College Employee Issues

Like any workplace, universities and colleges come with both benefits and drawbacks. As a professional or faculty member in academia, however, you face specific issues as a result of working for an educational institution. As a university or college employee, you're subject to Title IX regulations, for example. You can benefit from the protections Title IX offers, but you may also be accused of violations of Title IX policies and face the accompanying sanctions.

Some common issues that higher education employees might deal with include:

  • Harassment
  • Sexual harassment
  • Quid Pro Quo Harassment
  • Hostile work environment
  • Research misconduct
  • Academic misconduct
  • Responsible vs. confidential employee

An experienced attorney-advisor can help you deal with these problems and protect your rights in a disagreement with your university.

Harassment

Workplace harassment has been an important issue for several decades now, and is a major protection of Title VII of the Civil Rights Act of 1964. According to the U.S. Equal Employment Opportunity Commission (EEOC), harassment is unwelcome conduct based on an individual's protected status and becomes unlawful under two circumstances:

  1. When enduring the offensive conduct becomes a condition of continued employment
  2. When the conduct is severe or pervasive enough to create a hostile work environment

It's also illegal to harass someone in retaliation for filing a discrimination charge or opposing employment practices that discriminate against individuals.

What is a protected status according to the EEOC?

  • Race
  • Color
  • Sex
  • Pregnancy
  • National origin
  • Age (40 or older)
  • Disability
  • Genetic information

What is and what is not harassment

For behavior to be harassment, it must create an environment that is intimidating, hostile, or offensive to reasonable people. Isolated incidents or annoyances don't count as harassment. Some examples of harassment might include:

  • Offensive jokes
  • Slurs
  • Epithets or name-calling
  • Physical assaults or threats
  • Intimidation
  • Ridicule or mockery
  • Insults or put-downs
  • Offensive objects or pictures

It's important to note that the victim of workplace harassment doesn't necessarily have to be the target of the harassment. It could be someone witnessing the harassment who feels affected by the offensive conduct.

Sexual Harassment

Sexual harassment is a form of harassment that is, under Title IX, prohibited at educational institutions. Title IX rules about sexual harassment extend to everyone affiliated with the institution, not students exclusively. According to the U.S. Department of Education, sex-based harassment includes sexual harassment, sexual violence, and gender-based harassment.

Sex-based harassment prohibited by Title IX

  • Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment may also interfere with an individual's right to an education or to participate in a university program or activity. Examples are stalking, obscene phone calls or other communication, sexually suggestive jokes, inappropriate touching, or intimidation.
  • Sexual violence is a physical act or acts perpetrated against a person's will or without that person's consent. Examples would be rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.
  • Gender-based discrimination is harassing conduct based on a student's failure to conform to sex stereotypes. Examples would include gender-based bullying, derogatory remarks, or gender discrimination in athletics, the office, or the classroom.

Quid Pro Quo Sexual Harassment

Quid Pro Quo sexual harassment is also against Title IX policies. This type of harassment is when one party conditions a benefit or service on the acceptance or refusal of engaging in sexual activity. An example would be if a faculty member gives a student a poor grade for not agreeing to go on a date with them, or if an athletic coach benches a student-athlete because they rejected the coach's sexual advances.

When is an employer liable for sexual harassment?

For university employees accused of harassment, it's possible your superior or the university itself could be liable for the harassment if they don't try to correct or prevent the behavior. Colleges don't want to be responsible for harassment, so your institution will more than likely intervene in your case to demonstrate that it took reasonable action to correct or prevent the harassing behavior.

What's at stake if you're accused of sexual harassment

If you're accused of a Title IX violation as a college or university employee, your institution will likely handle your case under both Title IX and employment procedures. Faculty, staff, and other employees are often held to a higher standard than students when it comes to Title IX and sexual harassment, so the university may mete out stricter punishments.

Sanctions can vary between institutions and may include:

  • Counseling or training
  • Written warning
  • Financial sanction
  • Unpaid leave of absence
  • Suspension
  • Demotion
  • Termination

Can college employees be accused of sexual harassment off-campus?
In most cases, university faculty and staff are subject to either Title IX or their school's sexual misconduct policy when they're not on the university campus. Your affiliation with the university is enough to consider serious sanctions against you. If your institution believes that the allegation could negatively impact the institution in any capacity, then it will take action.

Do Title IX and sexual misconduct policies apply to faculty when they're not in the context of their job?You may still be liable for a Title IX violation for an act committed outside the scope of your employment. The purpose of Title IX is preventing sexual harassment at an educational institution, so if you're a faculty or staff member accused by a student, the school may still pursue the complaint even if it occurred off-campus. For example, a university staff member could allegedly perpetrate an act that would be a sexual misconduct violation at an out-of-town convention or athletic event.

Colleges and universities may not always inform you if you're the subject of a Title IX or sexual misconduct complaint right away. An institution might let you know as soon as possible, but they might also fail to tell you. If you're dealing with a harassment charge against you as a college employee, then you must take the matter seriously.

Everything you've worked toward in your academic or professional career could evaporate almost instantly. An attorney-advisor experienced with Title IX and sexual misconduct cases at colleges and universities can help you defend your case.

Hostile Work Environment

Creating a hostile work environment is one facet of harassment. The claim that you've created a hostile work environment at your college or university could stem from an alleged failure to report sexual misconduct or from specific alleged discriminatory harassment.

In order to be accused of creating a hostile work environment and, therefore, harassment, your behavior would have to meet the criteria for a hostile work environment. One or two discriminatory remarks from a supervisor wouldn't be a hostile work environment if they were isolated incidents, for example.

Who can create a hostile work environment?

Anyone employed by the university can create a hostile work environment for another individual, including (but not limited to):

  • Professors
  • Coworkers
  • Administrative assistants
  • Department chairs
  • Provosts
  • Supervisors
  • Maintenance personnel
  • Campus police/security officers
  • Foodservice workers
  • Administrators
  • Support staff
  • Point of sale employees
  • Motor pool employees

What counts as a hostile work environment?

Individual behavior can create a hostile work environment if their conduct renders the workplace offensive or intimidating. The conduct must target a person's protected status (see above), and it must be objectively “severe, persistent, and pervasive” enough that a “reasonable person” would find the work environment hostile to meet the definition.

What is severe, persistent, and pervasive behavior that would create a hostile work environment? To determine this kind of behavior, ask the following questions:

  • What was the nature and severity of the conduct?
  • How much did this conduct interfere with someone's educational or work performance?
  • What is the relationship between the individuals involved (coworkers, supervisor-employee, etc.)
  • Was the conduct humiliating?
  • What were the frequency, type, and duration of the conduct?
  • Was the conduct physically threatening?
  • Did the conduct affect the person's emotional, mental, or psychological well-being?

Typically, the behavior must meet these above criteria to create a hostile work environment.

Examples of behavior that creates a hostile work environment at universities:

  • Sabotaging someone's work or tenure process
  • Telling inappropriate jokes that involve protected statuses
  • Discussing sexual activities
  • Sexually suggestive pictures
  • Rude or demeaning gestures
  • Unnecessary touching
  • Hostile physical behavior

Workplace harassment is a serious matter, especially on college campuses. A colleague could easily misunderstand a joke or remark that you thought was innocent. If you're accused of creating a hostile work environment, and you feel the accusation is false, there are options.

What should you do if you're accused of creating a hostile work environment?
The repercussions of workplace harassment at universities and colleges are severe. If your case involves sexual harassment, it could proceed through both the Title IX process as well as the school's employment or staff conduct policies. An accusation of creating a hostile work environment can not only damage your reputation short-term, but it can also throw off your career in academia. Your financial well-being could be at stake as well.

If you're accused of workplace harassment, remember that you have rights. Try to avoid confronting the person who accused you and remain calm and professional in your working environment. Also, know that the burden of proof for workplace harassment claims rests with the accuser.

An attorney-advisor experienced with college employment and defense issues can help you defend yourself from a hostile work environment accusation. A legal expert will be able to look at the relevant institutional policies and help you understand your rights throughout the process.

Research Misconduct

Most faculty members at colleges and universities are engaged in research projects. Although research misconduct policies may center on graduate students, both professors and graduate students must follow rules of conduct when it comes to conducting research. If you're conducting research under the auspices of a university and you don't follow the institution's research code of conduct, you may face an allegation of research misconduct.

What is research misconduct?

Research misconduct is failing to use integrity and honest methods in research. The definition at most universities includes fabrication, falsification, and plagiarism, or FFP. Fabrication is making up sources or data, falsification is misrepresenting research data by tampering with research materials or leaving data out, and plagiarism is taking credit for work that's not your own.

Some colleges and universities have an FFP-only research misconduct policy, while others expand beyond this basic definition. It's essential that you know what your institution's rules are before you agree to begin a research project.

When it comes to research at institutions of higher education, some actions may be considered inappropriate or against norms, but may not involve a formal accusation of research misconduct.

Actions that are NOT research misconduct:

  • Responsible faculty members not supervising each other's or graduate students' work properly
  • Listing an author on a paper or project when that person didn't contribute in a relevant way to the research
  • Keeping inadequate research records
  • Blocking peers from having access to unique data or research materials
  • Not giving appropriate credit to people who contributed significantly to the research

What happens if you're accused of research misconduct?

Colleges and universities may handle their research misconduct cases through academic proceedings that involve an investigation and a hearing. When federal funds are involved, those accused of research misconduct must also go through an investigation process with the Office of Research Integrity (ORI), part of the U.S. Department of Health and Human Services.

The consequences of research misconduct

An accusation and subsequent determination of research misconduct can sink your entire academic career. You could lose funding for your research or face termination from your position at your university. You could also suffer severe reputational damage.

Knowing the difference between a violation of the research misconduct policy and behavior that's simply inappropriate is vital, as an accusation lodged against you may be false.

If you're accused of research misconduct, your first instinct might be to defend yourself and “set the record straight.” However, until you have all the facts of your case, as well as know the potential consequences, you should not make any statements in an attempt to defend yourself. Instead, you should get as much information as you can about the accusation and the process for handling it. Then, a qualified academic defense attorney can help you with your case.

An attorney-advisor can help you with both the academic investigation and the ORI investigation. These two processes are usually separate.

Academic Misconduct

Academic misconduct cases typically center on students. Policies don't tend to focus on faculty members, staff, coaches, and advisors, but academic misconduct still affects these individuals. Although institutions of higher education typically place an obligation on all members of their community to report incidents of academic misconduct, educators at this level consistently underreport incidents of cheating.

Some professors are afraid that if they expose a student who's cheated, the student might retaliate by accusing the professor of harassment or discrimination. Some are even worried about lawsuits for defamation of character.

With universities across the country cracking down on harassment and discrimination in the wake of the #metoo movement and changing Title IX rules, it's understandable that faculty and staff would want to avoid charges of harassment. If you're a faculty or staff member who has reported a student for academic misconduct and that student is now accusing you of discrimination, you may need the help of a legal expert. Although colleges take academic misconduct seriously, they take discrimination cases seriously too, and you don't know the approach your institution will take in resolving this matter.

Coaches and academic misconduct

Athletic coaches may come under fire for academic misconduct as well. Academic fraud related to student-athletes is widespread, according to the National Collegiate Athletic Association (NCAA). The NCAA has a set of guidelines concerning academic misconduct that often supplements a college's specific rules.

NCAA rules

The NCAA rules say colleges must maintain and adhere to written academic integrity policies and apply them to the entire student body. The association will hold the school responsible for “academic misconduct” if it violates its own rules (letting some students get away with cheating or academic fraud while punishing others). The NCAA also considers it “impermissible academic assistance” if the conduct of a staff member or booster falls outside a school's academic misconduct policy.

Student-athletes find themselves subject to two sets of rules: their university policies and NCAA policies. The NCAA violation structure addresses student-athlete misconduct and four levels of severity. Academic misconduct falls under the first level of the violation structure, the least severe. According to the NCAA, academic misconduct gives student-athletes a substantial competitive, unfair advantage.

Although students are responsible for following the applicable rules, it's often the case that they have help from coaches or athletic staff in committing academic fraud. Many institutions hold coaches responsible for setting the academic bar high for their student-athletes and encouraging them to complete their coursework honestly and with integrity. When a student-athlete is caught cheating, some of the spotlight might shine on the coaching staff since systematic academic fraud is such a widespread issue.

What happens to athletics staff members accused of academic misconduct involvement?

To help crack down on academic fraud, the NCAA encourages colleges and universities to have the following staff members:

  • Athletics academic staff
  • Athletics certification staff
  • Athletics compliance staff
  • Directors of athletics
  • Coaches
  • Faculty athletics representatives

Each of the above job positions has a role in preventing academic misconduct among students and staff members.

Staff members accused of helping student-athletes commit academic fraud, whether they're professors, coaches, or other college employees, may face consequences as severe as termination. Similar to Title IX cases, if you're implicated in an academic misconduct case, and your university is negligent in handling it in the eye of the NCAA, the NCAA may issue sanctions against your university. While restrictions to athletic participation might not seem as severe as withholding federal funding (as with Title IX), sanctions on athletics are still a huge blow to a university financially and reputationally. Universities don't want to get on the bad side of the NCAA.

What to do if you're accused of academic misconduct involvement

Most academic misconduct policies at universities and colleges cover students, not faculty or staff. Lack of coverage in the policy doesn't mean you're off the hook if you're accused of helping a student-athlete cheat. On the contrary, the university could be free to take actions it sees fit for your violation, giving you little recourse.

If you're accused of involvement with an academic cheating incident, you should consider seeking the advice of an attorney-advisor who deals with defense issues at colleges and universities. Students aren't the only ones who suffer from an academic misconduct violation on their record. Such an offense could come back to haunt you.

Responsible vs. Confidential Employees

When it comes to misconduct at colleges and universities, most institutions distinguish between responsible employees and confidential employees. What's the difference? Responsible employees have a duty to report incidents of sexual misconduct that they witness to their campus' equality office, Title IX office, or some similar entity. Confidential employees have a legal right to privileged communications with students and employees. They are under no obligation by the university to disclose information about prohibited conduct they have knowledge of.

As a college employee, it's vital that you understand which type of employee you are and what responsibilities you have when it comes to reporting sexual misconduct on campus.

Examples of confidential employees:

  • Health services employees
  • Counseling and mental health services employees
  • Victim services employees
  • Student legal services employees
  • Volunteer chaplains or clergy
  • Ombudsperson

Any employees who are not clearly stated by their university as confidential employees are responsible for reporting incidents or information about sexual misconduct. It's not just employees with supervisory rules that are responsible, either. It's all non-confidential employees.

Examples of responsible employees:

  • Faculty (full and part-time)
  • Staff
  • Student employees (residential advisors, teaching assistants, etc.) when they're working
  • Campus security personnel
  • Anyone else who is employed by the college or university and is not on the confidential employee list

Your university should make clear who is confidential and who is not. As an employee, it's also your responsibility to seek this information if you're unsure which type of employee you are.

Typical duties of responsible employees

Responsible employees usually must report cases of sexual harassment, sexual assault, sexual violence, or any other sexual misconduct they know about under any circumstance and as soon as possible to the appropriate office. For many college campuses, employees must report to the Title IX office.

If you're a responsible employee and someone comes to you with information about sexual misconduct but asks you to keep it confidential, you must, unfortunately, still report it in most cases. The best thing to do in this situation is to warn the other person that you cannot keep information about sexual misconduct secret under university rules beforehand.

Most colleges have on-campus resources for individuals who would like to speak about a sexual misconduct incident while staying anonymous and keeping the information private. This resource might be a counselor, an advocate office, a sexual assault support office, or something similar. If you're a responsible employee and you know that a member of your university's community would like to give you information about an incident involving sexual misconduct while keeping it confidential, you should steer them to these resources instead of letting them tell you, as you have a responsibility to report it.

What happens if you don't fulfill your responsibility to report sexual misconduct?

If you don't fulfill your obligation to report sexual misconduct and your university finds out, you could be subject to disciplinary action, including termination. As a faculty member, you might want to keep the identity of a student who confided in you confidential because the student doesn't want to file a formal sexual harassment complaint. Even if you report an incident to your Title IX office but refrain from giving the student's name, you could still be violating school policy. If your college takes action against you for not reporting, how can you respond?

In this situation, it would be best to seek the advice of an attorney-advisor who can help you defend yourself. An advisor on Title IX and university defense would be able to help you understand your rights if you're going up against your university.

An Attorney-Advisor for College Employees

If you're dealing with a university-specific work problem, a legal expert specialized in university and college defense issues can help. An attorney advisor can assess the seriousness of the allegation against you, collect the necessary evidence, and prepare a strong defense. Joseph D. Lento of the Lento Law Firm has defended students, faculty, and staff at universities across the country. Call the firm today at 888.535.3686 for more information.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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