Nov. 2016 Advocate: The “responsible employee” and Title IX

TITLE IX RULES

The “responsible employee” and Title IX: What is a faculty member really responsible for?

by Robert Bezemek, AFT 1493 Attorney

Recently several community college districts have attempted to subtly increase the workload of faculty by adding a new duty – indicating that academic employees should serve as a “responsible employee” under Title IX of a federal law, the Higher Education Amendments of 1972.  Just what that means, and its implications, is important.

The current notion of a “Title IX responsible employee”stems from events in 2013-2014 around the issue of sexual violence on college campuses. It comes from the 2013 reauthorization of the Violence Against Women Act, including the Campus Sexual Violence Elimination Act, and actions by the Office of Civil Rights of the U.S. Department of Education, part of OCR’s initiative to curtail or remedy sexual harassment, misconduct or violence towards students. OCR came up with the term “responsible employee” to delineate academic employees who would receive complaints from students, and then report those complaints to the college. (The term is also found, without its current weight, in OCR’s January 2001 Revised Sexual Harassment Guidance).

Faculty were not specifically designated as “Title IX responsible employees”

Faculty can become “responsible” for “reporting,” only if they are expressly delegated those responsibilities.  Since being given these additional responsibilities is a change in faculty working conditions, any effort to impose this “Title IX responsible employee” requirement must be negotiated.

When OCR created this new requirement of the “responsible employee,” it did not specify exactly which faculty should be designated as a “Title IX responsible employee.” Faculty can become “responsible” for “reporting,” only if they fit within one of three categories – two of these, discussed below, rarely involve faculty. The one which might is this: faculty who have been expressly delegated those responsibilities. Since being given these additional responsibilities is a significant change in faculty working conditions, any effort to impose this “Title IX responsible employee” requirement must be negotiated.

OCR derives its authority to issue such “rules” governing complaints from the Department of Education’s authority over colleges which receive federal funds, either directly or indirectly through student tuition. But there is a huge gulf between what OCR has dictated, and what colleges are doing.  You see, no rule or law decrees that all faculty should be “responsible employees,” though many colleges have felt differently. Title IX, while increasingly referenced by colleges, is not always easy to understand, because it is mostly enforced by administrative actions of the Department of Education.  Title IX actually provides only this general command:

“… no person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subject to discrimination under any educational program activity receiving Federal financial assistance.” Title IX encompasses 10 key areas with respect to women’s educational opportunities including access to higher education, athletics, and sexual harassment.

This simple, general rule affords the Department of Education, and hence OCR, considerable authority.

If an employee has been delegated the duty of serving as a responsible employee, then the employee must be alert to whether any student has complained about sexual harassment,misconduct or violence.  This is because OCR expects that the “responsible employee”, upon realizing that the student is about to confide information about sexual violence, misconduct or discrimination, must tell the student to “STOP,” and then must promptly warn the student, before the student has told their story, that their “complaint” cannot be kept confidential by the “responsible employee,” and that the instructor will be reporting their complaint to the District or college’s Title IX “officer” regardless of whether the student wants it reported.  How’s that for stopping a conversation?

Equally of concern is that if an employee receives a sex-based complaint from a student, and chooses not to report, the faculty member would potentially be subject to disciplinary action by the District, for violating a college rule.  This is another reason why being so designated cannot be taken lightly.  And would a college have an incentive to discipline such faculty? Yes. This is because OCR also has concluded that a college receives putative notice of such misconduct whenever a “responsible employee” knew, or in the exercise of “reasonable care” should have known, that harassment/violence/misconduct occurred.  If a faculty employee chose not to report, or did not report because they concluded there had been no sexual misconduct, it’s entirely possible that the college has reason to put all the blame on the faculty employee who kept the matter quiet.

Why should faculty have an unconditional duty of reporting?

Anyone who thinks it’s no big deal to make all college employees into “responsible employees” should by now recognize the opposing viewpoint.  But if the potential for disciplinary action weren’t enough, it is not that easy to decide whether someone is about to, or has actually articulated, a complaint of sexual violence, misconduct or discrimination. This is a judgment that does not  necessarily come easily for trained investigators.  So why should faculty have this unconditional duty of reporting? After all, faculty generally have no authority to remedy such complaints; faculty cannot ordinarily undertake the investigation to decide if the complaint is valid. As for student expectations, a college can notify students in the college catalog or class schedule that certain designated individuals, not academic employees generally, are responsible for reporting sexual misconduct, etc. to college officials.

Designation of faculty as “responsible employees” can harm student-faculty relationship

By now it should be apparent that the designation of all faculty as “responsible employees” would seriously change, if not harm, the relationship between students, particularly adult students, and their instructors or other academicians.Which is why this topic has inspired considerable debate at colleges across the U.S.

3 conditions define a “responsible employee”

When OCR created this new requirement of the “responsible employee,” the federal agency was not particularly clear on who constitutes the “Title IX responsible employee.” OCR defined a “responsible employee” as satisfying any of three conditions:

1.    An employee who has the authority to take action to redress incidents of sexual harassment/misconduct.
2.    An employee who has been given the duty of reporting incidents of sexual harassment/misconduct or any other misconduct by students to the Title IX coordinator or other appropriate designee.
3.     An employee whom a student reasonably believes has this authority or duty.  (See OCR “Questions and Answers on Title IX and Sexual Violence,”issued April 29, 2014.)

As is evident, items 1 and 3 would not ordinarily include non-supervisory academic employees.  Thus, faculty ordinarily can become “responsible” for “reporting” only if they are affirmatively delegated such responsibilities.

Some employees must be designated as “responsible employees” but this process must be negotiated

There is no doubt that colleges are obliged to treat student reports of sexual misconduct, discrimination or violence seriously. Owing to several notorious examples of sexual violence, harassment or misconduct at several universities around the country, and a growing recognition that this problem has not been fully addressed, the DOE, acting through its Office of Civil Rights, decreed that every college and university accepting federal funds must adopt a policy on sexual violence, and that this policy required some college employees to be considered “responsible employees.”

OCR decided that colleges have to do something to make it simpler for victims of sexual violence to report and receive remedies for sexual misconduct.  Thus, OCR concluded that colleges and universities are required to redress instances of sexual violence, harassment or misconduct, whenever it knows, or should have known, that sexual harassment, violence or misconduct occurred.

To address these issues, faculty need to be vigilant, and insist that any college effort to impose this “Title IX responsible employee” requirement will be negotiated.