The Landscape of Policies and Practices in Higher Education to Prevent Passing the Harasser

Policies and practices to prevent passing the harasser are not formulated within a vacuum; they are deeply influenced by legislation, community norms, peer activities, and lessons learned from other sectors. This paper is not intended to provide legal advice, but will explore the influences that may motivate an institution to implement anti-passing-the-harasser policies. Each institution will assess its own situation differently, depending on prior experiences, risk tolerance, and other motivating influences.

Federal and State Levels

Compliance with federal and state laws and regulations is a powerful motivating factor for IHEs, as agency complaints and reviews frequently occur, resulting in sanctions for noncompliance that place major sources of funding at risk. IHEs devote significant time and resources to ensuring adherence to all applicable legislation, and it is difficult to martial the same resources for practices that are not involved in equally high-stakes and intensive levels of scrutiny. Title IX of the Education Amendments of 1972 (U.S. Congress, 1972) and Title VII of the Civil Rights Act of 1964 (U.S. Congress, 1964) are the predominant sources of federal regulations that apply to IHEs in this area, but neither includes a requirement to obtain information on findings or sanctions related to sexual harassment from previous institutions or to disclose the same information to prospective employers.⁶

Despite the lack of federal-level regulations, there has been some movement at the state level—specifically in Washington State. Prior to Washington State’s HB 2327 (effective June 2020),⁷ no state legislative model for practices to prevent passing the harasser in the United States existed (Washington State Legislature, 2020). Key components of the bill include the following:

• A requirement for hiring institutions to
  • ask applicants about former misconduct and ongoing investigations;
  • contact applicants’ former higher education employers to ask about misconduct and ongoing investigations;
  • keep personnel files with misconduct findings; and
  • report back to the legislature on campus climate assessments, resulting changes to policies, outreach to marginalized students, and so forth.

__________________

• Added immunity from civil and criminal liability for higher education institutions to ask about former misconduct or to disclose former misconduct⁸
• Restrictions on settlement agreements
• A requirement to continue investigations even if the accused individual resigns
• An explicit allowance for institutions of higher education to hire an applicant with a history of misconduct

With this requirement in place, IHEs in Washington State have either developed policies in line with the legislative text, or they are in the process of developing them. While no other state has such a requirement at the time of this publication, HB 2327 provides a model for those that may be considering similar requirements—and indeed, some are. Outside of the specific realm of higher education, the Connecticut State Judiciary Committee proposed Senate Bill 3 (Connecticut State General Assembly, 2023) this year,⁸ a piece of legislation that primarily focused on data privacy, but also had significant implications for preventing passing the harasser (Schwartz, 2023). The original text would have required any employer who is providing a recommendation for a current or former employee to also disclose any knowledge of sexual harassment or sexual assault to the prospective employer within a certain time frame. A failure to disclose such knowledge may result in the former employer facing liability for any future acts of sexual harassment and sexual assault committed by that employee in the new workplace. While this bill passed without the language around preventing passing the harasser, widespread media coverage of the issue of passing the harasser and a trend in privacy legislation favoring disclosure indicates that similar bills may soon emerge across the country. Administrators at institutions without anti-passing-the-harasser policies might consider starting conversations now, while there is time to carefully consider the ideal scope and implementation of such policies for their own campuses. Further, these conversations may serve to give IHEs the tools to assist and guide any similar state law efforts that would affect them.

Privacy law is often framed in opposition to laws relating to preventing passing the harasser. Non-disclosure agreements (NDAs) in particular have been prolific across academia, posing a significant barrier to communication about faculty misconduct across institutions. Historically, they have been perceived as restricting the ability of IHEs to disclose prior bad acts, but in many states, they may not completely prevent disclosure. A 2022 article by the Society for Human Resource Management indicated that Maine, Oregon, Washington, California, Illinois, New Jersey, and New York have all passed laws that restrict employers’ ability to prevent the disclosure of information related to sexual harassment and assault based on non-disclosure and non-disparagement clauses (Shepherd, 2022). Wisconsin, Florida, Georgia, and many other states have some form of civil liability exemptions or immunity for good faith disclosures of job performance information that may weaken NDAs and other privacy agreements (see the table “States with Statutes Regarding Civil Liability Exemptions”). Additionally, the National Labor Relations Board recently ruled that standard non-disparagement and confidentiality provisions contained in a severance agreement were invalid unless they were appropriately narrow and specific in scope (Albrecht, 2023).

Further weakening prohibitions on disclosure, Congress has recently passed the Speak Out Act (P.L. 117-224, December 7, 2022), which voids pre-dispute non-disclosure and non-disparagement clauses in workplace harassment cases.⁹

__________________

This legislation could counter many concerns related to state-level privacy laws; however, as the act became effective in December 2022, how those privacy laws are interpreted going forward is unlikely to be known soon. Given that some states (such as California, Illinois, and New York) may impose greater limitations on NDAs than the Speak Out Act does, IHEs considering establishing policies to prevent passing the harasser may first want to assess their state privacy laws and how the Speak Out Act would affect them.

Finally, private and public institutions may face different degrees of public exposure. For example, a public institution may be required by law to provide access to certain records or processes, such as the metrics used in hiring decisions or the deliberations made by a hiring committee. Public institutions may also need to interact with more oversight bodies than private institutions do. This difference in public exposure may influence an IHE’s decision to implement an anti-passing-the-harasser policy, but whether it is a motivation for or against such policies is up to the institution itself.

Accreditation, Funding, and Association Levels

Beyond state and federal legal requirements, accreditation bodies, research funders, and professional associations are also pursuing efforts to address passing the harasser, which may affect or influence an individual academic institution’s policies and practices. In research funding, some federal agencies have implemented reporting requirements for discrimination and harassment, including sexual harassment, for institutions granted funding. Becoming effective in 2018 for the National Science Foundation (NSF) (NSF, 2021) and in 2020 for both the National Aeronautics and Space Administration (NASA, 2020) and the National Institutes of Health (NIH) (NIH, 2022), institutions are required to notify the agency when the principal investigator or co-principal investigator of an award has been subjected to an “administrative action” or has been “disciplined” for findings, investigations, or concerns regarding sexual harassment and other hostile working conditions.

__________________

These reporting requirements aim to ensure that the policies of the institution are followed and that any changes to the staffing or funding of the affected project are appropriately addressed. With NIH funding, participation in the peer review process is also restricted. While they are a mechanism for external accountability, these reporting requirements leave unaddressed the issues of institutional variation in policies, settlements, incomplete investigations, future funding, and the transfer of awards between institutions. Although the implication is that funding agencies may use information about findings of misconduct to inform their resource allocation, effectively preventing passing the harasser from one grant to another or preventing the transfer of an existing grant to a different institution, it is unclear whether this is the primary purpose or effect of these disclosure policies. In at least one recent case, a genome researcher was able to maintain two NIH grants and receive a new $2.5 million NIH grant after being found responsible for severe and pervasive misconduct at his former institution (Wadman, 2023).

Moreover, it is unclear what mechanisms are currently in place to assess that the reporting requirement is not disincentivizing appropriate action. Specifically, if IHEs are worried that federal agencies may revoke funding to projects led by researchers found responsible for sexual harassment, they may be less likely to investigate reports, use interim measures pending investigations, or issue formal findings. The purpose of these agency-level disclosure policies is not to revoke funding from IHEs that are acting appropriately to replace project staff found responsible for misconduct, but academic star culture is pervasive in academia and may contribute to a fear that replacing an academic star with a less well-known researcher will result in a loss of funding. This is particularly salient in cases when no appropriate replacement is available for the academic star.

A parallel approach explores the role of professional societies in the development of community standards regarding sexual harassment. For example, the Association of American Universities has recommended that both job applicants and member institutions share information about “substantiated findings of sexual misconduct” (AAU, 2021). The American Association of University Professors issued a Statement on Professional Ethics, which does not explicitly call for sharing information about the sexual misconduct history of job applicants, but it does disavow the exploitation and harassment of students and colleagues (AAUP, 2009). Other societies, such as AGU,¹¹ the American Economic Association, and the American Association for the Advancement of Science (AAAS), have instituted sanctions for members who have violated sexual harassment policies (AGU, 2017; Hoy, 2018; Rousseau, 2021).

While institutional policies generally reflect only the expectations and principles of that particular institution, association-level practices and recommendations affect a collective of individuals and institutions and can establish a community norm of transparency. An association-level cohort approach also leverages the prestige of the associations to promote interventions while reducing the potential negative repercussions on individual institutions that are leading the way in anti-sexual harassment endeavors. Moreover, this approach recognizes conferences, meetings, and other events as sites where harassment occurs. Some members of faculty may, in fact, engage in harassing behaviors only while participating in membership association events instead of on their own campuses. Faculty and others work and interact in multiple settings, and their actions

__________________

in one setting can influence whether vulnerable populations feel safe and able to fully participate in other settings. Nonetheless, mechanisms to ensure accountability and to share information remain barriers to professional societies implementing sanctions against members or event attendees.

In recognition of this, the Societies Consortium on Sexual Harassment in STEMM is planning a pilot this year of the Ethical Transparency Tool (ETT)¹² to establish a database of consent to authorize and automate disclosures on a range of misconduct behaviors (Societies Consortium, 2022). The Societies Consortium is a collection of more than 100 science, technology, engineering, mathematics, and medical (STEMM) professional societies,¹³ such as AGU, AAAS, and the Association of American Medical Colleges, which was formed to implement recommendations from the National Academies 2018 report on the Sexual Harassment of Women, support the Association of American University’s harassment prevention principles, and effectively address sexual harassment in STEMM.

The ETT is a multifaceted tool that can be utilized by any IHE, professional society, or other research organization that wants to streamline requests for disclosures of misconduct findings about potential job candidates. The core component of the ETT is a database that houses consents for disclosure—not the actual records—“designed to ease the burden of fact-sharing among institutions, societies, and other organizations” while protecting each institution’s independence and minimizing legal exposure (Societies Consortium, 2022). It is not a database of findings or sanctions that could be construed as a blame list, but rather a warehouse for consent from potential applicants for former employers to disclose information to prospective employers. The basic process is that a registered organization will ask a job applicant to complete a consent form on the ETT to allow their previous employers to share any findings of misconduct with the registered organization as a prospective employer. The consent form will then “live” in the ETT database for a period of 10 years, unless it is rescinded or renewed by the job applicant, and it gives permission for all of the applicant’s current or former employers to share any misconduct findings with any registered organizations that request them during that time period. The ETT will then prompt previous employers to complete an efficient, check box–style disclosure form and send it securely to the prospective employer—not to the ETT. The ETT will never receive or house the disclosures themselves, just the consent forms. The ETT is intended to streamline the information-sharing process and create a cultural norm of disclosure. It is also of interest not only because it represents an association-level approach to addressing passing the harasser through the Societies Consortium, but also because the ETT is a tool as opposed to a policy. Just as policies can be layered across individual institutions and membership associations, tools can be utilized in service of policies and procedures.

Another approach based on the accreditation process incorporates elements of both individual accountability and cohort mechanisms (Fortney & Morris, 2021). The Higher Education Act of 1965 (P.L. 89-329, November 8, 1965) requires that institutions of higher education meet acceptable levels of quality as determined by a nationally recognized accrediting body to access federal student aid programs for postsecondary education.¹⁴

__________________

While multiple accrediting agencies are currently recognized, common components of evaluation criteria include standards addressing safety, ethics, climate, and faculty hiring, which could be expanded to include an assessment of prior misconduct as recently proposed in the California Law Review (Fortney & Morris, 2021). Such an approach has several advantages. First, accountability to an external organization such as an accrediting agency could overcome inconsistencies among institutions in policies for the sharing of information about previous misconduct, placing responsibility on both the current and the potential future employers, and reduce concerns about liability, intra-institutional opposition, and competitiveness in the hiring marketplace. Moreover, the accreditation process encourages IHEs to meet the standards through institutional evaluation and planning and ensures quality through peer review (Fortney & Morris, 2021). As such, policies and procedures are developed with input from the campus community to meet institutional needs, and these approaches are evaluated in the context of best practices at other institutions to promote continuous improvement.

However, the accreditation approach is currently hypothetical. No accrediting bodies currently require the disclosure of information about a job applicant’s history of misconduct. Further, if only a small number of accrediting bodies include such a requirement, it may encourage IHEs to “accreditor shop” to select an accreditor that does not require this kind of information sharing.

Lessons Learned from Other Sectors

The prevention of passing the harasser is not a topic unique to higher education. For many years, this issue has been a long-standing priority for other sectors where children are involved, such as youth sports organizations and K–12 education, both of which have taken significant steps to protect their communities. Furthermore, the legal profession has been reflecting on the issue of sexual harassment and the mandatory arbitration clauses and nondisclosure agreements that play a role in allowing harassment to continue.

The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (P.L. 115-126, February 14, 2018) is a federal law that aims to prevent and respond to allegations of sexual misconduct involving children and amateurs in sport by holding U.S. Olympic governing bodies and amateur sports organizations accountable to fulfill certain requirements.¹⁵ To support those goals, the Safe Sport Authorization Act established the United States Center for SafeSport as an independent organization with “jurisdiction over the U.S. Olympic and Paralympic Committee (the Corporation) and national governing bodies . . . with regard to safeguarding amateur athletes against abuse in sports” (U.S. Government Accountability Office, 2021). The Center for SafeSport not only investigates claims of sexual misconduct but also issues sanctions such as lifetime bans for those found responsible. To facilitate enforcement of the bans and to prevent harassers moving from one institution to another, it hosts a central database of sanctioned individuals and their applicable sanctions. While the Center for SafeSport has been criticized for deleting expired sanctions from its database and thereby leaving no record of prior misconduct, its efforts to centralize record-keeping and communicate sanctions may be of interest to higher education (Madden & Murphy, 2022).

Case law from the K–12 educational system is also related to the issue of passing the harasser in higher education. While no federal law regulates the disclosure of or request for information on sexual harassment findings for individuals seeking employment in K–12 (U.S. Government Accountability Office, 2010), courts are beginning to set the precedent that such exchanges of information are relevant and material to hiring decisions. As discussed in the UW System’s innovative practice, “recent decisions in Illinois, California, and other jurisdictions related to K–12 and other sensitive populations” suggest that a “duty to disclose” may become prevalent in case law (Harton & Benya, 2022b). For example, in Randi W. v. Muroc Joint Unified School District, the court found that if an institution providing a recommendation fails to disclose relevant information about sexual harassment, such an omission would constitute misrepresentation of facts (Schlavensky, 2019). Such decisions could potentially leave former employers liable for the future harm caused by an employee for whom they provided a reference without mentioning prior misconduct.

In the legal profession, there is also some pushback against mandatory arbitration clauses and nondisclosure agreements (Tippett, 2019). A 2018 article in ABA Journal highlighted a potential trend in “large law firms doing away with mandatory arbitration agreements for employees,” including Munger, Tolles and Olson and Orrick Herrington and Sutcliffe (Ward, 2018). Further, “56 attorneys general signed a letter calling on Congress to end secret, mandatory arbitration for sexual harassment claims” (Ward, 2018). The letter contended that for the specific issue of sexual harassment, the benefits of arbitration are vastly outweighed by the cost of keeping sexual harassment claims secret from others (Cassens Weiss, 2018). This secrecy

__________________

contributes to the perpetuation of sexual harassment and the ability of harassers to move from one institution to another without the latter’s knowledge of previous misconduct.