April, national Sexual Assault Awareness Month, has coincided with a number of high-profile complaints against colleges and universities for their alleged failure under Title IX of the Educational Amendments of 1972 to adequately respond to sexual harassment and sexual misconduct against students. Just this month, Harvard College, the University of Massachusetts, and now Brown University have all found themselves the center of such media attention. Employers also continue to find themselves in the news (and courts) for failing to respond promptly to sexual harassment in the workplace, as required under Title VII of the 1964 Civil Rights Act and related state laws. Just several weeks ago Wal-Mart agreed to pay over $363,000 to settle a sexual harassment suit alleging that store managers knew for several years about ongoing sexual harassment of an intellectually disabled employee, but did nothing until after the employee filed a formal complaint. Regardless of whether an organization is a college, university or private employer governed by Title IX, Title VII or both, the message is the same: liability most certainly arises when an organization fails to adequately respond to reports of sexual harassment, by, for example, promptly investigating, and then taking steps to prevent its recurrence and to protect victims.
We offer the following advice for those wishing to avoid such consequences.
1. Your investigation is only as good as your investigator:
Often, investigations of sexual misconduct are best handled by a trained "outside" investigator who brings some skill, independence and impartiality to the fact-finding process. Not every organization, however, has the abundance of resources to hire an outside investigator in every instance, and may decide to appoint someone within the organization to conduct the investigation. It is crucial to select an investigator who is both impartial and regarded by others as such. Assign an investigator who has no meaningful relationship with complainant, respondent, or their witnesses, and who stands nothing to gain or lose from the outcome of the investigation.
2. Above all, an investigation must be
prompt, thorough and impartial:
The old adage, "justice delayed is justice denied," applies doubly in matters involving sexual harassment. Start the process of investigating as soon as there is information that some form of sexual harassment may have occurred. The Office of Civil Rights - and the courts - require swift and speedy responses to reports of sexual harassment, more so in cases involving violence. Meet with the complainant as soon as practicable after receiving a report. Follow up that meeting with an email to the complainant thanking her (or him) for meeting and outlining the investigation process and timeline. Invite the complainant and respondent to bring questions or concerns to the organization's attention.
3. Impartiality and Fairness:
To determine what occurred, an investigator must approach every matter with a completely open mind, providing both the complainant and respondent an equal opportunity to share their stories and to identify other potential witnesses and evidence. Although broadening the scope of the investigation may draw it out, it is important, especially in the Title IX context, that both sides have an opportunity to be heard.
4. Understand the dynamics of sexual harassment and sexual misconduct:
Sexual harassment and assault is often severely traumatic and emotionally debilitating. An investigator trained in understanding some of these emotional dynamics will be better able to assess witnesses and to ask appropriate questions, especially of the complainant. For example, in its attempts to better respond to sexual harassment in the military, the U.S. Department of Defense has developed an approach to questioning victims that takes into account the effects of such trauma. For instance, instead of asking a complainant to recount an event chronologically (and discounting her credibility when she fails to do so), she might first be asked just to recount whatever she can remember, how she felt, and any sensory recollections. It is also important to remind all witnesses that they should not suffer any retaliation for cooperating, and may not retaliate against others for doing so.
5. Do not pre-judge:
Avoid the tendency to discount witnesses or ignore potential evidence that, at the beginning of your investigation, may seem inconsequential. Make every effort to take into account all available information. Following an experience of sexual misconduct, a victim may behave in a way that seems counter-intuitive, or at odds with what they have just experienced. Reserve making judgment until you have reviewed all the evidence and interviewed all relevant witnesses.
6. Confidentiality:
Understand the limits of confidentiality before conducting interviews. Explain to every witness, including complainant and respondent, what you can and cannot keep confidential, and what information may be shared with others on a need to know basis. Responding to sexual misconduct requires a balancing act of respecting the complainant's privacy with the institution's obligation to provide a safe learning and working environment.
7. When interviewing witnesses, conduct direct examinations, not cross-examinations:
As every trial lawyer knows, a good direct examination is one that encourages the witness to tell their story. One should ask open-ended questions that allow the witness to fully and freely recount what they know. Follow-up with questions such as "is there anything else I should know about that?" A cross-examination, on the other hand, limits a witnesses responses by, for example, asking "either/or" questions. Avoid cross-examining witnesses.
8. Attempt to resolve inconsistencies:
When multiple witnesses give difference accounts of an event, take steps to find further information that may bear on the conflict, such as corroborating statements from other witnesses, or documents that are consistent with one version or another. In conducting investigations for our clients, we have been amazed by the amount of information we have uncovered by asking a witness to review her text messages with us. Other pertinent evidence to request includes keycard swipe reports, emails and voicemails, Facebook and other social media postings.
9. Memorialize witness interviews and document other evidence:
In most instances, witnesses will consent to have an interview recorded. Such consent should be obtained in writing before any recording is taken. There are many free "apps" that turn any smart phone into an audio recorder. Recording an interview permits the investigator to engage in a conversation with the witness, maintain eye contact, develop a strong rapport and to assess body language. We cannot overemphasize the value of having an interview recorded. If an interview is not recorded, be zealous in your note-taking; make every effort to write down everything that is said, even if it requires you to ask a witness to slow down or repeat themselves. Without a complete memorialization of the witness interview, facts may be forgotten or inadvertently skewed and you cannot be assured that your investigation, when complete, was either thorough or fair.
10. Write a report:
Although the scope of any written investigation will depend on the organization's policies and procedures, in no circumstance is it appropriate for an investigation to go undocumented. The report should, at a minimum, describe the allegations, identify all tangible evidence relating to the incident, identify all witnesses (including those who declined to be interviewed), relate both the complainant and respondent's version of events, and identify those facts that appear beyond dispute as well as those that remain disputed.
For assistance with an investigation, or for other legal advice, contact Allyson Kurker and Margaret Paget at Kurker Paget LLC.
