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Employment Law Blog: Students, Employees and Assaults: Parallels Between Academic and Employer Requirements - March 5, 2014

Is it simply “human nature”? University of Iowa President Sally Mason is under scrutiny for her comments regarding a recent sexual assault reported to the university. Mason’s remarks were interpreted by portions of the student body as a laissez-faire stance regarding sexual assault. Regardless of Mason’s intention, it is this permissive perception that the federal Campus SaVE Act seeks to combat. The Act seeks transparency, clarity, and accountability when reports of sexual misconduct are received on college campuses. However, while the Act demands accountability, it does not force a student/alleged victim to press charges or pursue any formal remedy. It is also not akin to a mandatory reporting law.

The Act allows a victim to choose whether to proceed. The Act requires “policies which encourage accurate and prompt reporting of all crimes to the campus police and appropriate law enforcement agencies, when the victim of such crime elects or is unable to make such a report.” The University may “encourage” the victim through the required policies. As part of the policy regarding prevention and procedures, specific procedures must in writing about preserving evidence, to whom to make reports, and the victim’s options, namely (1) notifying proper law enforcement, including campus and local police; (2) be assisted by campus police in notifying law enforcement if the victim so chooses; and (3) to “decline to notify such authorities.”   

A common example is that of an RA dealing with a student’s request for confidential assistance or guidance for an incident that occurred on or off campus. The RA should refer to the written policy delineating the victim’s options (including an option to decline to notify) and encouraging the student accordingly. The RA should provide a copy of the policy to the victim to ensure the victim’s options are properly and thoroughly communicated—this is particularly important in a case where the victim declines to go forward. In these situations, other requirements of the Act are critical, including the availability of counseling/victim assistance and changes/accommodations in academic schedules, living arrangements, transportation, and working situations, if such accommodations are reasonably available. These accommodations are to be provided regardless of whether the victim chooses to report to campus police or local law enforcement.

What, if anything, can employers learn from not just the pushback to Mason’s comments, but the structure of the Act itself? Some of the Act parallels the EEOC positions and what is normally considered best practices. Remember, internal harassment and violence policies need to be well drafted, widely distributed, and provide multiple methods of reporting as well as alternative reporting points. If you are only allowed to report in writing to one person chance are that will have a chilling effect on the reporting process as well as generate EEOC scrutiny.

If we learn anything from the public outcry it’s that you have to take the issue seriously. You can’t substitute your viewpoint of harassment or violence for that of the employee reporting the issue. Further, you have to take every complaint seriously.  In other words if a 6 foot 5 male employee reports harassment by a 5 foot 1 female – give it the attention it requires. Don’t make assumptions about who could or could not be a violator.

One area where employment practice does not parallel the Act is in the idea that the victim can report, but choose not to proceed. As an employer, there is no “I want to tell you this but you can’t tell anyone else” moment. Once you know – you have to address the issue and take “prompt remedial action,” even if the report comes from a student-employee.