Universities and employers have a duty to respond to allegations of sexual assault, harassment, and discrimination. Many organizations conduct investigations before responding, and plaintiffs have filed gender discrimination lawsuits based on the investigations themselves. For one example, read coverage of Sanford Heisler Sharp's trial about a Columbia University investigation here.
Whether an investigation is so faulty or biased that it creates a legal claim will depend on all the circumstances. Each case is different, and the line of fault is shifting in light of the #MeToo movement and the increased recognition of the need to end sexual harassment and assault.
A recent case concerning New York University highlights that, even where an investigation identifies sexual harassment and results in consequences for the harasser, it may be legally insufficient.
A former graduate student at NYU, Nimrod Reitman, alleged that his academic advisor, prominent professor Avita Ronell, sexually assaulted, sexually harassed, and stalked him and that she retaliated against him when he tried to stop her abuse.
The case has started a long-overdue conversation in the academic community about sexual harassment and assault and the power structures within universities that enable predators. A group of powerful academics issued a letter supporting Professor Ronell and attacking Mr. Reitman, even though the scholars admitted that they had no access to the case file. Some of the signatories have apologized for their involvement with the letter; others have doubled down.
NYU investigated Mr. Reitman’s claims and determined that Professor Ronell had sexually harassed him, but that there was insufficient evidence of sexual assault or stalking. In his lawsuit, Mr. Reitman said that NYU’s investigation was faulty and biased and that NYU did not take his allegations seriously enough and required him to submit more proof than reasonable because he is a man.
His suit raises the following questions, which should be considered in every investigation:
- What burdens does the investigation place on the person who reports misconduct?
In his complaint, Mr. Reitman says that NYU determined he had not been sexually assaulted because there were no “corroborating witnesses,” i.e. there was no one present during the alleged assaults besides Mr. Reitman and Professor Ronell, who denies they occurred. New York criminal laws eliminated the corroborating witness requirement for sexual assaults more than forty years ago, acknowledging that it would be a serious miscarriage of justice if sexual assaults were only prosecuted when witnesses were there to corroborate the victim’s allegations. If Mr. Reitman’s claims are true, it would mean that NYU imposed a higher standard in its internal investigation that would have been imposed in a criminal proceeding.
- Does the outcome of the investigation adequately weigh all of the evidence that has been submitted?
Mr. Reitman says that NYU determined Professor Ronell did not stalk him, despite extensive phone records, text messages, emails, and voicemails he submitted to the school, allegedly showing that Professor Ronell demanded that her advisee respond to her day and night and constantly update her on his personal life. Mr. Reitman also states that NYU determined he failed to demonstrate substantial emotional distress, despite his medical records, which described his mental and emotional agony.
- Did the investigation treat the accused differently than the accuser?
Mr. Reitman states that, among other things, NYU followed up with Professor Ronell’s witnesses, but refused to follow up with his; that NYU redacted information he had provided about Professor Ronell’s mental health, but not information she had provided about his; and that it failed to question the reliability of incomplete information provided by Professor Ronell while questioning the reliability of his medical records.
- Does the investigation respond to all the alleged misconduct, even if some of it happened after the investigation began?
It is illegal to retaliate against someone for complaining about sexual harassment or assault. Sanford Heisler recently won our client $1.25 million from Columbia Business School and one of its professors because, after our client reported the professor for sexual harassment, he sent emails to business school professors around the world calling her “crazy,” “sick,” and worse.
After the NYU investigation concluded, the infamous letter supporting Professor Ronell was circulated. Among other things, the letter referred to Mr. Reitman’s Title IX complaint as a “malicious campaign” motivated by “malicious intention.”
It is reasonable to assume that the letter, smearing of Mr. Reitman by 51 prominent professors and editors across North America and Europe (including 11 signatories associated with NYU) will discourage other students from making Title IX complaints against faculty. It is not clear whether NYU took additional steps after the letter was submitted to determine what role if any Professor Ronell had in encouraging it, and whether other employees were retaliating against Mr. Reitman.
Of course, there are other metrics by which the effectiveness of an investigation should be measured, such as how quickly the organization responds to a misconduct report, what measures it puts into place while an investigation is proceeding, what kind of training and preparation the investigator has received, and whether the organization takes reasonable measures to prevent further misconduct.
If you have been sexually harassed or assaulted at your workplace or school or retaliated against for complaining, whether your organization investigated your report or not, you should contact an employment lawyer.