TITLE IX INVESTIGATIONS AND SEXUAL MISCONDUCT

By: Kym Pasqualini, Feature Writer for Lauth Investigations

Scandals can arise anywhere, especially in the workplace, and schools are especially vulnerable. Allegations of sexual misconduct, assault and other accusations violating workplace compliance and law, have severe civil and criminal liability.

We have all heard about sports-related and college scandals, and the newly and highly publicized accusations against Harvey Weinstein that seemingly were permitted to go on for years without anyone acting. These situations can create not only a media frenzy, social media ubiquity and significant liability within a company.  How complaints are handled can affect an institution’s reputation for years.

Institutional leadership has a moral, ethical and legal obligation to protect students and employees.
Institutional leadership has a moral, ethical and legal obligation to protect students and employees.

Most importantly, it is the responsibility of an institution to protect their students and employees, and the leadership has a legal, moral and ethical obligation to do so.

An institution’s investigative process, in response to sexual assault or misconduct, needs to be geared toward determining what happened without having preconceived notions of the outcome. The process should be consistently applied, clearly documented, and show the steps followed in achieving the conclusion.

Maintaining a record of this process and the findings is critical to minimizing risk should there be a consequent lawsuit or investigation by an outside entity.

Title IX

President Richard M. Nixon signed Title IX Educational Amendments of 1972 as a comprehensive federal law prohibiting discrimination on the basis of sex in any federally funded education program or activity. In addition, protecting employees and students from sexual misconduct.

Sexual assault and misconduct investigations not meeting legal standards are increasingly resulting in very costly claims. Ensuring Title IX compliance is the best way to minimize risk.

In a 2011, “Dear Colleague” letter (DCL) was issued by the U.S. Department of Education’s Office for Civil Rights (OCR). According to the letter, investigations must be:

  1. Prompt – The DCL defines the meaning of “prompt” as conducting an investigation within 60 days, acknowledging more complex cases may require more time. 
  1. Thorough – OCR mandates a case must be “thorough” and the investigation must be conducted in good faith. The employer must have legal grounds to believe the employee participated in misconduct before any disciplinary action is taken.
Courts expect a thorough and adequate investigation in all sexual assault and misconduct cases.
Courts expect a thorough and adequate investigation in all sexual assault and misconduct cases.

Courts do not focus on whether the employer made the right conclusion but instead, examine the determining process used to ensure the investigation was adequately thorough. For example, analyzing the type and number of interviews conducted, confidentially of the interviews, were they handwritten or recorded and how. The court also notes if the investigator asked non-leading, open-ended questions; encouraged witnesses to clarify or correct testimony; or challenged information provided by witnesses.

Small mistakes may not damage an investigation; however, a case could be considered inadequate simply on the pretense an individual lacked prior experience investigating sexual harassment cases or failed to adequately explore the allegations.

  1. Impartial – It is necessary to remain impartial. For example, the person who made the complaint should not be a supervisor over the individual investigating the complaint. A qualified investigator should always be used to investigate sexual assault and harassment complaints, one who can remain objective and has no stake in the outcome of the case.

There are two recommended models of investigation to be conducted by a trained investigator understanding of the evidence needed to sustain or disprove allegations.

What Are The Numbers?

The Chronicle of Higher Education (CHE) tracks federal investigations of colleges for potential violations of the gender-equity law Title IX involving alleged sexual violence. According to CHE, as of January 10, 2018, there were 337 sexual violence cases under investigation at 243 postsecondary institutions.

A campus investigation differs from a police investigation; however, both can occur at the same time. It just depends on where the victim reports the assault. A victim may feel more comfortable going to campus police than law enforcement for fear they may be doubted or blamed, especially in cases of rape by an acquaintance. Though advocates fear victims being discouraged from coming forward, in several states, lawmakers are now proposing colleges be required to notify law enforcement.

Pre-Investigation

In this model, the investigator meets individually with both parties and witnesses prior to any hearing and provides the information to a panel or hearing official. The goal is to maximize the information obtained during the interview process by questioning parties and witnesses privately to minimize stress for the participants, while also protecting testimony.

Prior-Hearing Investigative Process

The other common model, the investigation is part of the hearing process where an official panel or hearing official questions witnesses, hears testimony, reviews documents and evidence, and makes a conclusion.

While this model may work well for some institutions, it tends to be viewed as adversarial and may affect the overall reliability of the case.

According to United Education’s EduRisk program, while it is the institution’s responsibility to investigate alleged sexual assaults or harassment, and decide if discipline is warranted, this model can inappropriately burden the parties to present their cases by identifying witnesses and evidence for school officials to consider. In addition, most school officials are not trained investigators or private detectives with experience working with such sensitive circumstances.

Proper Documentation

Writing ImageThe institution has the responsibility to properly document its investigation of any sexual misconduct allegation to provide a reliable record of all evidence the findings are based. This is especially critical when an allegation may appear meritless on the surface.

Though courts do not favor one method of documenting interviews, ideally, in addition to a final report, an investigator should provide a summarization of evidence, assessment of credibility of witnesses interviewed, and contain only factual conclusions.

Policies and Procedures

Given the importance of sexual assault and other misconduct allegations, it is necessary to have the appropriate policy and procedures to demonstrate the institution’s commitment to the safety of its employees and students, help prevent avoidable crises and support an efficient and effective response.

It is vital to understand when an investigation is warranted, and the purpose of the investigations, to include planning and organizing.

Every institution or company should have policies in place specifically addressing suspected misconduct to help respond reasonably with guidance as to how staff should respond and recommended to utilize experts to help identify vulnerabilities that may exist in an institutions current policies and procedure.

What a Federal Investigation Entails

To most onlookers, the federal investigation process of an institution is opaque. The OCR informs a college it is under investigation and informs whether it is based upon a compliance review or complaint. When it is a complaint, typically, the complainant’s information is not made available.

Federal officials require a great deal of information, such as policies, training material, investigative reports, interviews, incident reports, hearing documents. They will visit the campus to meet with both students and employees as well.

Some OCR investigations can conclude quietly, with an “administrative closure,” “early complaint resolution,” or “insufficient evidence.” Other investigations can result is a letter of findings, not seen until the conclusion, along with a “negotiated resolution agreement” that details policies and procedures a college must change or adopt. To comply, these often require implementing or expanding training programs for faculty, students, and staff, along with modifying policy and procedure.

Investigations are getting tougher. The OCR will likely monitor the college’s progress for years to come.

The best way to avoid investigative, policy and procedure pitfalls is to respond appropriately the first time using a professional investigative agency or experienced private investigator.

Fair and Independent Investigations

Lauth Investigations Sexual Harassment Division is headed by founder Thomas Lauth who has extensive experience investigating sexual misconduct.

One thing has become abundantly clear, after watching the numerous news stories covering sexual assault and harassment, is remaining mindful of the sensitivities involved in such an investigation, making it necessary to address each client’s needs. In addition, a rapid response,  both thorough and professional, is necessary so as not to cause more harm.

Sexual assault and other misconduct has serious psychological consequences on the victim. Lauth Investigations professionally conducts sensitive internal investigations related to sexual assault and misconduct with utmost integrity. Our private investigators take great care to develop facts, determine credibility, and reach findings with objectivity and independence, while also exercising discretion and sensitivity.

During an investigation, Lauth Investigations expert private investigators will interview the complainant and witnesses, examine relevant documents, obtain written statements, medical records, email and other communication. At conclusion, a confidential report is delivered to include finding and recommendations that adhere to court and panel oversight.

Title IX investigations differ from a law enforcement investigation, and critical in the initial phase to ensure evidence is preserved, whether it be physical evidence, video surveillance or other important aspects of a proper investigation. Lauth investigators will ensure the investigation is treated with utmost integrity so as not to compromise the investigation.

Our experts can also evaluate and provide recommendations of current policies and procedures to help strengthen the response to sexual assault and misconduct.

 

 

OLYMPUS DIGITAL CAMERAThomas Lauth

Investigations Division

Email: tlauth.investigations@gmail.com

Tel: 317.951.1100