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Expect to see workplace sexual harassment cases take on the dynamics – and secrecy – of Title IX

Those of us who have covered sexual-misconduct cases in higher education – particularly since the Obama administration’s re-election push to unlawfully reshape Title IX enforcement – are going through deja vu as we watch the evolution of the #MeToo movement and swift fall of powerful men in entertainment, media and politics.

Harvard Law Prof. Jeannie Suk Gersen lays out a plausible roadmap for workplace sexual harassment response in The New Yorker, which boils down to Title IX redux.

Most workplaces are governed by Title VII, and legal and regulatory interpretations of Title IX often derived from Title VII caselaw, according to Suk Gersen:

[W]hat strikes a reasonable person as “severe or pervasive” [the legal test for harassment] has been evolving, particularly in the seismic cultural breakthroughs of #MeToo. It also makes sense for employers to use broader definitions of sexual harassment that enable them to address workplace misconduct before it becomes severe enough to constitute a hostile environment for legal purposes.

Amid the abject public apologies and semi-confessions by prominent men, some of the accused have chafed at the script and contested the allegations against them. Among them is Harold Ford, Jr., the former congressman who was fired from Morgan Stanley, this month, after allegations of sexual misconduct; he vowed to sue his employer for improper termination. …

Along with the expected uptick in firings for sexual harassment, we could see an increase in wrongful-termination claims by men arguing that their firing was discriminatory against males, in violation of Title VII, even if the decision was driven by the desire to eradicate discrimination against females.

It’s legally dangerous for employers to advertise a “believe the survivor”-type policy in the workplace:

If the campus cases are at all predictive, we can expect to see stories of employees being expelled from their workplace within hours of the accusation; not told the nature of what is alleged, what policy the conduct violates, or who is alleging it; and refused the time or opportunity to respond to allegations, with the employer making little attempt to gather the facts, or deciding with no regard for the weight of the evidence. And, echoing their successful student counterparts over the past several years, the men will claim in court that the pressure to implement a “zero tolerance” policy against harassment led employers to act without sufficient investigation or proper process, motivated by the employees’ male gender.

If they happen to be in the 2nd U.S. Circuit Court of Appeals’ jurisdiction (New York, Connecticut, Vermont), employers already have caselaw to consult, Gersen notes: a 2009 ruling that an “insufficient [workplace] investigation did support an inference of sex discrimination [against a male] prohibited by Title VII,” and last year’s decision against Columbia University for using “fear of negative publicity” to favor a female accuser over a male accused student.

Crusaders for draconian workplace harassment investigations should keep in mind that the public has little clue whether the reformulation of Title IX under the Obama administration has even accomplished its intended purpose, according to another scholar of the law.

Adam Goldstein, a legal fellow at the Foundation for Individual Rights in Education, writes in The Washington Post that “we have little data on how well campus adjudications are handling the problem of sexual harassment and assault, and therefore, no metric to measure changes.”

The co-author of a new journal article on the abuse of the Family Educational Rights and Privacy Act, Goldstein writes:

We don’t know how many hearings are held every year; how many of those hearings find the accused responsible; how many appeals there are; how frequently the hearings are before a panel, as opposed to a single investigator (an individual who questions witnesses and writes a report without a hearing); for panels, how many require unanimous findings; how the definitions of offenses vary from place to place; or how many cases are overturned on appeal.

And we don’t know these numbers for either the pre-2011 process or the post-2011 process [governed by now-rescinded regulatory guidance].

This is largely because colleges disingenuously whip out FERPA whenever they don’t want to release potentially embarrassing information:

One university refused to report a string of sexual assaults to police, because, it argued, that would violate that student-privacy law. Another would not release information on how its athletic staff allegedly mishandled sex offenses. And a third fought to avoid disclosing complaints of sexual assault against a professor.

All of these records describe what would be, if true, criminal conduct — and yet, all are being withheld under a misguided and arguably disingenuous reading of a law intended to protect student privacy.

Read Suk Gersen’s and Goldstein’s analyses.

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