’s Guide for Controlling Sexual Harassment. Ms. Cole is
a past member of the Board of Directors of NACUA, and in 2000, was
named a NACUA Fellow in honor of her many contributions to the
higher education legal profession. She received her A.B. with distinction
form Stanford University and her J.D. from Boston University.
Thomas P. Hustoles is a senior principal in the law firm of Miller,
Canfield, Paddock and Stone. For over 30 years, he has represented
universities, community colleges, school districts, municipalities, and
private sector employers in the full range of employment matters
and in general matters. He is a past chair of his firm’s Labor and
Employment Group and the Michigan Presidents’ Council of State
Colleges and Universities Legal Officers Committee. He previously has
served NACUA as a member of the Board of Directors and chair of
the Editorial Board of The Journal of College and University Law.
Mr. Hustoles attended the University of Michigan and received his B.A.
summa cum laude from the University of Detroit and his J.D. summa
cum laude from the University of Detroit School of Law. He has presented at numerous national conferences, and has conducted training
on the topic of sexual harassment in higher education. In 2000, he was
named a NACUA Fellow in recognition of his many contributions to the
higher education legal profession, and recently was honored by The
Best Lawyers in America for having been recognized by his peers in
that listing for the past 10 years.
Jackie R. McClain is Vice Chancellor for Human Resources for the
California State University. Prior to assuming that position in 1999,
she served as Executive Director of Human Resources and Affirmative
Action at the University of Michigan, Ann Arbor; as Director of Human
Resources at the University of Kansas; and as Director of Personnel
Services at the University of Kansas Medical Center. Ms. McClain has
been an active member of the College and University Personnel
Association (now CUPA-HR), where she served as President in 19992000 and Immediate Past President in 2000-2001. She also is a former
member of the CUPA Foundation Board of Directors, Past Chair of the
CUPA Mid-West Region and Great Plains Chapter, and past Chair Elect
of the CUPA Foundation. In 2003, she received the CUPA Donald E.
Dickason Award; in 1999, she received the CUPA Kathryn G. Hansen
Publication Award; and in 1990, the CUPA National Distinguished
Service Award. Ms. McClain has spoken at numerous conferences and
seminars, and is the author of several publications focusing on legal
issues, including sexual harassment. She received her B.S. from the
University of Missouri-Kansas City and her J.D. from the University of
Kansas School of Law.
This is one of a series of publications from NACUA, an organization whose mission
is to advance the effective practice of higher education attorneys for the benefit of
the colleges and universities they serve.
The views expressed herein are to be attributed to the authors and not to the
National Association of College and University Attorneys. This pamphlet is
intended for general informational purposes only, and does not constitute
legal advice. An attorney should be consulted regarding the specific facts and
circumstances associated with any legal matter or case.
Third Edition April 2006
Second Edition October 2002
First Printing May 1997
Copyright © 2002 National Association of College and University Attorneys
One Dupont Circle, Suite 620, Washington, DC 20036
Printed in the United States of America
How to Conduct a Sexual
Harassment Investigation
T
he most frequently asked questions from college
and university administrators, faculty, and staff,
who have even the slightest responsibility for
investigating claims of sexual harassment on
their campuses, start with “What do I do when…?,”
“How do I…?,” or “What happens if…?” The purpose
of this pamphlet is to combine the cumulative “best
advice” from the authors’ 90-plus years of collective
experience working in this area, speaking on the topic,
and responding to these same kinds of questions from
administrators at institutions of all types and sizes.
This publication is not a “traditional” NACUA
pamphlet that focuses on a particular legal question or
issue, analyzes various aspects of that issue, and offers
advice for additional steps or further study. Instead, the
information represents our best effort at creating practical, sound suggestions for conducting an appropriate
and timely sexual harassment investigation. It also is a
resource that can be viewed as a “work in progress,”
insofar as there always may be a better way of handling
a particular situation, and there always will be extenuating circumstances that need to take into account
different responses to the questions posed above.
The pamphlet is intended to be equally understandable by lawyers and non-lawyers alike. The format
in which the information is presented is designed for
ease of use, and facilitation of dissemination to administrators and others on campus involved in investigating
claims of sexual harassment.
I. Conducting an Appropriate and Timely
Investigation of a Complaint of Sexual
Harassment Is Important Because:
A. A prompt, timely resolution of the dispute is more
likely to occur.
B. Institutional liability can be decreased and the harassment can be prevented from becoming pervasive and
actionable. An employer automatically is liable for
harassment culminating in a tangible employment
1
action such as a demotion or termination, and can
be liable for other harassment if it knew or should
have known of the harassment, and fails to exercise
reasonable care to prevent and promptly correct
such behavior.
C. An appropriate, responsive resolution of the dispute
is more likely to occur.
D. Both the complainant and the accused need to be
treated fairly, and due process as a matter of law or
policy is critical.
E. Effective feedback should be provided at reasonable
intervals.
F. The institution can demonstrate its commitment to
ending sexual harassment on campus, and enhance
its credibility for the process and its investigators.
G. The institution can use its own standard of behavior
that it expects in the academic community rather
than that of an external agency.
H. An investigation by an external agency, which can
be divisive and contribute to lower employee and
student morale, may be avoided.
I. Appropriate, professional current and future
employee and student conduct will be encouraged.
J. The goal of consistent institutional standards for
measuring unacceptable conduct, and administering
consistent discipline in similar cases, will be furthered.
K. There likely is to be less external publicity, which can
complicate an appropriate resolution of the matter.
L. Privacy concerns for both the complainant and
alleged harasser are more likely to be reasonably
addressed.
II. Common Mistakes in Investigating
Complaints
A. Excessive delay in beginning the investigation.
B. Inadequate feedback to the complainant and the
alleged harasser during the investigative process.
C. Inappropriate disclosure of confidential information.
D. Lack of thoroughness or failure to complete an
investigation.
E. Failure to recognize or appropriately consider First
Amendment/academic freedom concerns.
2
III. Choosing an Investigator
A. An institution’s written procedures for investigating a
sexual harassment complaint may dictate who will be
the investigator(s) of the matter. However, if there is
discretion permitted under the policy for selecting an
investigator, the following is recommended.
B. Choose individuals who have credibility with and are
respected by their colleagues. Consider how well they
will perform if called upon to be witnesses in subsequent litigation.
C. Choose individuals with good people skills who can
be both empathic and objective, and who can read
non-verbal cues.
D. Do not assume choosing the institution’s attorney as
the investigator will protect the investigative materials
with the attorney/client privilege or the attorney work
product exception. Courts have sometimes ruled
otherwise, exposing the thought processes of legal
counsel and making the attorney a witness and
ineligible to represent the institution.
E. Have at least one investigator of the incident be of
the same or superior rank as the alleged harasser to
give immediate credibility to the investigation. This is
particularly true when the alleged harasser is a faculty
member or medical doctor at the institution’s hospital
or medical school.
F. Consider having at least one male and one female on
the investigative team. They should both be present
throughout the initial intake interview and each part
of the investigation. Women complainants are more
likely to be open with other women and may code
their responses if only a male is present. Male and
female investigators may hold different beliefs as to
the seriousness of an event. Having both present
broadens perspectives and provides a reality check
and support for each other if the investigation proves
time-consuming and/or emotionally draining.
G. Despite the advantages listed above, it always is more
important to begin investigating the complaint than
to get the optimum pairing.
H. The investigator must have autonomy and power.
1. The investigator acts on behalf of the educational
institution, trying to find facts and remedies for the
institution and make the best possible decision.
2. The investigator does not represent the complainant or the alleged harasser.
3
3. The investigator is a neutral party, but available to
both sides.
4. The investigator should report directly to the
administrator who can best determine the organizational response in order for the investigator to be
most effective.
I. The investigator must be someone with sufficient
time and stamina to handle the crucial and, at times,
daily telephone calls and e-mails, as well as the reassurance that must be given during an investigation.
J. The investigator is NOT a counselor, but is there to
provide information, acknowledge the emotions that
are felt, and refer that person to the proper resources
if counseling is indicated.
K. Committee approach to the investigation.
1. Advantages: A committee is a familiar part of
campus life and therefore may be more readily
acceptable than a single or pair of investigators.
2. Disadvantages: Unless the committee is carefully
trained, it most likely has no special skills; it may
be intimidating to a complainant; it is less likely to
come to a speedy resolution; consensus may be
difficult or impossible to achieve; it is not in a
position to take appropriate action; it is difficult
to maintain the appropriate level of confidentiality
with an increased number of individuals aware of
the facts; and it is hard to disband this type of
committee if it is not proving effective.
3. Possible Solution: Have a committee periodically
review the work of the sexual harassment investigators in order to foster the credibility of both the
process and the investigators.
IV. Creating a Strategy for Action
A. An institution’s procedures may outline a specific
timetable for the investigation. More likely, it merely
will give a deadline by which the investigation is to be
completed. In that event, it is important to create a
time frame for action.
1. Remember that it is absolutely critical as part of
any policy or procedure that there be a prompt
investigation and resolution of complaints.
2. A delay indicates to employees a lack of interest or
commitment, which leads to demoralization of the
work force and perhaps even to legal liability.
4
B. Prior to starting the investigation, the investigator
should create a preliminary time line, to include
general time frames for interviewing witnesses,
gathering documents, completing a draft report, etc.,
that allows the investigation to be completed within
whatever time period is required by the institution’s
procedures. The time line should be updated regularly
as events warrant, such as illness or absence of witnesses. As soon as the investigator realizes that there
may be a problem completing the investigation within
the required time, he or she should so notify the
complainant and the alleged harasser with the reason
for the delay and, if possible, get their written consent to extend the time to complete the investigation.
C. The procedure needs to be coordinated with procedures in other policies on campus that may apply to
the situation. For example, the faculty code or tenure
policy may contain grievance procedures that must
be respected if the alleged harasser is a faculty member. Grievances against staff employees may best be
investigated and resolved by using already existing
procedures to solve other discrimination actions.
Union contracts also may dictate how an investigation is to proceed.
V. The Complaint Intake
A. It is imperative that an institution has an intake procedure in place inasmuch as it needs to be able to
take a complaint immediately when first contacted by
the complainant.
1. Many complainants have “second thoughts” and
will not return for another appointment if an
intake person is not ready to act.
2. Try to avoid having to send the complainant to
more than one office because the first one he or
she approaches is the wrong one to handle this
type of grievance.
B. Depending on the size of the institution, it may be
preferable to have more than one place in which to
take complaints, so as to increase the comfort level
of the complainant with the process.
C. The intake person needs to explain gently, but firmly,
to the complainant the importance of getting the
complaint in writing (even though the complainant
may be reluctant to do so) in an effort to increase the
institution’s options in taking appropriate action to
5
stop the harassment and prevent its reoccurrence. He
or she also needs to get sufficient information about
the situation to turn the matter over to the appropriate administrator to initiate an investigation. The
intake person, however, may or may not be the
person assigned to do the investigation.
D. To cover the unusual circumstance in which the
designated intake person may be the alleged harasser
(or otherwise is prejudiced), institutions should always
identify an alternative individual who can receive and
process the complaint.
E. If drafted with the assistance of the intake person,
the complaint should be as specific as possible, i.e.,
it should provide the who, what, when, where, and
how of the incident(s) complained of, and be dated
and signed by the complainant and the intake person.
1. Note, however, that even vague complaints may
put the institution on notice, thereby requiring
some investigation to gather the missing information needed to decide if a fuller investigation
in fact should be conducted.
VI. The Anonymous or Reluctant
Complainant
A. Some complaints are truly “anonymous,” inasmuch
as they are reported to the institution by rumor,
hearsay, or an unsigned written claim. Others can
be characterized as “reluctant,” such that the complainant is known, but does not want to be identified, for example, to the alleged harasser or other
students.
B. A complainant who files a written, signed complaint
may have a change of mind, and seek to withdraw
the complaint.
C. There are numerous ways that colleges and universities have dealt with the reluctant complainant in
order to encourage him or her to allow his or her
name to be shared:
1. The intake person can reassure the complainant
that the institution will protect him or her from
retaliation by the alleged harasser, that it has a
very strong policy against retaliation, and that it
will take steps to vigorously enforce it.
2. The intake person can reassure the complainant of
the importance of the issue, and that the institu-
6
tion does not want to ignore it because of its
moral responsibilities.
3. The intake person can carefully explain how limited
the options are to address and resolve a problem
without sharing the complainant’s name because
of the due process or contractual rights of the
accused.
4. An attempt can be made to convince the complainant to consider returning to file a complaint
once the alleged harasser is no longer in a position
to do harm to the complainant. Examples include
when the class term is over, when the dissertation
approval process is finalized, or when a job
situation changes. The intake person should then
follow up with the complainant at some future
time to ascertain if there is no longer reluctance
to go forward with the complaint. If this alternative is pursued, attention should be paid to time
limitations for filing complaints both internally and
externally, and such a concern should be discussed
with the complainant.
D. Where the complaint involves serious allegations, but
the complainant remains unwilling to share his or her
name for the record, or where the source of the complaint is truly anonymous (as with persistent rumors,
hearsay, or a written but unsigned complaint), there
are various strategies that institutions have pursued
to address the situation in a pro-active, appropriate
manner.
1. Informal inquiries that do not identify any specific
individual can be made in the affected department
or area, and if any specific information is disclosed,
it can be investigated as appropriate.
2. The intake person can share with the administrator responsible for overseeing the institution’s
sexual harassment policy whatever information is
appropriate to determine what the institution
can do about the situation. Examples include
conducting a workshop on sexual harassment
in the unit that employs the alleged harasser, or
an informal approach to the alleged harasser
regarding the behavior about which there has
been an alleged complaint. A conversation with
the alleged harasser along the lines of “there has
been an undocumented complaint or persistent
rumors regarding…,” and an explanation of uni-
7
versity policy, at least puts the individual on specific
notice of university policy.
3. Some institutions have drafted procedures that
allow administrators to file an institutional complaint, so that a reluctant complainant does not
have to initiate the process. This sometimes relieves
the fears of the complainant, who then may
become willing to pursue the matter on the record.
It also protects the institution. Such institutional
complaints generally are used in circumstances
where the complainant alleges very serious,
credible matters, but also says, “I don’t want
you to do anything about it.”
E. Always recommend available counseling alternatives
to the reluctant complaint.
F. If any of the follow-up suggested above is done, be
sure to document it.
VII. Timeliness of the Complaint
A. Often, an institution’s procedures will specify a time
period within which a complaint must be filed. If
they are silent on this, there is a practical time period
beyond which it may be unreasonable to conduct an
investigation. This generally is three years since the
last incident occurred, which is the statute of limitations for bringing a sexual harassment action in court
in most jurisdictions. A longer period can be specified
by your institution’s policies.
B. The complaint should be examined by the investigator
to determine if it is timely. If it does not appear to
be, the investigator should question the complainant
about the reasons for the delay. Legal counsel should
be consulted to determine if the reasons are such that
the matter should still be investigated.
C. Attention can still be paid to responding in some
fashion to “stale” allegations of alleged incidents in
years past.
1. Regardless of limitations periods, it is important to
make some inquiries regarding current employees,
due to the generally acknowledged recidivism of
serial harassers and liability avoidance.
2. Although complex and difficult, such inquiries can
take the form of “open-ended” interviews, without identifying names, and without leading questions, regarding perceptions of sexual harassment
in the affected area.
8
3. When deciding to conduct such inquiries, the institution should balance the seriousness and scope of
the perceived problems against the due process
rights of any alleged harassers.
4. At the very least, the alleged serial harasser who
is the subject of persistent complaints that cannot
be documented should be put on notice of the
existence of those complaints, as well as the
institution’s policies against sexual harassment.
5. If past victims are identified, their personal issues
should be addressed (counseling, etc.).
6. Most institutions have had examples of serious
adverse consequences, to both the alleged harasser and the institution, of ignoring old, stale, or
undocumented complaints. One typical example is
that all of a sudden numerous individuals decide to
go on the record, such that the consequences to
the harasser tend to be more serious (i.e., possible
termination).
VIII. Setting Up the File
A. Generally, a separate investigative file should be
established apart from the personnel or student file
of the alleged harasser or complainant. However,
when organizing the file, the Family Educational
Rights and Privacy Act (FERPA) and state open records
and personnel records laws should be consulted since
these statutes may impact how the file is set up and
maintained. Only after allegations are substantiated
should factual findings or conclusions be prepared
for the alleged harasser’s personnel or student file.
B. Should the matter being investigated end up in litigation, the investigation file at public institutions can
be required to be turned over to the party suing the
institution. In some states, investigative files are public
records subject to disclosure. It also is possible that
an alleged harasser may attempt to intimidate the
investigator by filing a defamation action against him
or her and try to use the investigative file as evidence
of such. Therefore, only factual matters, not idle
speculation, should be maintained in the file. Consider discarding initial drafts of documents once they
no longer are needed.
C. Include in the file a copy of the policy and procedures
that are being followed in the investigation. If litigation does occur, it may be sufficiently remote in time
9
that the procedures and policy may have been
amended, and it will be important to know which
were in place at the time of the investigation.
D. Have a sheet of paper inside the cover of the file on
which to record the date of each activity that is part
of the investigation. This may be needed later to
confirm the existence of a prompt investigation.
E. Include all written documentation, evidence, and
relevant institutional policies in the file, beginning
with the complaint. Also include notes from interviews with the complainant, the alleged harasser,
witnesses, and others.
IX. Interviewing the Complainant
A. The first step in the investigation will be interviewing
the complainant, if the intake person is different from
the investigator. A sufficient amount of time should
be set aside for the initial interview, preferably at least
two hours.
1. A complainant can be very emotional and embarrassed when discussing a very private matter. He
or she often has an history of being abused or vulnerable, with consequent low esteem. Therefore,
the investigator must allow time for the conversation to wander.
2. Efficiency should not be the goal of the interview.
Time is needed to allow a rapport to develop in
order to reduce stress.
3. The use of a tape recorder may inhibit the interviewing process, depending on the sensitivity of
the interviewee. On the other hand, taking notes
may be distracting. A possible solution is to have
one person ask questions and one person take
notes. Another is to take minimal notes during
the interview and enhance them immediately
afterwards.
B. When scheduling the interview, if the institution’s
procedures permit, tell the complainant that he or
she is allowed to bring a support person or advocate
with him or her. If the complainant wishes to bring
an attorney, and the institution’s procedures permit
doing so, be sure the attorney knows any limits on his
or her participation (e.g., to advise the complainant,
but not ask questions or comment on the matter if
that is the institution’s policy).
10
C. Choose a site for the interview that will make the
complainant comfortable and where privacy is
assured, such as an adequately sized office. Interviewing at the complainant’s residence may give the
appearance of soliciting the complaint; therefore, a
more neutral site is preferable. If an advocate attends,
place him or her in a place where visual cues are
inhibited, such as side-by-side or a little behind the
complainant.
D. Begin the interview by describing its purpose, the
institution’s strong desire to eradicate sexual harassment, and its non-retaliation policy, without implying
that retaliation necessarily will occur, but also telling
who to contact if it does. Remind the complainant
of the need to give his or her name to the alleged
harasser, that no face-to-face meeting with that
person need occur during the investigation unless
the complainant wishes otherwise, and that respect
for confidentiality and privacy should be maintained
by the complainant, as well as the investigator, to
the extent possible during the investigation and
thereafter. Do not promise absolute confidentiality.
E. Questions to ask the complainant during the initial
interview:
1. What happened and what was the complainant’s
reaction to it? The individual needs to describe
concrete situations rather than just “he propositioned me.”
2. When did it happen?
3. Who within the department or unit knows that it
happened?
4. How did it affect the complainant’s work?
5. Who has experienced the same type of behavior?
6. Who within the administration or which supervisor
has been notified previously by the complainant
about the incident?
7. What did that person do?
8. What documentation does the complainant have
that supports his or her story?
9. What does the complainant expect as an outcome,
e.g., to have the behavior stopped, counseling,
back wages, etc.? Often the complainant does
not know what he or she wants, but instead
wants the investigator to tell him or her what to
do. Avoid making implied promises that what the
complainant wants is what will occur.
11
F. Remind the complainant not to discuss the investigation with others in the work place. Explain that doing
so might give rise to a claim of defamation by the
alleged harasser and increases the perception by the
harasser that he or she needs to retaliate in some way
against the complainant for making the complaint.
Often the complainant will talk anyway. However,
as a result, other complainants who had similar
experiences with the alleged harasser, and who have
prepared themselves emotionally for the interview
with investigators, may come forward.
G. If appropriate, suggest that the complainant talk to a
source of outside support or get counseling. However,
it is important that this is not done in a way that can
be interpreted as validating the complaint, as it is
important for the investigator to remain neutral.
H. Avoid making premature commitments to the
complainant.
I. Inform the complainant that his or her written
complaint will be shared with the alleged harasser.
J. Outline the timetable of the investigation and the
actions that the investigator will take. For example,
within 15 working days of receipt of the complaint,
the investigator shall interview the alleged harasser
and (if appropriate or applicable) his or her supervisor,
and determine if there exists probable cause to
conduct a full investigation of the allegation.
K. Inform the complainant that he or she will be kept
apprised of the investigation.
1. Explicit or implicit power differentials between a
professor and a student or a supervisor and an
employee complicate issues of “consent.”
2. “True love” sometimes devolves into “trouble in
paradise.” What happens if consent is withdrawn
by the complainant? And how does one document
when that happens? This is a common investigative
problem. When the consent is allegedly withdrawn, how the withdrawal is communicated, and
what actions followed the withdrawal, are typical
investigative concerns.
3. Even truly consensual relationships present inherent
professional conflict of interest and lack of appropriate professional behavior questions where a
supervisor evaluates an employee, or where a
professor grades a student or evaluates a student’s
dissertation.
4. If an institution’s policy requires reporting of consensual relationships in the supervisor-employee
or faculty-student context, was the relationship
reported?
5. These situations tend to present classic “he said/
she said” dilemmas; thus, the investigator should
seek external corroboration of facts.
L. Thank the complainant for coming forward with
the issue.
XI. After the Interview with the
Complainant
X. Victim Denials of Harassment or
Assertions of Consensual, Welcome Conduct
A. The individuals who are informed about the complaint should be limited to as few as possible, and
only to those who absolutely have a need to know.
A. Where a serious complaint is filed by an alleged
victim, and then withdrawn, consider the possibility
that the withdrawal was caused by threats from the
accused or friends of the accused.
B. The withdrawal of a complaint generally does not
end the institutional responsibility to investigate
once it has been put on notice of a serious alleged
harassment.
C. Always recommend counseling alternatives to the
victim.
12
D. Where the victim withdraws the complaint on the
premise that the relationship was consensual, or the
harasser defends the alleged misconduct on that
ground, consider the following basic concerns.
B. In a workplace situation, the immediate supervisor of
a complainant needs to know because there may be
a change in the complainant’s work performance,
and no disciplinary action should be taken against
the complainant where the change was caused by
the harasser’s actions. Alternatives and other options,
such as a change in reporting relationships, often
have to be considered, and these also involve the
immediate supervisor.
C. The supervisor of the alleged harasser needs to know
so the supervisor can watch for further incidents of
13
harassment, and also understand why the alleged
harasser and other employees may need to be absent
for interviews during work hours.
D. It is preferable for the supervisor to first hear of the
incident from the investigator rather than a possibly
self-serving version from the alleged harasser.
E. The supervisor needs to feel that he or she is being
kept informed so that it does not appear that the
investigator is interfering in the operation of the
employing unit.
F. The investigator needs to tell the alleged harasser
that a complaint has been lodged against him or her.
Depending on how institutional policy is drafted,
there may – and should – be some gap between
this notice and the preliminary investigation of the
complaint, especially where physical abuse is alleged.
There have been instances, for example, in which
institutional policy has required immediate notice,
and thus, the harasser physically assaulted the alleged
victim to the point where the victim withdrew the
complaint.
XII. Caring for the Alleged Victim through
the Investigative Process
A. Victims go through various stages of denial and
grieving. The institution needs to prove a safe environment for the victim to ensure the unfettered airing
of the complaint. This may extend to conducting
interviews off-campus.
B. Interim protective action always should be considered.
For example, a student can be transferred to a
different class where appropriate, or an employee
can be transferred to another position. In cases where
there is reasonable cause to believe that the alleged
harasser will seriously harm an employee or a student,
institutions can consider an immediate suspension
of the alleged harasser, with pay, pending the outcome of the investigation. If the alleged harasser is
a student in these circumstances, then the code of
student conduct procedures can be consulted, which
normally allow for expedited suspension procedures.
C. Do not make the alleged victim tell and re-tell his or
her story.
D. If the victim is uncooperative, emphasize the need for
cooperation in order to pursue appropriate redress.
14
E. Keep the complainant appropriately informed with
relevant feedback as to the process and potential
outcomes.
XIII. Meeting with the Alleged Harasser
A. Arrange a meeting with the alleged harasser as soon
as possible, and inform him or her of its purpose at
the time it is scheduled. If the institution’s procedures
so permit, notify him or her that he or she may have
a support person present. This may be required by
some institutions’ procedures or by union contracts.
Wait to go into detail regarding the allegations until
the face-to-face meeting, but assure the alleged
harasser that he or she will have an opportunity to
refute them.
B. At the interview, describe the behaviors and ask if
they have occurred. Do so without any judgmental
comments or inferences.
C. After the behavior has been described, if the alleged
harasser agrees that the behavior happened, then
label it as sexual harassment, if appropriate, and tell
the alleged harasser that it is unacceptable. Many
alleged harassers agree that they did in fact do the
action about which the complaint has been made,
but they tend to interpret the action differently with
respect to its severity or intent. If the alleged harasser
denies that the behavior happened, invite him or her
to tell his or her side of the story. Ask the alleged
harasser if he or she has an explanation or theory as
to why the accusation was made.
D. Tell the alleged harasser that the institution takes
complaints seriously, and has an obligation to investigate them.
E. Explain the institution’s definition of sexual harassment and give a written copy of it and the institution’s sexual harassment policy and procedures to the
alleged harasser. Also explain that it is against the law
to retaliate against a complainant, which includes any
actions or comments by the alleged harasser.
F. Share a copy of the written complaint with the
alleged harasser, but only after omitting names and
identifying information about individuals, other than
the complainant, who have not yet indicated a willingness to have their name shared with the alleged
harasser.
15
G. Ask the alleged harasser for a written version of his or
her side of the story.
H. Ask the alleged harasser for a list of witnesses to the
alleged behavior.
I. Ask for any documents that would substantiate the
alleged harasser’s version of the incident(s).
J. Remind the alleged harasser not to discuss the investigation with others in the workplace and encourage
him or her to limit his or her dissemination of the
complaint and conversation about it. Explain that the
investigator will try to keep the matter confidential to
the extent permitted by law and institutional policy.
K. Give an estimate as to how long the investigation
will take. Explain that new information will be
shared with the alleged harasser as the investigation
progresses.
L. Consider if the type of allegation and the underlying
circumstances merit the complainant attending the
meeting between the investigator and the alleged
harasser if he or she so desires. If the harasser has no
prior history of harassment and only one complainant
is involved, this may give the complainant some
control and power over his or her own problem.
XIV. Fairness to the Alleged Harasser
throughout the Process and Other
Respondent Issues
A. If the alleged harasser is a non-organized employee,
the nature and extent of any “right” to crossexamination of the complainant or “confrontation”
of witnesses depend primarily on institutional
policies and procedures.
B. If the alleged harasser is covered by a collective bargaining agreement, process issues will be determined
by either the contract provisions or past practice
implementing the contract.
C. Strict compliance with institutional policy or collective
bargaining agreement procedures is critical.
D. Public institutions are required to provide due process
before an employee is deprived of a property right
(e.g., termination or suspension without pay) or
before a student is expelled.
E. Private institutions generally provide due process as a
matter of policy.
16
F. At a minimum, as specified by the U.S. Supreme
Court, pre-termination due process requires:
(1) notice of charges; (2) a reasonable explanation
of the evidence supporting the charges; and (3) an
opportunity for the accused to give his or her side
of the story.
G. Beyond these minimums, the case law in the institution’s jurisdiction should be consulted.
H. An alleged harasser always has the right to retain
counsel.
I. However, whether an alleged harasser has a right
to have an attorney present at his or her interview
and/or during investigative hearings generally is a
matter of policy.
J. The Weingarten doctrine applies to collectively organized employees. If an employee reasonably believes
that an interview may lead to discipline, he or she has
a right to request and be given union representation
at that interview. This right, however, does not allow
the union representative to control the interview.
K. Where a respondent threatens to sue, alleging
defamation or intentional infliction of emotional
distress, such threats should be discussed with
institutional legal counsel. They do not have an
impact on the employer’s legal duty to conduct a
prompt and appropriate investigation.
L. Where an alleged harasser is angry or non-cooperative, remind the respondent that this is his or her
chance to tell his or her side of the story, and clear
his or her name.
M. In cases of total non-cooperation, the alleged
harasser can be reminded that cooperation in
employer investigations is part of his or her job
responsibilities, and that non-cooperation can lead to
potential discipline. An unwillingness to provide a
statement can be taken into account in considering
discipline.
N. Where a respondent asserts the influence of alcohol
or substance abuse as a defense, the investigator
should advise the respondent that alcoholism/
substance abuse is not an affirmative defense to
improper workplace conduct, and will not side-track
the course of the investigation.
O. However, alcoholism/substance abuse may be an
important factor in the nature of any discipline or
resolution. When termination is not warranted, a
17
suspension, including participation in an employee
assistance program, may be indicated. A last chance
agreement also may be appropriate. Collective bargaining organizations often work with the represented employee and the administration to achieve an
appropriate resolution of these cases.
XV. Other Witnesses
A. Contact other witnesses as soon as possible. Find out
if there are any availability problems to determine the
order of interviewing. Keep track of who suggested
interviewing a particular witness. Prepare a list of
questions to ask.
B. Explain that the information they share will be kept
confidential to the extent permitted by law and
institutional policy, but that absolute confidentiality
cannot be promised. Do not share with them the
details of the complaint other than those they need
to know in order to, in turn, provide information.
C. Do not ask if they have seen or experienced “sexual
harassment;” instead ask about specific behaviors
that they have observed.
D. Ask if, from their point of view, the alleged harasser
was bothering the complainant and why.
E. Ask if there are others who might be able to comment on the interaction, or if there is any documentation of which they are aware that might relate to
the alleged behavior.
18
J. Find out if any witnesses anticipate leaving the area
for any period of time. If so, it may be appropriate,
prior to their departure, to get a signed statement
about the incident. Counsel should be consulted
about the proper form of such a statement to preserve it for use in subsequent legal proceedings.
K. Determine if a written statement should be obtained
from witnesses. Such statements are discoverable,
and may lock a witness into a set of facts that the
witness may want to change later. Again, consult
with counsel about the advisability of obtaining such
signed statements.
XVI. Miscellaneous Procedural Matters
A. Transcribe notes from interviews as soon as possible
after they occur, and ask the interviewee to verify
their accuracy. Make a separate report of the interview, which contains the investigator’s impression
of the witness’ credibility, demeanor, or nonverbal
behavior, if such observations are noted and
warranted.
B. Maintain a current list of addresses and phone
numbers of all individuals contacted.
C. Obtain and review relevant employment and student
records.
D. Check with legal counsel regarding any First
Amendment/academic freedom concerns raised by
the allegations.
F. Ask if the complainant complained to them about
the harasser’s behavior.
E. Keep the complainant and the alleged harasser
apprised of the progress of the investigation.
G. While it is acceptable to ask about a complainant’s
attire and appearance to determine if the conduct in
question was potentially welcomed, questions about
the complainant’s past and present sexual history may
be limited by state law. Before asking such questions,
the investigator should consult with legal counsel
concerning the appropriateness of doing so.
F. Always explain to both the complainant and the
alleged harasser the institution’s policy regarding no
retaliation, and indicate that violation will subject the
accused to discipline, up to and including potential
discharge, for serious violations.
H. Explain the institution’s definition of sexual harassment, and give each witness a copy of it in writing.
G. Advise the complainant to immediately report any
retaliation or inappropriate interaction, and advise the
alleged harasser to report any perceived inappropriate
conduct by the complainant towards him or her.
I. Explain the need to limit speculation and conversation
about the matter in order to protect the witness from
allegations of defamation. Also explain the institution’s policy against retaliation for participating as a
witness in an investigation, and to whom any retaliation should be reported.
H. Remember to give immediate notice to the complainant that confidentiality cannot be guaranteed.
Notice of a serious complaint equals an institutional
responsibility to investigate, as a general matter of
law. State open records laws, FERPA, and due process
to the accused, however, all are relevant.
19
I. While warning the complainant that there is no
guarantee of confidentiality, encourage him or her
nevertheless to proceed on the record. Assure the
complainant that his or her privacy will be protected
to the extent permitted by law and institutional
policy.
J. Some case law supports closing a complaint when a
complainant comes forward, but states that he or she
does not want to be identified and does not want
any action taken.
K. When supporting witnesses refuse to sign statements
without a promise of confidentiality, encourage them
to come forward in the same way that complainants
are encouraged to do so. Remind them of nonretaliation policies, and appeal to the difficulty of
progress without “on-the-record” cooperation. If
such a witness is an employee, he or she can be
reminded that direct cooperation is part of his or
her job responsibilities.
XVII. Weighing the Evidence
A. Most institutional procedures will specify what standard of proof the evidence must meet to find that
there is reasonable cause to believe sexual harassment
did occur, and state that the burden of proof to
produce such evidence will be on the complainant.
In the absence of a standard of proof, the one
most likely to be employed is the preponderance of
evidence standard. In other words, the complainant
and/or investigative team must demonstrate that,
more likely than not, sexual harassment occurred,
in violation of the institution’s policy.
B. In the situation where there are no witnesses, and
it is the complainant’s word against the accused
harasser’s, the investigative team will have to look at
all the facts and circumstances surrounding the allegations to determine if there is reasonable cause to
believe that harassment occurred. The investigators
should consider the following.
1. “He says/she says” cases are typical situations, and
this fact alone never means the complaint should
be closed simply because the respondent issues a
blanket denial.
2. The investigator can assess and note complainant
and respondent demeanor, non-verbal behavior,
and inherent credibility. As much as possible,
20
credibility assessments should be tied to these and
similar examples of concrete behavior or incidents.
3. A complaint or response replete with factual detail
can be assessed against blanket accusations or
denials that do not have any supporting detail.
4. The substance and chronology of statements
should be reviewed for internal consistency.
5. Follow up on any admissions of behavior and/or
re-examine denials in a subsequent interview.
6. Ask the accused if he or she has any theory or
explanation as to why a complaint would be made.
7. Consider the inherent plausibility of any explanations given.
8. Has the complainant told anyone else of the
alleged harassment?
9. Did others witness any change in behavior by the
complainant or respondent after the alleged
harassment?
10. Consider the timing of the complaint in relation
to the occurrence of the behavior.
11. Is there a pattern of similar complaints made by
others?
12. Conduct open-ended interviews of individuals
in the affected department or area, carefully
balancing the rights of the accused.
XVIII. The Administration’s Role During
the Investigation/Who Should Decide on
Disciplinary Action or Other Response?
A. The administration must be willing to stay out of the
way during the investigation.
B. The administration must promise no retaliation, and it
must be sensitive to the need to heal the work place
after the investigation is concluded.
C. The administration must maintain an open mind
and evaluate and respond fairly to the results of the
investigation.
D. The person or persons from the administration who
should decide on disciplinary action or other response
varies from institution to institution. The answer
depends in large part on institutional policies and
practices.
21
E. Where a collective bargaining agreement is in place,
the decision-making process and structure likely will
be covered by the contract.
F. Policies regarding the decision-making process should
always be followed strictly.
G. Use legal counsel for advice during deliberations to
preserve confidentiality.
XIX. Who Should Be Informed of
Investigative Results, Disciplinary Action,
or Other Response?
A. Follow the letter of the law and institutional policy
if or when the respondent requests information
regarding the status of the investigation.
B. Typically, respondents are not entitled to interim
“progress reports.”
C. Once charges are formally filed, as a matter of due
process, the respondent generally is entitled to be
informed about the nature of and general basis for
the charges.
D. The alleged harasser is always informed of the final
result of the investigation, including any corrective
action.
E. When the complainant requests information,
generally give sufficient data to assure him or her
that the complaint was taken seriously and investigated fairly.
F. Advise the complainant of the general outcome of
the investigation.
G. The complainant’s right to know of specific disciplinary action taken should be balanced against the
respondent’s privacy rights, and may be impacted by
state open records laws or collective bargaining
agreements.
H. If non-public information is shared after the legal and
policy review, the complainant should be warned not
to disclose any confidential information.
I. Open records issues are governed by state law, and
institutional legal counsel should always be consulted
regarding record maintenance and dissemination.
J. Individuals who cooperate in investigations should be
warned that, where applicable, their statements in
interviews may be subject to Open Records Act disclosures as permitted or required by law.
22
XX. Use of Legal Counsel
A. Use of in-house and/or outside counsel from the time
the complaint is received will enable the institution to
take optimal advantage of the attorney-client privilege and attorney work product doctrines, where
applicable and appropriate.
B. Counsel always should be consulted regarding interim
employment actions and notices, and compliance
with institutional procedures and external law.
C. The size of the institution and the amount of sexual
harassment investigative experience within the institution ultimately will dictate the specific role of in-house
general counsel or the potential benefits of retaining
outside counsel.
D. Collegial cooperation and consultation among university counsel, human resources (whether academic or
staff), and institutional equity offices at all stages of
the investigation process constitute a best practice.
XXI. Concluding the Investigation
A. Review notes to determine if all relevant facts have
been gathered, all witnesses have been interviewed,
and all relevant documents have been obtained. Seek
clarification of these as needed.
B. Make a list of all facts and the data that supports
each one.
C. Evaluate each fact and determine if the majority of
the evidence supports or refutes it.
D. Determine if an additional investigation would resolve
the disputed facts and, if so, conduct it.
E. Consult with legal counsel regarding any questions of
law that might affect the evaluation of the facts.
F. Review the components of sexual harassment, and
determine if the facts exist to support each component, e.g., was the conduct “unwelcome,” was it
based on gender, was it quid pro quo or hostile environment harassment, was it severe or pervasive, was
it abusive or hostile, or was there any tangible
adverse employment action. The institution’s procedures and state and/or federal law may dictate the
viewpoint from which to make these assessments.
If not, use the viewpoint of a reasonable person.
G. Prepare a written report describing the complaint
allegations and the factual findings. A chronological
23
presentation may be the easiest to follow. Include a
description of all the interviews and any documents
reviewed. Distinguish between first-hand knowledge
and hearsay. Determine if reasonable cause exists to
believe whether the institution’s sexual harassment
policy has been violated and state the rationale for
such.
D. If the conclusion is that offensive remarks, but no
threats, were made, and that the complainant is
annoyed but not injured, one possible resolution is to
recommend that the harasser be told to stop and that
the directive be followed up in writing. People tend
to take a written letter more seriously than an oral
warning.
H. Depending on the institution’s procedures, the report
also may include a recommendation for a particular
corrective, disciplinary sanction if cause is found. The
sanction proposed needs to be one reasonably calculated to end the harassment and avoid its repetition.
E. If the conclusion is that it was not harassment, but
welcomed behavior, consider recommending that the
alleged harasser be reprimanded for poor judgment if
he or she is the complainant’s co-worker, or be subject to more severe discipline if he or she is the complainant’s supervisor or manager (as the latter should
be held to a higher standard of behavior).
XXII. Post Investigation
A. Share the outcome of the investigation separately
with the complainant and the alleged harasser. If
harassment has been found, meet first with the
alleged harasser to allow one additional opportunity
for an explanation of his or her side of the story.
Inform the alleged harasser of the institution’s procedure from that point, e.g., the supervisor will
determine the discipline to be imposed, the alleged
harasser may request a hearing on the proposed
discipline, the decision may be appealed within the
institution, etc. Remind the alleged harasser that
retaliation is illegal, and will be further cause for
discipline.
24
F. If the conclusion is that the complainant made a
knowingly false complaint, this should be treated as
a serious offense, with appropriate severe discipline
for the complainant. Every effort should be made to
rehabilitate the reputation of the accused harasser.
G. If there are multiple complainants, or the complainant
suffers any adverse tangible employment (e.g., demotion or discharge), or quid pro quo harassment is
found, or the conduct is similarly egregious, a recommendation of a suspension, transfer, or termination
of the sexual harasser may be in order.
H. In such a situation, consider recommending paid
counseling for the complainant.
B. The alleged harasser should receive a copy of the
document that will be used to support disciplinary
action. The complainant need not receive the actual
document, but should have the results summarized
orally or in writing, unless state law prohibits this.
The complainant also should be told if the allegations
were substantiated, and what, if any, appropriate disciplinary action will be taken. The complainant needs
to know of any proposed restrictions on the behavior
of the alleged harasser, which, if violated, would
affect the complainant, and who to notify at the
institution should that occur. Finally, the complainant
should be reminded of who to notify in the event
there is retaliation.
I. If it is workplace harassment, consider recommending
transfer of the harasser or the complainant (consider
the latter only if some disciplinary action occurs
against the harasser so that the complainant is not
penalized for complaining).
C. If a complainant decides not to go forward at some
point during the investigation, the institution may still
be liable for any future incidents. Therefore, do not
require a complaint to be investigated to a conclusion
in order to warn an alleged harasser of inappropriate
behavior.
K. Share the report with the appropriate administrators
responsible for supervising the alleged harasser and
imposing the discipline.
J. Always be aware of the possibility that a supervisor
may over-react to an allegation that an employee has
committed sexual harassment because of other possible work-related performance problems that the
supervisor has had with the employee. To over-punish
for a particular sexual harassment incident may result
in the loss of credibility for the investigative program.
Above all else, it is important to be consistent in the
recommended disciplinary sanctions.
L. Follow up at reasonable intervals to ensure that there
is no recurrence of harassment and no retaliation.
25
M.Maintain the investigative file in a location that
preserves its confidentiality, consistent with applicable
records laws and institutional policy.
XXIII. Conclusion: Key Tips for Conducting a
Successful Sexual Harassment Investigation
A. Avoid excessive delay in beginning the investigation.
B. Choose qualified and trained investigators.
C. Never “guarantee” confidentiality.
D. Assure the complainant and witnesses that the
institution takes its anti-retaliation policy seriously.
E. Assure the complainant and witnesses that confidentiality will be preserved to the extent permitted and
required by law.
F. Do not give out information regarding the investigation to anyone who does not have an absolute need
to know, except as required by law or protected by
attorney/client privilege.
G. Strictly comply with all university policies regarding
discipline and discharge.
NACUA Publications
NACUA publishes a variety of pamphlets, monographs,
compendia, and other resources of interest to both
higher education attorneys and administrators. The
publication series offers more than 50 publications of
different types and categories, and new titles are added
regularly. For the most up-to-date listing of publications
offerings and more detailed descriptions of any of the
publications listed below, please go to:
http://www.nacua.org/publications/index.asp.
NOTE: Prices are shown below as member institution price,
followed by non-member price.
Pamphlets/Monographs
Access to Institutions of Higher Education for Students with
Disabilities. $12/$15
Accommodating Faculty and Staff with Psychiatric Disabilities.
$18/$21
H. Strictly comply with any applicable collective bargaining agreements.
The Campus as Creditor: A Bankruptcy Primer on Educational
Debts. $25/$30
I. Provide appropriate feedback to the complainant, the
respondent, and the respondent’s supervisor throughout the process.
Campus Police Authority: Understanding Your Officers’
Territorial Jurisdiction, 2006 Edition. $21/$25
J. Effect fairness to the respondent and, at the very
least, provide any due process required by law or
institutional policy.
K Document as appropriate, and conduct a prompt,
thorough, and complete investigation.
L. Use the institution’s best efforts to conclude the
investigation with an appropriate resolution, after
consultation with academic and/or human resources
staff, the affected department, institutional equity
offices, and legal counsel, as appropriate.
Computer Access: Selected Issues Affecting Higher Education,
2nd Ed. $18/$21
Copyright Issues in Higher Education, 2005 Edition. $21/$25
Crime on Campus, 2nd Ed. $25/$30
Defamation Issues in Higher Education. $13/$16
The Dismissal of Students with Mental Disabilities. 2nd Ed.
$13/$16
The Family Educational Rights and Privacy Act: A General
Overview. $13/$16
The Family Medical Leave Act of 1993: Applications in Higher
Education. $13/$16
HIPAA and Research. $13/$16
The HIPAA Privacy Regulations and Student Health Centers.
$13/$16
How to Conduct a Sexual Harassment Investigation,
2006 Update. $15/$18
Immigration Law: Faculty and Staff Issues. $21/$25
Managing Financial Conflicts of Interest in Human Subjects
Research. $13/$16
(continued)
26
27
Negotiating a Faculty Collective Bargaining Agreement.
$15/$18
Race-Conscious Admissions and Financial Aid Programs.
$25/$30
Students with Learning and Psychiatric Disabilities. $18/$21
Understanding Attorney-Client Privilege Issues in the
College and University Setting. $18/$21
What to Do When OSHA Comes Calling. $10/$13
What to Do When the EEOC Comes Knocking on Your
Campus Door. $13/$16
What to Do When the NCAA Comes Calling. $21/$25
What to Do When the U.S.Department of Education,
Office for Civil Rights Comes to Campus. $13/$16
2000 Title IX In-House Audit of Athletic Programs. $20/$25
Year 2000 Cumulative Supplement to The Law of Higher
Education, 3rd Ed. $65/$65
Practical Litigation Series
I’ve Been Sued: What Happens Now? $3/$3.50
Helping Your Institution to Defend Yourself $3/$3.50
The Settlement Process $3/$3.50
Giving a Deposition: A Witness Guide $3/$3.50
Overview of a Lawsuit $3/$3.50
Why You Can’t Sue State U. $13/$16
For More Information
Compendia/Special Publications
The NACUA Publications Brochure, with detailed descriptions
of the resources listed above, can be found at:
http://www.nacua.org/publications/brochure.pdf
Academic Program Closures, 2nd Ed. $85/$100
Accommodating Students with Learning and Emotional
Disabilities, 2nd Ed. Binder: $110 / $155; CD-ROM:
$95 / $140
Employment Discrimination Training for Colleges and
Universities. $85/$100
Employment Issues in Higher Education, 2nd Ed. $85/$100
Environmental Law: Selected Issues for Higher Education
Managers and Counsel. $60/$70
The Family Educational Rights and Privacy Act, 2nd Ed.
$95/$125
Instructional Supplement to The Law of Higher Education,
3rd Ed., Rev. Ed. $60/$60
Intellectual Property Issues in Higher Education, 2nd Ed.
$85/$100
Legal Issues in Sponsored Research Programs: From Contracting
to Compliance. Binder: $110 / $155; CD-ROM: $95 / $140.
NACUA Contract Formbook CD-ROM. $250 (members only)
The NACUA Handbook for Lawyers New to Higher Education.
$150/$195
Online Education. $85/$100
A Practical Guide to Title IX in Athletics: Law, Principles, and
Practices, 2nd Ed. $85/$100
Record Keeping and Reporting Requirements for Independent
and Public Colleges and Universities. Binder: $65 / $80;
Electronic: $50 / $65
Sexual Harassment on Campus, 4th Ed. $85/$100
Student Disciplinary Issues, 3rd Ed. Binder: $95 / $140;
CD-ROM: $80 / $125.
Study Abroad in Higher Education: Program Administration
and Risk Management. Binder: $85 / $115; CD-ROM:
$70 / $100
28
Technology Transfer Issues for Colleges and Universities:
A Legal Compendium. Binder: $95 / $140; CD-ROM:
$80 / $125
For a list of publications available on-line, please go to:
http://www.nacua.org/publications/pubs/nacuaonline.asp
To place an order, please go to the on-line order form at:
http://www.nacua.org/CVWEB/products.asp
National Association of College
and University Attorneys
One Dupont Circle, NW, Suite 620
Washington, DC 20036
202-833-8390
FAX 202-296-8379
www.nacua.org