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Academic Institutions and Effective Harassment Investigation Procedures: Nipping a Harassment Claim in the Bud
 

The University of North Carolina at Chapel Hill recently announced the settlement of a Title IX sexual harassment case brought by a former member of the University’s female soccer team, claiming that her coach had created a hostile environment through inappropriate sexually explicit comments. Under the terms of the settlement, the coach acknowledged the conduct, the University agreed to pay the athlete the sum of $385,000 and the University acceded to an outside review of its sexual harassment policy. This all came after the United States Court of Appeals for the Fourth Circuit, in April 2007, reversed, in part, a decision of a lower court rejecting the athlete's claim that North Carolina knowingly permitted the hostile environment to continue. See http://pacer.ca4.uscourts.gov/opinion.pdf/042447A.P.pdf. Significantly, it was reported that the case could have been settled early on by a letter of apology from the coach.

This case and a plethora of other recently decided cases, including a recent $5.85 million verdict, also a Title IX sexual harassment case, brought by a woman's volleyball coach against Fresno State University, confirms that claims of sexual and other harassment (e.g., racial harassment) are on the increase in higher education. These cases also demonstrate that universities must take immediate action once a charge of sexual or other harassment is made. Otherwise, as with North Carolina and Fresno State, the institution may incur needless embarrassment and pay out significant litigation costs and damages.

Most institutions of higher education have promulgated anti-harassment policies consistent with the law. However, such a policy is only the first step if a school is to avoid liability. As the foregoing cases illustrate, academic institutions are frequently not so adept when investigating a complaint of harassment. They can be even less skilled in taking quick and appropriate corrective action in response to alleged harassment. Deficiencies in either of these efforts can have a profound negative impact on the institution in the event litigation ensues. Since a university’s prompt and effective response to a complaint can limit or entirely eliminate its liability in a harassment lawsuit, it is imperative that all educational institutions employ clearly articulated procedures to investigate and resolve harassment complaints. This update highlights some important components of a proper investigation.

A. The Importance of Harassment Training

Cases like the above continue to illustrate that, despite the contrary assumption, many individuals in the academy still lack a full understanding of the laws prohibiting harassment including sexual harassment. Therefore, as a preliminary matter, it is absolutely critical that the institution conduct broad based training of supervisors, coaches, faculty and staff at all levels as to what constitutes harassment, discrimination and retaliation, as well as training on how to respond to and address complaints they observe, or which are reported to them. Training should be scheduled and held on a regular basis. Without the appropriate training, a complaint may not come to the attention of responsible administrators until after a lawsuit is filed. This is a grave concern considering that in assessing ultimate institutional liability courts consider what, if anything, the institution did to remedy a complained-of situation when it was first reported. An effective, thorough training program is the first step in any remedial plan.

Training the academic and coaching staff is not only important to help identify claims of sexual harassment, it is also important to reduce the risk from harassing acts themselves. In the employment context, eliminating such claims is of particular value. For example, under federal and state law, an institution can be strictly liable for the acts of supervisors even though the acts of sexual harassment are not immediately reported or do not come to the attention of higher administration before a lawsuit is filed.[1] This strict liability accrues to misconduct engaged in by any supervisory person in a position to control the employee’s work, who has power over compensation or promotion or who has significant input into decisions relating to the employee's discipline or discharge. The hope is that regular training will sensitize first-tier managers and minimize the risk that they will become perpetrators.

B. Selecting An Appropriate Investigator

While a university's entire staff should be trained to understand what constitutes harassment and how to spot and report potential claims, typically, it is best for the institution to identify specialists to conduct any required investigation (such as the human resource director, a personnel manager, in-house counsel, or similar professional). An investigator should have a clean background (no conviction record or history of harassment), have a working knowledge of the institution's policies, be familiar with federal, state and local anti-discrimination laws, and have the capacity to be (and also to appear to be) impartial, objective and fair during the entire investigation. These attributes ensure that the investigation will be conducted in a consistent and competent fashion and that it is perceived as having integrity.

The ultimate goal of this process is to assure that the harassment investigation is efficient and conducted in a professional and respectful fashion. A "make it up as you go along" attitude, or worse, an accusatory approach by the investigator, can result in the very disruption that the process seeks to cure. For that reason alone, it is important that the investigator be non-confrontational, particularly when interviewing the alleged victim and the purported accuser. The investigator should also have qualities that encourage witnesses to speak without the fear that they will be adversely treated.

C. A Word of Caution – The Investigation is Likely Not Privileged

Before the investigation actually begins, a word of caution is advised. No privilege attaches to an investigation unless it is conducted by or through legal counsel. And, even if conducted through legal counsel, the attorney/client privilege is narrowly drawn in Illinois and may not apply to factual information supplied to legal counsel. Therefore, great care is required to be sure that the investigation does not produce admissions against interest and a roadmap to easy victory for a plaintiff’s attorney. In order to minimize such risks, the investigator should limit questions to requests for factual information only, should set to writing only verified factual details and should steer away from recording mental impressions, conclusions or speculation, particularly ones having the effect of suggesting wrong, fault or liability on behalf of the institution or its agents.

D. Documenting the Investigation

The lack of a privilege shield does not mean that a record of what happens should not be made. To the contrary, a careful record of all statements made should be accurately memorialized. Such a contemporaneous record, especially of what the claimed victim said, can be a powerful defense tool in the event litigation ensues. To the same end, no person should be interviewed alone. It is advisable for the interviewer to have a witness present not only to take notes, but also to serve as a corroborating witness in the event the interviewee later tries to challenge the content of the interview or make accusations about what did and did not occur during the interview process.

There are a number of steps that an institution can take to ensure that the documentation of an investigation is properly drafted and helpful. First, the person drafting the notes should review them for accuracy and make sure that there are no inconsistencies or gaps. Second, notes should be taken contemporaneous with, or as soon as possible after, each interview. Investigation notes drafted long after the relevant events, or worse, only after a discrimination lawsuit is filed, are generally thought to be significantly less reliable than those taken at the time of the investigation. Third, the notes should clearly identify when they were drafted and who drafted them, as well as whether anybody else was present during the interview. Fourth, at the conclusion of each interview (or as soon as possible thereafter), the investigator should consider reviewing with the witness the points contained in the notes to confirm their accuracy and, if possible, get the witness to sign and date the notes agreeing with the content. Finally, given the importance of a proper investigation, it is always advisable to consult an attorney to make sure that any documentation created by the institution related to its investigation is drafted correctly and can affirmatively be used for the defense in a subsequent lawsuit.

E. Gathering of Relevant Documents

While it is rare that any acts of alleged harassment themselves will be directly evidenced in writing, frequently documents contain important circumstantial evidence, tending to support or refute a claim (e.g., the alleged victim was sent an e-mail removing her from the team right after she was solicited for a sexual favor, or the alleged victim was written up for misbehavior just after she rejected a sexual advance). For this reason, all witnesses should be asked to provide all relevant documents. These documents should be gathered and retained as part of the investigation. This includes not only paper documents but also any e-mail chains and other electronically stored information. Many times judges recognize that oral testimony is inherently unreliable and that documents provide much more persuasive evidence as to what actually happened at the time. Documentary evidence provides powerful support in any litigated claim.

F. Litigation Hold on Institutional Documents

Under new federal e-discovery rules, draconian penalties can result if an institution permits the destruction or deletion of relevant electronically stored information after the institution is notified of a claim. These penalties can include fines, adverse evidentiary holdings, and even adverse judgments. To avoid such a possibility, as soon as the institution has knowledge of a possible claim, a written directive should be issued to all relevant users and any network support units to preserve all electronic information including e-mails and other similar data related to the matter. A similar directive should be issued to the appropriate individuals to preserve paper documents.

G. Interviewing the Alleged Victim

The complainant’s interview is the logical first step in the actual investigation. Before the interview, the purported victim should be encouraged (but not mandated) to put his or her complaint in writing identifying: 1) the date(s) of the incident(s): 2) the approximate time(s) of the incident(s), 3) the place(s) of the incident(s), 4) others involved, 5) any witnesses to the incident(s), 6) the precise nature of the claim(s), and 7) any additional comments. The alleged victim should sign and date the form. If this is not done, then, at a minimum, the investigator should obtain this information informally through the interview.

Interviewing the complainant as soon as possible after the complaint has been made is vital to a successful outcome. The interview serves two purposes. First, it shows the alleged victim that the institution takes the complaint seriously. Second, it offers the opportunity to obtain the facts before the purported victim hires an attorney, a development which frequently results in an embellishment of the facts. In addition to confirming the who, what, when, where, and how of the alleged harassment, the interview should focus on asking the complaining witness questions like:

   · How did you react?
   · What response did you make when the incident occurred or afterwards?
   · How did the harassment affect you?
   · How has the harassment affected your job or your studies?
   · Are there any persons with relevant information?
   · Did the person who harassed you harass anyone else?
   · Do you know whether anyone else complained about harassment by that person?
   · Can you continue to work in your worksite/can you continue with your current program?
   · Are there any notes, physical evidence or other documentation regarding the incidents?
   · How would you like to see this situation resolved?
   · Do you know of any other relevant information?

Even if there is no basis to the claim of harassment (which is often the case), retaliation is a separate actionable wrong. Therefore, both before and after the interview, it is important to remind the complainant that he or she will not be retaliated against for providing truthful information. This may mean that it will be necessary to separate the alleged harasser and the victim after the complaint. In extreme cases, it may be necessary to suspend the alleged harasser with pay pending the outcome of the investigation, especially if the claimed victim is in regular contact with the harasser. In any event, all reasonable steps should be taken to absolutely assure that the complainant is not subject to any form of adverse treatment, hostility or recrimination as a result of making the complaint.

In some cases, the alleged victim may ask to remain anonymous or may even ask the institution not to investigate the matter since it “is not a big deal.” In either of these circumstances, the institution still has the legal obligation to investigate and, if appropriate, take steps to eliminate any hostile environment. To alleviate the complainant's concerns, it is advisable to inform him or her that every effort will be made to keep the matter confidential, but that secrecy cannot be assured because the university has the obligation to fully investigate and remedy the hostile environment.

H. Interviewing the Alleged Harasser

The interview of the alleged harasser is also crucial to the investigation. At the outset, the investigator should inform the alleged harasser that a complaint has been brought against him or her and that the institution is required by law to investigate all complaints whether or not they are valid. Assurances should be given that no conclusions have been reached and that the purpose of the interview is only to gather facts and obtain information.

Whether the interview is the second interview or the last interview depends on the circumstances. However, frequently, it is preferable to hold the alleged harasser's interview until the end because, then, the interviewer can verify collateral information obtained from the complaining party and others during the investigation. This is the best way to determine whether the school’s interests and that of the alleged harasser are adverse (i.e., the harassment likely occurred) or aligned (i.e., the harassment claim has no merit).

Similar to the other witnesses, the alleged harasser should be asked whether he or she has any relevant documents. Also, some questions for the alleged harasser include:

   · What is your response to the allegations [one by one]?
   · Is the complainant lying and what motives could he/she have?
   · Have any other complaints been made against you?
   · Have you ever been disciplined before for harassment?
   · Are there any persons who have relevant information?
   · Are there any notes, physical evidence or other documentation regarding the incidents?
   · Do you know of any other relevant information?

I. Interviewing Other Witnesses

No investigation is complete until all witnesses or others with relevant information are interviewed. This includes not only those specifically identified, but also others who may know about the alleged hostile environment. These third-party witnesses should be informed as to the reason for the interview, assured that there will be no retaliation for providing truthful information, as well as informed of the institution’s legal obligation to investigate the incident. Following are some important questions to ask third parties or witnesses:

   · What did you see or hear?
   · When did the incident occur?
   · Describe the alleged harasser's behavior towards the complainant and towards others in the workplace?
   · What did the complainant tell you?
   · Has the conduct occurred in the past?
   · Do you know of any other relevant information?
   · Are there any other persons who have relevant information?

After gathering all the relevant information, the interviewer should direct the witness not to behave any differently towards any of the parties involved (to the extent that names were disclosed or easily identifiable based on the questioning). The witness should be instructed to follow up with the investigator if any further relevant information comes to her or his attention. Finally, to the extent possible, the witness should be instructed to keep the content of the interview confidential and to not discuss it with others. The investigator should further caution all witnesses that attempting to influence the investigation or disclosing confidential information by discussing it with others can itself be cause for disciplinary action.

J. Concluding the Investigation

After all interviews have been completed, the investigator should organize all information and documents accumulated, check for inconsistencies and carefully review the interview notes. If there are any inconsistencies, follow-up interviews should be scheduled to resolve them. It is important to tie up loose ends so that the investigation is both thorough and reliable.

Additionally, at the conclusion of the investigation, a report should be made to the relevant decision maker. Again, the report should be prepared and this process undertaken mindful that, in all likelihood, the report will be discoverable if the complaining party sues. But a well developed and documented report will afford an excellent means to illustrate that the investigation was conducted thoroughly and promptly, a plus in any litigation. The decision maker must then decide whether harassment, discrimination or retaliation has occurred and, if so, what remedial steps to take.

K. Taking Prompt, Remedial Action In Response to the Complaint

While a discussion of what constitutes a reasonable and appropriate remedial action to take after a complaint is entirely dependent on the specific facts of each situation, it is important that any action taken against the alleged harasser be determined only after a thorough investigation. Rash action has its own set of difficulties. Alternatively, no action in the face of evidence of a valid claim has even more serious consequences since the institution has a legal duty to ameliorate a hostile work environment.

The institution must also be careful and treat similar complaints of harassment in a similar fashion, applying the same standards to similar situations. In the other words, if one employee is immediately terminated for making sexually explicit comments to female co-workers, another employee who later conducts himself/herself in a similar fashion should likewise be immediately terminated. All too often, this rule is inadvertently violated leading to the argument that the complaining employee is being treated differently than others. In this regard, it is important to keep in mind that "hair splitting" arguments distinguishing one situation from another are many times ineffective, hard to justify to a jury, and can even be seen as devious. Therefore, any difference in treatment of perpetrators in similar situations should be clearly justifiable, easy to explain and well documented.

In some circumstances, the investigation may be inconclusive, for example, there are no corroborating witnesses to the asserted harassment (e.g., “he said/she said” situation). If this occurs, it is recommended to inform the parties that a thorough investigation was conducted but was inconclusive. The investigator should nonetheless encourage the alleged victim to immediately report any other instances of claimed harassment, discrimination or retaliation, and assure him or her that the institution will conduct another investigation if merited.

L. Conclusion

Incorporating the foregoing steps into any investigations of harassment will go a long way to minimize or eliminate any potential institutional liability. Careful adherence to such a process well could have saved institutions like North Carolina and Fresno State millions of dollars in legal fees and damages. Additionally, an aggressive posture toward investigating and resolving such claims will foster an educational environment illustrating not only that harassment, discrimination and retaliation will not be tolerated but that, if it does occur, it will be dealt with quickly and effectively.

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[1] See, for instance, the recently decided case of Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, 375 Ill. App. 3d 834 (4th Dist., 2007).