With students, faculty, and administrators poised to return to campus in person this fall, higher educational institutions must prepare for increased allegations of sexual harassment and consider whether their investigations and compliance programs are up to the task.
Below, we discuss five common missteps in sexual harassment investigations and compliance programs.
1. Failing to properly assess risks
To mitigate risk, organizations must first understand their particularized risk profile. Risk assessments are key for detecting and preventing potential sexual harassment issues before they become reputationally damaging.
But many institutions exclude sexual harassment from the scope of their risk assessment activities. And, when sexual harassment is covered in risk assessments, institutions may fail to adjust their standard approaches for this sensitive topic (e.g., asking questions in public settings or in non-anonymous surveys) or consider other important sources of information (e.g., investigation reports, hotline metrics).
A properly tailored risk assessment does not need to be costly or time-consuming but it will ensure that an institution’s risk profile correctly identifies key risks. The risk assessment will allow the organization to develop a roadmap for processes designed to protect the institution, its students or athletes, and other stakeholders from those risks. In designing a risk assessment, institutions should ask themselves:
- What are my particularized risks?
- What is the source (or sources) of those risks?
- Are my processes calibrated to mitigate those risks?
- What can I learn from other aspects of my operations (e.g., hotline reports, investigations) about the risks and my responses to them?
A risk assessment should also not be a one-time event; risk assessments should be repeated periodically as well as be triggered on an ad hoc basis by specific events or developments. In those instances, risks assessments should seek to identify how the organization’s risks have changed or whether new risks have surfaced.
2. Making credibility assessments with “he said, she said” evidence
Every day, we all make credibility assessments. The nature of sexual harassment allegations requires institutions do to the same.
Most times, perpetrators do not engage in sexual harassment in the open—alleged sex assaults almost always occur in private settings. The nature of these events results in the proverbial “he said, she said.”
It is normal for organizations to feel hamstrung in reaching a conclusion under these circumstances. But, not only is it OK to make a credibility determination, it is necessary when analyzing contradictory evidence from a complainant and the alleged perpetrator.
It is helpful to consider trial court instructions to juries making credibility determinations. For instance, judges may advise the jury to consider a witness’s manner and demeanor, any perceived bias or prejudice, and the reasonableness of testimony in consideration of other existing evidence.
Furthermore, an instruction can include language that explains that two people may see the same event but remember it differently. A judge normally instructs the jury that differing testimony is not inherently untrue.
In sexual harassment investigations, institutions should make these same considerations. Evidence may be limited or testimony may differ, but that does not mean that the allegation did not occur and that the institution cannot take steps to correct an alleged wrongdoing.
3. Expecting or requiring incontrovertible proof
Decision-makers should not expect incontrovertible proof that the alleged behavior did or did not occur.
Popular television shows and social media posts sometimes create the false impression that there must be video evidence, recording, or emails that explicitly illustrate the alleged misconduct. That is rarely the case and decision-makers cannot be paralyzed by those limitations.
Often, evidence is circumstantial and can be used to corroborate only portions of an account. Some evidence proves a fact directly, but most evidence provides indirect support for a fact. For example, a car that has been defrosted in the wintertime is circumstantial evidence that the vehicle may have been driven on a winter day.
The same is true in sexual harassment investigations. A complainant’s memory of events can be supported with call logs showing that they reached out to friends or family moments after the alleged event. Another example could be a complainant who took unexpected medical leave shortly after the time of the alleged event. Every investigation is different, but institutions should carefully consider and objectively weigh circumstantial evidence as part of a large fact-gathering and assessing process.
In cases of circumstantial evidence, many organizations choose to do nothing and rest on the fact that the allegation could not be incontrovertibly proven. However, organizations should be empowered to identify and implement a range of disciplinary and corrective measures to address those cases.
For example, removing the subject from on-campus housing is a potential option, while suspending the student is another. When a university or organization finds that the harassment occurred, failure to act will erode trust and perpetuate cultures of underreporting.
4. Missing the forest for the trees
More often than expected, investigations into one discreet issue will lead to inklings about others. For example, an investigation into an allegation that someone made a particular inappropriate sexual remark may include a witness statement that describes a different inappropriate comment or action.
Investigators may overlook or dismiss such information as out of scope or management may be wary of scope creep. However, if the information is credible, the scope of the initial investigation can and should be adjusted or a separate investigation opened. While it is important to stay focused on the particular investigation at hand, information about other potentially problematic behavior should not be dismissed.
In academic settings, in particular, a specific, limited allegation may reflect a complainant’s narrow view into a larger issue or an individual stepping forward on a discreet issue she or he feels is verifiable, while related issues persist and are known to others. Thus, even discreet allegations can be windows into larger problems and provide organizations with the opportunity to determine if there are broader opportunities for improvement.
5. Lacking process, or incomplete or inadequate documentation
No single policy or procedure can anticipate all possible investigation scenarios. That is no reason, however, for organizations not to have documented standards and guidelines for how to respond to, investigate, document, and escalate reports of sexual harassment or discrimination.
Academic institutions should have clear investigation guidelines that contemplate :(1) intake of and response to complaints, (2) routing of allegations to a legal or compliance function, (3) designation of authorized and independent investigation leads and support resources, (4) general guidance on scoping an investigation plan, (5) document and evidence preservation, (6) interview procedures, (7) documentation of findings and recommendations, and (7) escalation of issues to decision-makers empowered to take corrective measures.
Formalizing investigation procedures will ensure uniformity, objectivity, and transparency and will increase trust in the organization’s or institution’s ability to manage allegations of sexual harassment and discrimination, both by internal and external stakeholders.
The authors are all representatives of the Miller & Chevalier law firm.Â Alejandra Montenegro Almonte, vice-chair of the International Department, focuses on internal corporate compliance, internal investigations and government enforcement actions;Â Ann Sultan, the practice lead for the Europe-Caucasus-Asia region, guides companies and executives through complex internal and government investigations and helps companies create sustainable risk-based corporate compliance programs; andÂ Marcus Childress, a senior associate in the Litigation Department,Â focuses on white collar criminal defense, government and internal investigations, and complex litigation.