Does the law require a faculty member to report knowledge of a sexual assault on campus? Not necessarily, but policy might. While Title VII (employee-on-employee) complaints have led to widespread reporting mandates on college campuses, Title IX only requires reporting from “responsible employees,” those whose role gives them authority to address and remedy gender-based discrimination and harassment. Unlike Title VII, OCR has with Title IX tried to meaningfully give victims control over reporting. This empowerment will be impeded by a reporting mandate on all employees framed only with Title VII in mind.
This distinction is often where campus attorneys and advocates collide, as the same issues that raise the question of faculty reporting (academic freedom is not an issue here, though faculty members will insist it is), raise the issues of reporting by RAs, campus advocates, and anyone else who is not clearly a “responsible employee.” Advocates want broad rights to preserve privacy while campus attorneys want reporting by every employee, to ensure that no complaint slips through the cracks. Both these goals have merit, but I don’t agree with many of my attorney colleagues on this. I think their argument that failing to act on 3rd party notice (to an employee who has no remedial authority to address gender discrimination) of an incident the victim doesn’t necessarily want action on is somehow a realistic exposure to liability under Title IX. It’s not, in my view, but it is another area where I continue to find the familiarity of employment lawyers with Title VII does disservice to Title IX.
But, let’s appreciate the problem campus legal counsel face in giving good advice on this question. Reporting of sexual assault by employees is required by three different federal laws, and some state statutes. Each of these laws creates its own reporting requirement, irrespective of the standards used by the other laws. So, should we be trying to train employees accurately on three inconsistent reporting schemes (Title VII, Title IX and Clery) and state law? That is a practical and intellectual impossibility. So, I have come to favor the following approach. All employees should, by policy, be mandated reporters of what they know, within 24 hours of coming to know it. But, only some employees have to share ALL that they know (they are “responsible employees” under Title IX, and we will train accordingly). Other employees can satisfy their duty to report but may withhold personally identifiable information (at least initially), such that reporting can be accomplished (thus satisfying the Clery Act and Title IX) without starting the domino effect of actual or constructive notice without the consent of the alleged victim. Which employees have to report what is detailed in the link, below. Clarity on reporting duties requires training, but the DCL made the need for enhancing our training programs very clear already. The use of a reporting form available to students and employees online, with optional and mandated fields clearly noted, can effectively guide employees on reporting expectations, options and requirements, while also helping public safety to accurately categorize and classify offense statistics under the Clery Act.
I wrote recently about this question in detail for ATIXA, here: http://www.atixa.org/documents/DCL.pdf
Brett A. Sokolow, Esq.