Why has Drew gone from a victim-driven policy to a policy requiring that investigations be conducted into any allegation of discrimination or sexual harassment?

In recent years the legal requirements imposed on employers and institutions of higher education have changed dramatically.  New and evolving Title IX mandates imposed by the United States Department of Education (DOE) in April, 2011 as part of its national campaign against sexual harassment have driven many of these changes.  Others have been imposed by developing state statutory and decisional law. Drew’s new Human Rights Policy incorporates many provisions of the old Sexual Harassment Policy; however, it also makes some significant modifications.  Among these changes is the need for the University to investigate allegations of discrimination and sexual harassment.  This means that the University is obliged to conduct prompt and impartial investigations when it, or its employees, learn of incidents of sexual harassment or discrimination.

What do I do if a member of the Drew University community approaches me to report a violation of the University’s Human Rights Policy?

Initial Response

You should encourage the complainant to contact the Human Rights Committee, particularly members of the Investigations Group, (more info can be found here: Support & Resources) as soon as possible and provide him/her with the appropriate contact information for the Investigations Group.  Additionally, if you learn about an incident, you should contact the Investigations Group on your own, even if the complainant does not come forward.  Contact information can be found on the Contacts and Other Resources page at the end of the Human Rights Policy and on the back page of the Human Rights summaries.

In your discussion, you need to stress five points:

  • the University’s obligation to investigate;
  • that efforts will be made to maintain privacy;
  • the University’s strict anti-retaliation policy;
  • that the University is committed to redressing the effects of discrimination or harassment and will take steps to prevent its re-occurrence, including immediate steps to protect the health and safety of anyone reporting an incident; and
  • the person complaining has an unqualified right to contact law enforcement, and if requested, will be provided assistance in doing so.

Required Law Enforcement Notifications

When sexual misconduct or other serious claims of sexual harassment, including sexual violence are alleged, the person bringing a claim of sexual misconduct must be told about the availability of law enforcement resources and be provided assistance in contacting any law enforcement personnel or authority, if s/he requests.  Those resources include the Morris County Prosecutor’s Office’s Sexual Assault Response Team and the Madison Police Department.  Law enforcement contact information, including phone numbers, can be found on the contacts page.

The University’s Obligation to Investigate Reports of Discrimination

At the beginning of the conversation, it is important that you inform the person reporting any violation of the University’s Human Rights Policy of your obligation to disclose reports of violations to the Investigations Group so that an investigation can be conducted.  Under federal and/or state law, the University is required to investigate allegations of discrimination or harassment, including sexual harassment or misconduct.

Privacy, Not Confidentiality

You should tell the person that all proceedings, documents, activities and meetings related to a specific investigation and/or complaint are considered private.  This practice will be explained in more detail by a member of the Investigations Group, when s/he contacts the person reporting the harassment or discrimination.  The University will attempt to maintain privacy to the extent possible, but cannot commit to privacy on an across the board basis.  The University’s obligation to conduct an investigation into virtually all reports of discrimination may well require it to disclose some information about an incident in the course of investigating a report.  The University will, of course, use its best efforts not to disseminate information about an investigation or complaint beyond those who have a need to know.  Consistent with its obligations under state and federal law, the University is required to take reasonable investigative steps, even in the face of a request for privacy or a request not to pursue an investigation.

Parties and those interviewed in connection with a claim of discrimination or harassment will be asked to agree not to disclose information about the report, investigation, mediation, or adjudication in order to permit those processes to proceed without interference, claim of undue influence, or retaliation.  Persons conducting an investigation or those hearing a complaint are required to respect the privacy of anyone involved in an incident.

Retaliation

Drew University’s Human Rights Policy seeks to encourage students, staff, and faculty to express freely and responsibly their opinions and feelings about any complaint of discrimination or harassment. Any act of reprisal, interference, restraint, penalty, discrimination, coercion, or harassment — overtly or covertly – against a person who uses this policy and its procedures not only undermines the University’s atmosphere of trust and collegiality, but threatens its ability to conduct investigations and to address violations. Retaliation includes any threats or other form of intimidation directed at a complainant, a witness, or a supporter at any point before, during or after an investigation, mediation and/or hearing. Accordingly, such acts violate this Policy and will be subject to appropriate and prompt disciplinary action.

What happens during the Investigative Process?

When the Investigations Group learns of an incident of discrimination or harassment, an assigned staff member or members will interview the individual who believes s/he has been discriminated against or harassed and take the following steps:

  • give the person information about the investigative process;
  • provide a privacy advisement;
  • explain the retaliation policy;
  • for students, explain that student safety is the University’s primary concern and that use of alcohol or drugs can never make the target of harassment or sexual misconduct at fault;
  • explain the University’s obligation to take all reasonable steps to investigate;
  • obtain consent for an investigation, if possible;
  • take steps to identify sources of tangible  information;
  • listen to the account of what occurred and take a complaint and/or statement;

The Investigations Group member(s) will:

  • keep the Title IX Coordinator/AA/EEO Officer advised as to the status of an investigation.

On an ongoing basis, Investigations Group member(s) will also:

  • evaluate and discuss with the complainant whether there is a threat to a party’s safety or welfare, a need for a no-contact order, or other interim measure or emergency accommodation; or
  • a need for timely warning to the campus community; and
  • When there is cause for concern, contact the University’s Director of Public Safety, and/or the Dean of Campus Life and Student Affairs, and/or Human Resources Director, and/or the appropriate academic dean.

During the investigation, the Investigations Group will:

  • interview the person raising a concern.
  • interview the person complained against.
  • interview witnesses.
  • identify sources of tangible information, e-mails, photos, texts, surveillance video etc.
  • prepare a summary report of the investigation, along with an assessment of whether the complaint is substantiated and the whether the offense should be graded as more severe or less severe.
  • that report then goes to the Human Rights Committee co-chairs who will determine by talking with the parties if mediation should be pursued.  Note: mediation is not appropriate in a matter involving sexual misconduct.
  • If mediation is not pursued, the summary report will be used in subsequent proceedings that will determine whether there was a violation of the Human Rights policy and, if so, the appropriate sanction.