Current Resources and Strategies in Implementing Policies and Practices to Prevent Passing the Harasser

The number of institutions of higher education that have either implemented or begun the process of developing an anti-passing-the-harasser policy has been growing steadily since 2018. However, as there is yet to be a nationwide mandate or other uniform embrace of and approach to such a policy, most IHEs are left to chart this new territory with few reference points. As more and more academic and research institutions implement anti-passing-the-harasser policies, their individual choices for the scope of the policy and implementation mechanics can inform other institutions considering such polices.

The goal of this section is to highlight key decision points and considerations regarding policy scope and implementation to assist individual institutions that want to craft policies for preventing passing the harasser. This includes considerations for how they would fit with current campus policies, codes, and culture; their state legal context; the value of building buy-in from academic and administrative leadership; and how such policies can relate to efforts to promote workforce integrity and campus safety. In other words, dispensing with the notion of a one-size-fits-all approach that can hinder the adoption of anti-passing-the-harasser measures, this section seeks to assist institutions with adapting such policies to their environments.

Decision points are illustrated with examples from actual and proposed university policies (or in some cases, consortia of IHEs), which readers can examine in full for further clarity and ideas. This section is not intended to be a list of best practices, but rather a list of choices and examples to inform each institution’s discussion and decision-making regarding a workable policy for their campus and community.

Although procedures on acquiring information about harassment as a hiring institution and procedures for disclosing such information as a current or former employer are closely related, they are rarely required within the same policy. This section primarily focuses on acquiring information, as that is what the majority of examples of anti-passing-the-harasser policies currently focus on.

Authority and Support

To date, two key situations have motivated individual institutions to enact anti-passing-the-harasser policies: (1) widespread media coverage of a situation in which an institution either passed on or received a harasser or (2) a state legislature mandating such a policy. For Washington State—the only state with such a mandate—the legislation was enacted as a response to media coverage of a former University of Washington employee’s transition to Grand Canyon University without the latter institution’s knowledge of a sexual misconduct settlement (Fields, 2019); therefore, all Washington State IHEs had to contend with both the new legal requirements and possible public scrutiny of their own practices.

This reactive approach is triggered only after repeated harassment has already harmed community members or done reputational damage to institutions. In this way, it fails to prevent further harm in academia, and leaves administrators and legal counsel in a position of scrambling to respond. Proactively creating anti-passing-the-harasser policies before these situations arise will do more to promote the academic community’s safe access to education and prevent sexual harassment from continuing.

In fostering a more proactive approach, a key question is what authority an institution may leverage to motivate its leadership and community to decide to create such a policy. At most academic and research institutions, faculty governance and leadership groups (whether at department, division, or senior administrative levels) execute key roles in determining and carrying out faculty hiring policies, plans, and searches. Therefore, it is important for IHEs to establish buy-in with these groups for new and expanded policies and involve them in the planning process, including identifying the scope and mechanics of implementation. In response to media scrutiny over two public cases of passing the harasser, the Board of Regents for the University of Wisconsin System passed a resolution to incorporate anti-passing-the-harasser policies into their Operational Policy (University of Wisconsin System, 2019). In response to Washington State’s HB 2327, the University of Washington System chose to be more comprehensive in its policies than strictly required by the law, and successfully engaged several key stakeholder groups within the administration to create buy-in (University of Washington, 2019); furthermore, the Faculty Senate passed a body of complementary legislation intended to support equitable hiring and promotion practices, which required collaboration with Faculty Councils, senior executive leadership (e.g., the president and provost), and administrative units (e.g., human resources) (University of Washington, 2020). Similarly, UC Davis collaborated with both its own counsel and counsel within the UC Office of the President, UC Davis Academic Senate, senior staff, and academic leadership to obtain buy-in for its anti-passing-the-harasser policy (Harton & Benya, 2022a).

As a starting point, schools can look to their existing policies, codes of ethics, and mission and values statements, including honor codes, Title IX and anti-discrimination policies, diversity plans, and even campus security procedures. Establishing an anti-passing-the-harasser policy can be framed as a logical offshoot of this existing framework, rather than a radical new initiative. The UC Davis policy, for example, seeks information about the prior misconduct of job applicants (finalist candidates, specifically) that would violate the Faculty Code of Conduct (University of California, 2020), which—in part—states that, “as colleagues, professors have obligations that derive from common membership in the community of scholars. Professors do not discriminate against or harass colleagues,” and “they avoid any exploitation, harassment, or discriminatory treatment of students.” The principles cited by the UC Davis Code of Conduct originate from the American Association of University Professors’ Statement on Professional Ethics (AAUP, 2009). Similarly, the Association of American Universities established Principles on Preventing Sexual Harassment in Academia in 2021, which can guide not only member institutions but also all IHEs in creating their own anti-passing-the-harasser policies (AAU, 2021).

Furthermore, universities can present inquiries into misconduct as an addendum to the process of requesting and reviewing diversity statements, which has become a standard element of vetting faculty candidates

at many institutions (University of Washington, 2020). It makes sense to check whether candidates have acted toward others in conformity with policies and laws promoting diversity, inclusion, equity, safety, and collegiality, as well as their own representations in diversity statements. Indeed, institutions can point to an anti-passing-the-harasser policy as illustrative of their commitment to these goals and values. Individual faculty members can be incentivized to serve on committees related to drafting such a policy by highlighting the resulting benefit not only in the quality of new hires but also in their ability to highlight in grant applications their committee work as illustrative of their commitment to diversity, equity, and inclusion (DEI) issues. By using existing policy frameworks in this way, institutions can more easily promote buy-in and initiation of the effort to create and implement the policy.

For a summary of decision points related to authority and support, see Table 1.

TABLE 1. Examples of Policies and Practices to Prevent Passing the Harasser: Authority and Support

Implementation

The feasibility of any campus policy depends on both its scope and its implementation. For anti-passing-the-harasser policies in particular, there are many key decisions to be made about how much information is wanted, how it is going to be obtained, and how it is going to be reviewed.

Key factors related to scope are categories of misconduct about which information is requested; the types of information requested (e.g., substantiated findings, formal complaints, investigations, or any allegation); and the covered timeframe. For categories of misconduct, some institutions have focused on sexual harassment or sexual misconduct, while others have expanded requests to include information regarding unlawful discrimination, other forms of harassment (e.g., racial harassment), academic and research misconduct, or financial and any other misconduct. It is useful to consider what forms of misconduct are of interest to hiring institutions, not only because of the potential efficiency found in asking about all forms of misconduct at once, but also because sexual harassment can be combined with gender and racial harassment in an intersectional manner than makes it challenging to classify as one form of harassment alone (NASEM, 2018). Institutions with a single focus on sexual misconduct may correspondingly seek a response period of many years and/or greater detail in the response, whereas institutions expanding the misconduct categories may limit the number of years or scope of the response, to ensure a reasonable burden on responding institutions and faster response times.

In considering the types of information requested, examples range from only findings of misconduct to open investigations. If only findings are requested and not allegations, open investigations, or investigations that could not be completed due to the subject’s departure, then important information may be missed; however, there are concerns about withholding offers of employment simply for investigations that may or may not result in substantiated findings. Institutions may address these concerns by

• asking for information about substantiated findings and simultaneously requiring applicants to self-attest that they are not currently under investigation;
• asking for information more broadly (e.g., violations, open investigations, and instances in which candidates left their previous position(s) while being actively investigated), but reassuring applicants that adverse information will not result in an automatic rejection; or
• simply asking for information about any misconduct up to and including resignations in lieu of formal investigative findings.

Another key question around scope is the period of time for which the information may be relevant. The older the instances of misconduct are, the less relevant they may be to current risk assessments and the more challenging they may be to document; however, only seeking information from recent years may not provide the hiring institution with a comprehensive picture of the prospective employee’s history. Institutions may consider specifying a recent period in their requests for information (i.e., “the past 3 years”) or framing the request in terms of employment history (i.e., “most recent employer”) to avoid asking about a specific period

of time. IHEs may also consider establishing longer periods of interest when the source of the information is easy to work with (i.e., within their own university system or a state agency).

The second key decision point relating to implementation—how to obtain the requested information—influences the response time and even the likelihood that any response will be provided from a candidate’s previous institutions. Generally, in comparing the experiences of institutions with anti-passing-the-harasser policies, the simpler the required response sought, whether in form or content or both, the faster the response will be. In deciding on the form of the response relative to the scope of the request, therefore, institutions can consider how the breadth of each misconduct category and the types of information requested either expand or reduce the burden on the responding institutions, allowing them to provide helpful information in a timely manner. One example of balancing a broad subject matter request with a simple response form is the ETT. The ETT is an automated form and process for obtaining consent to authorize disclosures that can be used by any institution that registers to use it. The ETT would potentially cover sexual, gender-based, race-based, financial, and research misconduct, but would provide an efficient check-the-box disclosure form, minimizing the burden of response and review for the disclosing and requesting institutions, respectively. The automated process could also include a step for candidates to input their consent to disclosure at any stage of the search-and-hire process deemed appropriate by the hiring institution. Another option is for the hiring institution to utilize other processes already in place for requesting information from candidates’ previous institutions, to promote efficiency and minimize response burdens. For example, UC Davis offers “a coordinated process for conducting reference checks that also encompasses any form (or combination) of harassment or discrimination that impacts the applicant’s capacity to perform research, teaching, or service duties” (Harton & Benya, 2022a).

Another consideration in how the requested information is obtained is when to ask the candidates’ former institutions for the information. The timing of the request affects its scope. For example, asking for a comprehensive, detailed request covering many categories of misconduct and types of information at the final reference check stage, when a candidate may have multiple offers, can compromise an institution’s ability to recruit that candidate. Other institutions making that candidate an offer may have already determined they have no record of misconduct, increasing their ability to quickly recruit the candidate. On the other hand, making requests too early in the process for applicants who may not meet the search criteria could waste time and resources for both the hiring and responding institutions, unless the scope of requested disclosures was very limited. Early requests may also dissuade applicants from applying if they do not want their employers to be aware that they are seeking a new position. Again, institutions could balance their choices for the timing and scope of requested disclosures to maximize the utility of the information received and recruitment efforts. One institution, Whatcom Community College, uses a bifurcated approach. For positions with minimal or entirely without supervisory responsibilities, Whatcom requests information about prior misconduct during the third interview. For positions with significant supervisory responsibilities and high-level positions (such as vice presidents) that may require flying out applicants to an interview, Whatcom requests information about misconduct at the beginning of the recruitment process.

Requiring consent for disclosure at the application stage can save time regardless of when the actual request for disclosure is made. Several universities have employed this approach. UC Davis, for example, requires all individuals applying for a tenure-track faculty position to include with their application materials a signed release, agreeing to a reference check from all of their previous university employers if they are a top candidate. The Ohio State University

employs a similar approach, requiring of all candidates for tenured faculty positions, at the beginning of the process, an authorization form for contacting current and past employers regarding any misconduct, if and when they are a finalist for the position. Ohio State also adds language to all offer letters requiring the selected candidate to agree that they have disclosed all information about “all employment-related misconduct findings and pending disciplinary proceedings” (The Ohio State University, 2020). The ETT is a potential mechanism for obtaining consents to disclosure requests. It would allow institutions to register to use the tool and require candidates then to register to complete a consent-to-disclosure form as a condition of application or other consideration, including for honors or leadership or governance roles. At a minimum, however, institutions can take the approach of the University of Illinois and provide notice upfront to potential applicants that inquiries related to past findings of sexual misconduct and harassment will be made of them and past employers and that final candidates will be required to authorize related disclosures as part of the hiring process.

Another way to involve the candidates themselves in the disclosure process is to require some degree of self-reporting at an appropriate stage of the process, whether of all applicants, top finalists, or offerees. For example, Vanderbilt University includes in all faculty offer and appointment letters a requirement to self-report “if you have been or are currently the subject of an investigation or any administrative action based on an allegation of workplace misconduct,” (Vanderbilt University, 2019). At the opposite end of the search process, the University of Massachusetts (UMass) Amherst employs a broader self-reporting requirement, incorporating into its faculty and staff job applications a question related to previous violations of policies covering discrimination, harassment, or bullying.

A final point to consider is to whom to direct the disclosure request, assuming a check beyond a self-report is desired. Adding misconduct-related questions to reference checks already directed by academic or senior staff search committees to appropriate faculty and staff at former institutions would be more efficient. However, individuals who typically receive standard academic or administrative reference check requests, such as deans, department chairs, or senior staff, may not have knowledge of or access to key misconduct-related information, due to privacy laws and policies, thereby leaving such information uncovered. Several hiring institutions, therefore, have been directing misconduct-related inquiries, only or additionally, to institutional human resources, equity, or Title IX offices.

Finally, the third key decision point relating to implementation—how to review the information requested—depends on the identification of available personnel who will review and follow up on the information disclosed. Available human resources, therefore, is a factor to consider in determining the scope of the information requested. While institutions may choose to hire additional personnel to review the specific information, many will be utilizing existing personnel, including potentially by training search committee members to perform reviews of disclosures or assigning review to employees with expertise in Title IX, equity, legal risk, or human resources management. For example, the University of Tennessee, Knoxville (UTK) is piloting a review process in which a Sexual Misconduct Attestation Committee will review any applications for which the applicant or their former institution attests to investigations or findings of sexual misconduct. UMass Amherst elected to conduct 2-hour workshops for faculty with important roles

in recruitment to impart research-driven best practices in recruiting for diversity and equity across every stage of the search process. One option to use in tandem with review processes, especially where personnel are limited, could be to create a guide for review of disclosed information, in line with best practices and institutional policies and codes of ethics.

For a summary of decision points related to implementation, see Table 2.

TABLE 2. Examples of Policies and Practices to Prevent Passing the Harasser: Implementation

Resulting Effect of the Policies

Finally, the success of these policies does not end with the launch of a pilot or implementation of a new procedure, but requires careful consideration of the effect of such efforts. As previously mentioned, the effect on recruitment efforts, especially for competitive candidates, is an important consideration. Many institutions share concerns that if they have to wait for the results of the disclosure request, an applicant may accept an offer from a competitor. As discussed, this risk can be mitigated by minimizing the amount of information requested, requiring self-disclosures, or by issuing tentative offers that are dependent on but can be offered prior to the results of a reference check.

Another key effect relates to institutional autonomy in hiring decisions, particularly within a university system. While institutions may feel that implementing these policies will restrict their ability to evaluate candidates on a case-by-case basis, most existing policies are framed as an information-gathering exercise and simply provide a mechanism to give hiring committees a more comprehensive understanding of any risk that a candidate poses based on any prior misconduct. In fact, given the individualized, unique circumstances of any instance of misconduct, a one-size-fits-all approach could lead to inaccurate assessments where risks are overstated or understated. Policies that require information-gathering efforts, therefore, do not have to stipulate any particular decision be made based on the information gathered, though it can be helpful to provide some guidelines for how to assess the significance of the information gathered and what factors

demonstrate that an individual’s behavior will no longer be deemed a risk to the campus community. The University of Illinois System, the University of Wisconsin System, and Purdue University all offer decision-making guidelines to hiring committees in lieu of blanket rejections.

Finally, while the costs to individuals is of paramount consideration, institutions can and do face liability related to hiring decisions. Institutions considering anti-passing-the-harasser policies may fear greater liability from hiring someone with a history of misconduct after a disclosure request process failed to catch the prior misconduct, than if the hire had been made in the absence of any such process. In responding to disclosure requests, IHEs may be concerned about employee litigation over the sharing of misconduct information with potential employers, leading to disclosures that are more limited than what the requesting IHEs sought. These concerns can be mitigated by limiting requests for information to only substantiated findings, asking applicants to self-attest regarding their history of misconduct findings and investigation processes (or lack thereof), and/or asking applicants to sign releases allowing prior institutions to respond appropriately to disclosure requests as part of the application process. Therefore, if a history of misconduct is discovered, institutions have grounds for dismissal.

Tables 1–3 illustrate examples of current policies and pilots of policies that are in operation across the country. Many IHEs have assessed the relative risk of litigation against the known damage that passing the harasser can cause, and they have determined that establishing these policies is the safest step forward for their campuses. Moreover, as discussed in the previous section of this paper, the legal trend appears to be toward sharing information more transparently.

For a summary of decision points related to the resulting effects of the policies, see Table 3.

TABLE 3. Examples of Policies and Practices to Prevent Passing the Harasser: Resulting Effect of the Policies