A lawsuit filed Monday, May 8, 2017 in federal court in Virginia against Appalachian School of Law asserts a set of allegations that are depressing, alarming, and if true, demonstrate classic mistakes employers make when faced with employee complaints of workplace harassment. A visiting law professor asserts that she was targeted and harassed by a male law student who also targeted other faculty and students. The student was disruptive and aggressive towards her in her class, talked over her and was disrespectful, badmouth her to other students, and often mentioned his possession of firearms.
The allegations are still worse. The offending student, who is referred to as “John Doe” in the lawsuit to protect his educational privacy, and to prevent further aggravating him lest he take out more aggression on the plaintiff, allegedly had other, serious problems. For example, Doe was alleged to have raped a law school female staff member and groped and sexually battered female law students. The plaintiff alleges that she complained numerous times to the administration during the 2015-2016 year, but that no action was taken until April, when the school posted security outside the classroom but took no further action to investigate her complaints. A classmate committed suicide in April whom the plaintiff asserts Doe had been bullying. When the school did finally initiate an investigation, the plaintiff asserts that it was completely mismanaged. The internal investigation, the hearing, and the resolution were all conducted under Title IX, a federal law that protects students and school employees from discrimination, harassment, and retaliation. The plaintiff raised other claims of gender discrimination and retaliation; asserting rights regarding harassment or discrimination should not result in any form of retribution.
I’ve counseled employers how to avoid workplace harassment for almost twenty years, so cases like these, Fox News, Bill O’Reilly, and Roger Ailes are astonishing. Too many workplaces are still not good places to work, but the rules have long been clear. Educational institutions have their own set of rules under Title IX, whereas private employers are governed by Title VII of the Civil Rights Act of 1964 and state law. While these laws do have complexities that raise the risks of mishandling human resources matters, handling complaints of sex harassment does have some common sense. Consider the potential difficulty Appalachian may have explaining that it posted a security guard outside the professor’s classroom yet did not investigate her complaints.
- Hire able counsel to investigate the complaint. Consultants are not always well equipped to plan a strategy that will hold up in later litigation, and conversations with them are not protected by the attorney client privilege.
- Act quickly to protect your workforce from workplace harassment.
- Do not retaliate against the victim: in rare cases, retaliation can be in the eye of the beholder.
- Use caution in post-complaint decisions during the investigation pending outcomes, including decisions like leave, paid and unpaid, changes in work assignments, and other choices that could seem benign.
- Complaints of unlawful treatment in the workplace are dangerous, because what you do and fail to do will be nitpicked by a lawyer in the future. The law permits plaintiffs to seek reinstatement, backpay, and compensatory and punitive damages. Better to follow the basics and protect your employees with a thorough investigation than expose your business to “bet the company” litigation.