Title VII of the Civil Rights Act of 1964 forbids employers from discriminating based on race, color, religion, sex, or national origin, and overlaps with Title IX (sex discrimination) and Title VI (race, color, religion or national origin).
Forms of discrimination include creating a hostile work environment, disparate treatment, disparate impact, mixed motive discrimination, and retaliation.
Create a Paper Trail and Seek Independent Counsel
When you’re accused of discriminating against another employee—who could be a colleague or a graduate research assistant or university staff—the Equal Employment Opportunity Commission (EEOC) may decide to file administrative charges against your employer and start an investigation. At this point, the school, your employer, will be alerted to the investigation and you are strictly speaking merely a witness, even though you are being accused of the discriminatory behavior.
The complainant must be an employee, however, and not merely a student.
If you’re aware of a Title VII investigation into your actions, start recording everything: notes about your previous experiences with the employee and with your department chair and any officers of the university that you work with, including any relevant incidents that may have led to the claim of discrimination.
It’s important to take the allegations seriously and start creating a paper trail. Write down as much detail as you can remember, including times, dates and places. Showing a pattern of false claims or other mitigating circumstances can greatly help your case.
Many faculty turn for advice to the university’s counsel, who may be one of the first to contact you. Remember that the university’s attorney does not represent you. He or she is there to protect the legal liability and reputation of the school, not you. Your interests are not necessarily aligned.
If you’re accused of harassment in any form, you will need your own counsel to defend you and defend your job. Your conversations and materials you begin to generate to defend yourself will also be privileged, and you can protect this information from the university and from the complainant, especially in the event that there is a lawsuit.
Title IX and Title VII
As a faculty member, your university may also investigate you under its Title IX office for sexual harassment or sexual misconduct if either a student or fellow university employee initiates a complaint.
For example, many universities have policies forbidding sexual relationships with students, regardless of whether or not they are adults or legally consent. Many students, especially graduate students, will be students and employees at the same time. It is possible for cases to be brought both under Title IX and Title VII—although in some jurisdictions the courts have held that Title VII preempts Title IX for employee claims.
There can even be competing claims. There are many cases in which a faculty member is investigated on campus by his or her administration—perhaps for saying something “inappropriate” that violates written or unwritten campus speech codes or for alleged sexual harassment. The school initiates a campus court proceeding against the professor under its Title IX rules, potentially leading to termination—but the professor, as an employee, turns to the EEOC with a Title VII claim, alleging that the campus courts are biased or that the investigation is discriminatory.
Likewise, if you are the victim of harassment, you can choose to bring a complaint under campus Title IX rules or through the EEOC and similar state agencies under Title VII and state anti-discrimination laws.
You will have to act relatively quickly, however. If you wish to file a Title VII claim against the university, you have l80 days to file from the last act of harassment or discrimination—or sometimes 300 days, depending on your employer and state laws.
The EEOC Process
Once a Title VII charge has been filed, the EEOC is supposed to investigate the claim within180 days. It almost never does. In 2015, as assessment showed that the average time it takes to investigate and resolve a charge was about 10 months.
The EEOC does not judge guilt or innocence like a criminal court. It investigates to determine whether there is “reasonable cause to believe discrimination occurred.” The EEOC may offer to mediate disputes between employees and employers. But if the EEOC finds “reasonable cause,” the agency will issue the complainant a Right to Sue Notice.
Complainants can also petition for a right to sue notice prior to the EEOC’s completion of its investigation. That is, the complainant may not have to wait.
With this in hand, they then have 90 days to file a claim in federal district court. If you do not sue within 90 days, the complainant will very likely have to give up your claim. So be very careful with deadlines.
Hire an Attorney
Whether you harassment is threatening your faculty position or whether you being accused of sexual misconduct as a professor, this is almost always a career threatening event. Jobs are scarce in academia and very specialized, and the protections of tenure are being weakened by the increased power of administrators who assert authority over through the campus courts. If you are an adjunct faculty member, you may also find that your contract is not renewed.
With your reputation and livelihood at stake, hiring an experienced higher education attorney will help you build your case and defend your job. Universities and colleges are not the same as private corporations, and your attorney needs to understand the academic environment.
A good attorney will help you build your claims against the university from the moment an investigation begins. They help you develop your evidence, identify witnesses, gather documents; and they protect you in interviews.
Attorneys can help with mediation or investigation efforts with your school, particularly when you seek an out-of-court solution or settlements.
In the event that you are found to have discriminated against a colleague, having an attorney will help you address the potential consequences, including termination, or other sanctions.