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    February 2020

    #MeToo in Higher Ed: Sexual Misconduct Allegations

    Higher education institutions have felt the #MeToo movement since it first swept through politics, journalism, and entertainment in 2017. Many institutions are experiencing a wave of social media posts that claim sexual misconduct by current or former employees. Posters are sometimes anonymous, and the level of detail they provide varies greatly. The alleged misconduct may have occurred years or even decades ago.

    Schools faced with these posts often ask, “What should we do? Must we respond to charges made only on social media?” The short answer is yes. United Educators (UE) recommends institutions take all allegations seriously and respond to them to the extent possible, regardless of how they are brought to light, to ensure student safety and manage reputational risk. The response must be appropriate and reasonable under the circumstances. For example, while an institution should never simply dismiss an incident that allegedly occurred years ago, perhaps before it employed the accused individual, a full investigation may be particularly difficult.

    When addressing sexual misconduct allegations made in social media posts, institutions should:

    • Identify the individuals involved, if possible. If an anonymous social media post accuses an unnamed institution employee of sexual harassment or assault, the institution should attempt to identify the parties. Institutions are not required to do the impossible; if neither party can be identified, there may be nothing more the institution reasonably can do. However, this depends on the specific circumstances.
    • Assess credibility. As with any accusation of improper conduct, the institution must assess the accuser’s credibility. For example:
      • Did the accusers post on behalf of themselves or someone else?
      • If the latter, what is the poster’s relationship to the alleged victim? How did the poster learn about the alleged misconduct?
      • Is the alleged victim willing to be interviewed?
      • Are witnesses or evidence such as emails, voice mails, texts, or letters available to support the allegations?
      • What other information may bear on the accuser’s credibility?
    • Examine the current danger to campus. The degree of danger depends on the specific allegations, especially whether the accused is a current employee and whether the allegations involve one incident or a course of misconduct.
    • Look for patterns. Is the same employee or faculty member named as a perpetrator more than once? This in itself does not determine guilt, but it warrants a particularly close look at the named individual.
    • Keep in mind the rights of accused individuals. For allegations against a current employee, proceed with caution and adhere strictly to the institution’s employee or faculty handbook, as appropriate. In most matters involving current employees, review:
      • Harassment prevention training records
      • Whether other complaints have been made against them
      • Their institutional emails
      • Comments in student evaluations (if faculty is accused)

      If institutional leaders decide to remove an employee from campus before they complete an investigation — for example, if there is reason to believe the employee poses a present threat — it is usually best to suspend the individual with pay. If an investigation is inconclusive, leaders should review the institution's policies and handbooks to determine whether they can take any steps short of discipline, such as a frank discussion with the employee about behavioral expectations.

    • Comply with legal requirements. Consider whether a particular sexual misconduct allegation triggers a legal duty, such as reporting under the Clery Act or state mandatory reporting laws for sexual abuse of minors.
    • Document everything. Document all actions you take in response to social media disclosures of sexual harassment or assault. This is crucial even if your institution hits a brick wall and cannot proceed with investigating for any reason, including because the original poster refuses to cooperate.

    By Hillary Pettegrew, senior risk management counsel

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