V. POLICY RECOMMENDATIONS
Based on our review and analysis of the University's relevant policies and procedures, our comparison of such policies and procedures to those of peer universities and our consideration of the factual findings of our investigation, we recommend the following steps to enhance the University's sexual harassment compliance program. We emphasize that most of our recommendations are recommendations to be considered by the University with input from its various stakeholders before they are implemented.
As a general matter, and as detailed below, the University should implement clearer and more robust procedures for investigating and responding to claims of sexual harassment against faculty members. The University should also consider whether the human resources function is sufficiently integrated into addressing sexual harassment issues and whether the resources devoted to the human resources function are sufficient. This recommendation and others that follow stem from the fact that there is widespread confusion among members of the University community about the University's reporting and investigative processes with respect to sexual harassment.695Over the course of the Investigation, we were contacted by or learned about two individuals who believe that the University has retaliated against them. We have not investigated them separately, as they are outside of the scope of our investigation, but note one theme, which was confusion over the complaint process. The information we received counsels that the University should look carefully at the handling of complaints and treatment of complainants. The addition of claimant and respondent advisers, as well as the plain language brochure explaining the complaint process, see infra, at Section V.A.1, should help to address these concerns and make what can be a difficult process less so. During the Nearpass investigation, the Curtin investigation, the related appeals and Bixby's complaints, both the claimants and Jaeger expressed confusion over what to expect from the process, which policies applied, and who in the administration to contact.696C. Curtin's Notes from Aug. 16, 2016 Interview with C. Kidd; C. Curtin's Notes from Aug. 22, 2016 Interview with J. Cantlon; C. Curtin's Notes from Aug. 26, 2016 Interview with R. Aslin; C. Curtin's Notes from Aug. 29, 2016 Interview with F. Jaeger; C. Curtin's Notes from Sept. 14-16, 2016 Interview with E. Newport; June 25, 2016 Email from K. Bixby to W. Heinzelman; Aug. 24, 2016 Emails between K. Bixby and W. Heinzelman. There should be no misunderstanding with regard to how to make a complaint and what to expect from the investigative process. These recommendations also are intended to address concerns that there are insufficient protections for claimants and the accused in an investigation.
Specifically, we recommend the following steps.
A. For the President and General Counsel
1. Notice of Investigative Process and Rights
When an investigation is opened, each party should be provided with clear written notice of the investigative process and steps. Although a resource of this type exists as Appendix C to the University's Student Sexual Misconduct Policy, no similar resource exists addressing sexual harassment complaints against faculty. To this end, no later than three months from today, the University should prepare and begin using a plain English "Advice of Rights and Procedures" brochure for claimants or potential claimants, witnesses and the accused to be provided at the outset of any investigation of a sexual harassment claim against a faculty member, or any inquiry about making such a claim. This written tool should include clear information on, among other topics: how and where claims may be made; how any investigation will proceed; sources of support; the obligations of confidentiality, both during and after the investigation is concluded and a decision is rendered; and how, whether and when claimants, witnesses and the accused will be informed about the progress, conclusion and any action taken in response to a claim.
We make this recommendation in light of the confusion over the University's investigative process that was expressed by the parties in the Nearpass Investigation.697See supra, at n. 696. The Complainants allege that complainants, the accused and witnesses are not informed of their rights, their entitlement to confidentiality or how the process will unfold.698EEOC Compl. ¶¶ 113, 135; Fed. Compl. ¶¶ 170, 193. Several universities provide such information in a fact sheet or flow chart to complainants and respondents, including Case Western and Johns Hopkins.699Johns Hopkins University, Harassment and Discrimination Procedures, available at http://oie.jhu.edu/discrimination-and-harassment/harassment-and-discrimination-complaint-procedures/index.html; Case Western Reserve University, Sexual Misconduct Policy, at 15, available at https://students.case.edu/policy/sexual/doc/sexualmisconductpolicy.pdf. For example, at Johns Hopkins, upon receiving a complaint, the university will provide the complainant with a written explanation of his or her rights and options and the resources available to assist the complainant.700Johns Hopkins University, Harassment and Discrimination Procedures. If an investigation is opened, the Title IX Coordinator will notify the complainant and respondent simultaneously in writing of the alleged violation being investigated and will provide the complainant and respondent with a written explanation of their rights and options during the resolution process, including the availability of interim measures and support services.701Id. The Title IX Coordinator also ensures that both the complainant and respondent are updated throughout the investigative process.702Id.
By providing this information at the outset of an investigation in a straightforward, uniform way, the University could help avoid subsequent frustration with the process, as was experienced in this case.
In addition, a protocol and template should be developed for communicating information about the conclusion of an investigation to the claimant, the accused and all witnesses.
2. Advisers for Claimants and Accused
The University should immediately develop a list of University personnel from among those who can serve as advisers to claimants and accused parties in matters involving claims of sexual harassment against faculty members. The list should reflect a diverse pool of trained advisers, including academic deans, faculty members and other officers, similar to the pool of advisers made available to those participating in investigations pursuant to the Student Sexual Misconduct Policy, which is coordinated by the University's Judicial Officer. The University should notify all claimants, potential claimants and faculty of the availability of such advisers, specifying the range and purpose of such service and the confidentiality accorded to the consultations. Then, no later than three months from today, the University should hire two new counsel to be initially assigned to the OOC, one of whom will serve as an adviser to claimants, or potential claimants, on claims of sexual harassment or sexual misconduct involving faculty members, and the other to serve as an adviser to accused parties. If a separate office is established to investigate claims of sexual harassment or sexual misconduct by faculty members, these advisers should be transferred to that office.
This change would align the University with many other universities' policies, including those of Harvard, Columbia, Case Western and Cornell, which allow both parties to have advisers during the investigative process.703See Harvard University, Sexual and Gender-Based Harassment Policy and Procedures for the Faculty of Arts and Sciences, at 16, available at https://www.fas.harvard.edu/files/fas/files/fas_sexual_and_gender-based_harassment_policy_and_procedures-1-13-16.pdf; Case Western Reserve University, Sexual Misconduct Policy, at 22, available at https://students.case.edu/policy/sexual/doc/sexualmisconductpolicy.pdf; Columbia University, Employee Policy and Procedures on Discrimination, Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking, at 18, available at http://eoaa.columbia.edu/files/eoaa/content/EOAAPolicyFebruary2017.final_.pdf; Cornell University, Procedures for Resolution of Reports Against Faculty Under Cornell University Policy 6.4, at 8, available at https://titleix.cornell.edu/procedure/. Similarly, the University of Rochester's Student Sexual Misconduct Policy allows students to have advisers during the investigative process.704University of Rochester, Student Sexual Misconduct Policy, at 8, available at https://www.rochester.edu/sexualmisconduct/assets/pdf/StudentSexualMisconductPolicy.pdf
This change also will provide parties with additional guidance throughout the investigative process-guidance that to some extent was lacking in connection with the investigations that took place in this matter. Although the advisers will not serve as the lawyers for the claimants or the accused, they will be able to knowledgeably advise on matters of policy, procedure, process and other sources of support. Neither of the new counsel should advise or represent the University on claims or litigation involving claims of sexual harassment, sexual discrimination or other kinds of employment discrimination, although they may be assigned other legal duties and/or duties involving sexual harassment training.
3. Training Programs
Within three months, the University should undertake and complete a review of the training that it provides on sexual harassment to faculty, students, staff and trainees, with the objective of providing state-of-the-art, mandatory training to the entire University community on at least an annual basis and when anyone first enters the University community. In order to achieve this objective, greater resources, including funding, will be needed. The number of training sessions almost certainly will need to be increased. In-person training, including peer training for students, would be preferable, but online training could be used if necessary. Training should cover, among other topics, faculty/undergraduate and faculty/graduate student relationships and interactions, none of which is sufficiently addressed in current training programs. Training also should include a clear explanation of the complaint and investigation process. Training initiatives should be considered as part of the evaluation process for department chairs.
As we have noted, many faculty and students alike lacked clarity and certainty regarding what the University's policies actually permitted, prohibited, and required. This uncertainty was particularly acute before 2013: the University did not implement organized, campus-wide sexual harassment training for all employees until 2013.705Nov. 14, 2017 Interview with G. Norris. While the change in 2013 was a step in the right direction, the current training for employees does not deal at all with faculty-student relationships. The significance of this gap in training is underscored by Jaeger's conduct and the University's and the claimants' responses to such conduct. We believe that incorporating this topic into the training will help to prevent similar situations in the future, and by including training initiatives as part of the evaluation process for department chairs, leadership will be more incentivized to give training the attention and funding it needs. Annual training on key policies is increasingly a standard tenet of compliance programs at large institutions, not only in the business world, but also in other sectors. We believe the University should be at the forefront of this trend.
Student sexual harassment training is also now mandatory.706Nov. 15, 2017 Interview with M. Levy; Jan. 3, 2018 Email from M. Levy to Debevoise & Plimpton LLP. Although the students' online training is thorough and effective, we recommend increased peer training, which, in the views of Norris and Levy, among others, is a particularly effective method of delivering such training.707Nov. 14, 2017 Interview with G. Norris.; Nov. 15, 2017 Interview with M. Levy.
4. UR Policy 106
We recommend that within three months from today, the University should amend UR Policy 106 to specify: (a) examples of acts that may constitute sexual harassment; (b) the range of discipline and other remedial action that may be taken when there is a violation of the policy; and (c) the range of discipline and other remedial actions that may be taken by deans and chairs of departments for problematic conduct that does not rise to the level of a violation of the policy, but nevertheless counsels some remedial steps. In addition to these amendments, the University should consider adding to UR Policy 106 a statement encouraging members of the University community who believe that anyone subject to UR Policy 106 has engaged in sexual harassment to report such conduct, similar to the language in the University's Student Sexual Misconduct Policy that encourages reporting.
5. Confidentiality Policy
The OOC should retain outside counsel to advise the President and the General Counsel on developing new procedures regarding confidentiality of investigations of claims of sexual harassment or sexual misconduct against faculty members, with the objective of adopting formal procedures that more carefully and flexibly balance the requirements and needs of confidentiality and the benefits of transparency. Such new procedures should be finalized and implemented within six months of today. The General Counsel should consult with the Commission on Women and Gender Equity in Academia, the Executive Committee of the Faculty Senate, the leadership of the GSA and relevant deans and department chairs before finalizing these procedures. Following the adoption of the new procedures, the General Counsel should publish them on the University's website.
The current policy leaves uncertainty as to what will be kept confidential and in what circumstances. We found that there was confusion among the Complainants, witnesses and Jaeger about whether information they provided in connection with the investigation would remain confidential, whether information they knew about the investigation needed to remain confidential, and whether information collected by the OOC during the investigation would remain confidential.708See discussion supra, II.B.4. Witnesses were not notified when the investigation had concluded unless they followed up actively.709EEOC Compl. ¶ 236; C. Curtin's Notes from Aug. 22, 2016 Interview with J. Cantlon; May 19, 2016 Email from K. Bixby email to C. Nearpass; Sept. 13, 2016 Email from Witness 11 to C. Nearpass. One student expressed the sentiment that in an investigation, "one side has to be confidential about it, and the other side does not."710Nov. 21, 2017 Interview with Witness 3. The student said, "It's a balance of confidentiality and transparency, and it frustrates people that it tends toward confidentiality."711Id. While we appreciate that in this case, lack of communication created confusion and distrust toward the University's administration, we also note the need for confidentiality surrounding an investigation. Nearpass agreed that the OOC's confidentiality expectations should be clearly communicated upfront.712Oct. 30, 2017 Interview with C. Nearpass.
As noted, the OOC recently prepared a one-page information sheet about the UR Policy 106 process and has begun providing that to witnesses. The document states that the "University requires that you keep anything relating to your interview (including any information discussed during the interview and the fact that an investigation is taking place) confidential. Please do not discuss this investigation or the allegations that are being investigated with anyone."713University of Rochester, Policy 106 Investigation: Information for Witnesses (2017). This is a step in the right direction, but further analysis of the range of issues needs to be done in order to achieve an optimal balance between the important interests served by confidentiality and transparency.
6. Publicize Annual Data on Harassment Complaints
The University should release an annual report of the number of complaints filed with the University alleging gender-based discrimination and sexual harassment and how the complaints were resolved.
The annual release of such information would serve to increase transparency and community awareness. Both Cornell and Yale publish reports on complaints of sexual misconduct.714Cornell University, Policy 6.4 Formal Complaints Against Students During the 2014-2015 and 2015-2016 Academic Years, available at https://titleix.cornell.edu/statistics/; Yale University, Report of Complaints of Sexual Misconduct Brought forward from January 1, 2017 through June 30, 2017, available at https://provost.yale.edu/sites/default/files/files/August%202017%20Report.pdf. Cornell provides yearly statistics about the type of complaint, how it was resolved and the gender of the parties.715Cornell University, Policy 6.4 Formal Complaints Against Students During the 2014-2015 and 2015-2016 Academic Years, available at https://titleix.cornell.edu/statistics/. Yale provides a much more detailed, semi-annual report.716Yale University, Report of Complaints of Sexual Misconduct Brought forward from January 1, 2017 through June 30, 2017, available at https://provost.yale.edu/sites/default/files/files/August%202017%20Report.pdf. In addition to statistical data about the complaints, the report includes summaries of the various complaints.717Id.
7. Information Technology Policy
We recommend that the President and General Counsel consult with the Executive Committee of the Faculty Senate and the leadership of the GSA and the Student Body to discuss the implementation of procedures for reviewing emails on the University's servers in appropriate circumstances, and that the President and General Counsel report to the Board of Trustees by April 10, 2018 on the procedures that have been implemented. Although the University, like its peer universities, has the authority to review emails on its servers and has security, investigative and other legitimate reasons to retain the ability to do so, the fact that the OOC reviewed emails relating to Aslin's and Cantlon's complaints about Jaeger has upset and concerned many members of the University community. Such concerns were exacerbated by the sharing of such emails with DeAngelis. To address those concerns and increase transparency regarding such email reviews, we believe that new, more specific criteria governing any such review are warranted. Relatedly, we recommend that UR's IT Policy be amended to specify: (a) that the University respects the privacy of individuals and keeps user files and emails as private as possible; and (b) procedures for the distribution of emails by administrators authorized to access and review user emails.
8. Access to Policies, Procedures and Resources
The University should continue to provide online access to information about all of the foregoing policies, procedures and resources, including UR Policy 106, UR Policy 121 and the UR Intimate Relationships Policy. In addition to ensuring that all policies and training materials are readily available online, the University should provide online information regarding the Title IX coordinator, any newly-created office in this area and the Intercessor. Such information should include actual names and contact information, not merely descriptions of their roles. The foregoing policies and procedures should be streamlined and presented in an intuitive format, with separate sections based on the identity of the accused and the nature of the claim. They should provide narrative examples of conduct that would violate the policy. The revised policies should clearly lay out the full range of potential discipline and other remedial action that may be taken when there is a policy violation, and set forth a range of potential consequences for conduct that does not rise to the level of a policy violation, but is still problematic.
This recommendation addresses the evident need for increased transparency and clarity surrounding the University's reporting and investigative procedures. With respect to the recommendation that the University enumerate potential sanctions, many universities provide a list of various penalties for violating policies, including Washington University in St. Louis and Cornell.718University of Washington in St. Louis, Discrimination and Harassment, available at https://hr.wustl.edu/items/discrimination-harassment-policy/; Case Western Reserve University, Sexual Misconduct Policy, at 23, available at https://students.case.edu/policy/sexual/doc/sexualmisconductpolicy.pdf Improved access to policies, procedures and resources, as well as a more streamlined process, will ensure that, going forward, members of the University community will know exactly where to go to report a concern and what the process will entail should they choose to move forward with a complaint, as well as what to expect in terms of sanctions.
B. For the Board of Trustees, President, Provost, Executive Committee of the Faculty Senate, Leadership of GSA and the Commission on Women and Gender Equity in Academia
1. UR Intimate Relationships Policy
We recommend that the Board of Trustees direct the President and Provost to initiate consideration by the Faculty Senate of amendments to the UR Intimate Relationships Policy so that, in addition to prohibiting faculty members from accepting academic authority over students and post-doctoral fellows with whom they have, or have had, an intimate relationship, regardless of department, it also flatly prohibits all intimate relationships between faculty and students in the same department. In order to give due consideration to such amendments, the President, Provost, and Faculty Senate should seek the recommendation of the Commission on Women and Gender Equity in Academia and the GSA, and then should recommend appropriate action to the Board of Trustees by April 10, 2018. Input also should be solicited from outside experts and other universities that have adopted such policies.
This recommendation is rooted in our investigation's findings with respect to Jaeger's intimate relationships with multiple BCS students.719See supra, at Section II.A.2.b. We found that these relationships contributed, at least in part, to making some female graduate students in BCS uncomfortable; in some cases, these women actively avoided pursuing academic opportunities with Jaeger.720See supra, at Section II.A.1.e. It also seems clear that the fact of such relationships between Jaeger and BCS students was what most bothered at least Aslin, notwithstanding that UR did not have a policy prohibiting them. DeAngelis also believes that romantic relationships between faculty and students have no proper place in BCS or UR.
The University's policies did not prohibit these relationships at the relevant times, but did prohibit sexual harassment. Although some factual circumstances might implicate only one of those two policies, Jaeger's conduct and the Complainants' allegations implicated both policies and thereby highlighted the potential tension between the two policies-and the acute challenges that can arise when intimate relationships between faculty and students are permitted. While some institutions have navigated those challenges without imposing strict prohibitions, we believe that in light of the University's experiences in this matter, a bright-line rule would be beneficial. Although the University has strengthened its policies recently,721See Exhibit 1; University of Rochester, Faculty Handbook (revised Feb. 2007); Faculty Handbook (revised July 2008). we believe that they can and should be further reinforced as described above.722See id.
These amendments, although stringent, would not be out of line with the policies of peer universities. To the contrary, what we recommend is similar to restrictions in other universities' faculty-student relationship policies. Stanford, for example, prohibits sexual or romantic relationships between faculty members and students where the faculty member "has had, or in the future might reasonably be expected to have, academic responsibility over" the student.723Stanford University Administrative Guide, 1.7.2 Consensual Sexual or Romantic Relationships in the Workplace and Educational Setting, at 2, available at https://adminguide.stanford.edu/printpdf/chapter-1/subchapter-7/policy-1-7-2. This includes faculty members and students in the same "department, program or division."724Id. Stanford also requires that the faculty member notify his or her "supervisor, department chair or dean" about any relationship that is prohibited by this policy.725Id. Northwestern also requires that consensual relationships be reported to the department chair.726Northwestern University, Consensual Romantic or Sexual Relationships between Faculty, Staff and Students, at 3, available at http://policies.northwestern.edu/docs/Consensual_Relations_011314.pdf. UR's current policy, on the other hand, does not mandate disclosure but simply states, "Faculty members should err on the side of disclosing a relationship to the Intercessor if there is any doubt about whether they exercise academic authority."727Exhibit 1.
Northwestern's policy explains, "the possibility exists that the faculty member may influence evaluation or academic or career advancement of the student even if the faculty member does not directly supervise the graduate/professional student."728Northwestern University, Consensual Romantic or Sexual Relationships between Faculty, Staff and Students, at 3, available at http://policies.northwestern.edu/docs/Consensual_Relations_011314.pdf. Such requirements would have either prohibited Jaeger from dating female students within BCS or required him to disclose his relationships to the University administration. We believe that prohibiting relationships between faculty and students in the same department will help to prevent problematic faculty-student relationships in the future and would better address the concerns described by Northwestern's policy.
2. Dedicated Office to Investigate Sexual Harassment or Misconduct by Faculty Members
We recommend that the Board of Trustees consider directing the President to establish an office separate from the OOC to handle claims of sexual harassment or sexual misconduct by faculty members and instituting some or all of the procedures provided for investigating and adjudicating claims of sexual harassment or sexual misconduct by students as overseen by the Title IX Coordinator. As part of this consideration, the President and the Executive Committee of the Faculty Senate should consider establishing an appropriately comprised committee to recommend corrective action following the conclusion of every UR Policy 106 investigation of a faculty member for sexual harassment or sexual misconduct. Such a committee would be comprised of representatives from relevant constituencies of the University community, which would mitigate concerns about bias and lend credibility to findings. Decisions that are understood to reflect the perspectives of different populations may be more likely to be accepted as fair and legitimate. The decision-making structures used by the University of Chicago and UR's College of Arts, Sciences & Engineering for claims involving academic dishonesty may be useful resources to review. The President shall report to the Board of Trustees on the results of his consideration of this recommendation by April 10, 2018.
We credit the Complainants' concerns that there is at least a perception of a conflict of interest in having the OOC handle UR Policy 106 claims, although Nearpass told us that she conducts UR Policy 106 investigations in a human resources capacity, not in her capacity as a University lawyer.729EEOC Complaint ¶ 137; Oct. 30, 2017 Interview with C. Nearpass. Nearpass explained that she makes clear during all interviews that she is not acting in an advocacy role or representing the University, and instead is acting as a neutral fact-finder. (Oct. 30, 2017 Interview with C. Nearpass.) We credit that she acted neutrally in that role in this case. Nevertheless, as the Complainants made abundantly clear, there can be an appearance of a conflict when it is the OOC, of which Nearpass is a part, that defends the University in an administrative proceeding or in court on employment matters, including those that may involve a disagreement about the outcome of a Policy 106 investigation. Although we recognize that UR has handled Policy 106 claims made against faculty in this way for many years and that there are resource and expertise reasons for doing so, we nevertheless believe that serious consideration should be given to establishing a separate, dedicated office to handling these critical issues. It is true that if a party disagrees with the outcome of a UR Policy 106 investigation and decides to sue the University in an administrative proceeding or in court, the OOC defends the University.730Oct. 30, 2017 Interview with R. Crummins. We therefore recommend that such investigations be handled by a separate office in order to avoid the perception of a conflict.
Our research indicates that the University is an outlier in permitting claims of sexual harassment to be handled by the OOC. Most other universities have a separate office tasked with handling claims of sexual misconduct. Harvard has created a centralized system whereby the Office for Dispute Resolution is responsible for receiving and investigating complaints of sexual and gender-based harassment and preparing a final report with recommendations for corrective and disciplinary action.731See Harvard University Office for Sexual and Gender-Based Dispute Resolution ("ODR"), available at https://odr.harvard.edu/about-0. Similarly, Brown's Director of Diversity Inclusion similarly reviews all incoming complaints.732See Brown University Office of Institutional Equity and Diversity, Incident Reporting, available at https://www.brown.edu/about/administration/human-resources/sites/human-resources/files/sexualharassment-workplaceharassment-discrimination-complaint-form-revised-july2017_0.pdf.
C. For the President and Board of Trustees
1. Cabinet-Level Officer to Oversee Implementation
In recognition of the importance of the issues addressed in this Report and the challenges of taking into account the interests of all relevant groups and stakeholders, the President should appoint a senior, cabinet-level official to oversee the implementation of these recommendations, including compliance with any deadlines, as well as other initiatives the President may develop to combat sexual harassment, misconduct and discrimination, as well as retaliation. This person should be someone with relevant expertise and credibility with all of the University's constituencies.
2. Trustee or Special Committee to Oversee Implementation
Similarly, the Board of Trustees should appoint a Trustee or Special Committee of the Trustees to oversee the implementation of these recommendations, including compliance with any deadlines, as well as other initiatives as may be pursued by the University to combat sexual harassment, misconduct, discrimination and retaliation throughout the University.