What Can Institutions Do About Retaliation in Higher Education?

As shown by the previous section’s challenge examples and hypothetical scenarios, higher education institutions are not prepared to handle the variable and complex nature of retaliation, which can ultimately lead people to experience institutional betrayal and for hostile environments to persist (Smith and Freyd, 2014). Institutions are further hindered in response and prevention efforts when they limit themselves to the legal framework. However, by recognizing the limitations inherent in that framework, institutions have an opportunity to develop creative anti-retaliation strategies and solutions—by modifying and/or expanding their current policies and practices in ways that better serve their communities.

Strategies for Responding to Retaliation

Since the current sexual harassment laws hold institutions—not individuals—accountable for retaliation, higher education institutions have created policies that, while reflecting the legal framework, aim to hold the individuals in their community accountable. Even so, considering the legal limitations pointed out in this paper, and the reality that institutions often comply with, but do not go beyond, what is required by the law, their policies can also be limited in how individuals are held accountable for retaliation. However, in the same way that universities regularly regulate the behavior of community members through policies on conduct, domestic partnership, or computer use—which often set a higher bar than legal requirements—institutions can likewise broaden definitions of retaliation and set out procedures for preventing and responding to it, that better correspond to the university environment. In doing so, institutions can move beyond mere compliance by using their internal policies to broaden the definition of retaliation and thus aim to address the full range of lived experiences that exist in academia.¹⁷ Building upon the legal definition of retaliation (an adverse action that results because of a protected activity) institutions have control to broaden definitions of what is considered an adverse action and what is categorized as a protected activity within the context of institutional policies. Some institutions may be wary of implementing broader policies out of fear of liability; however, it is common to utilize policies to establish higher expectations than those required by the law. Institutions should consult with their legal counsel when considering such policy changes and must ensure they can and will comply with their own stated policies.

The following suggestions present strategies that address components of the retaliation definition:

• Broadening the definition for “adverse action.” Institutions can, through their own policies and procedures, broaden the types of negative actions considered retaliatory to include the types of actions described in this paper’s hypothetical scenarios. While a large body of case law addresses adverse actions in the employment context, and especially under Title VII, there is far less precedent under Title IX and particularly under the August 2020 regulations.
  
  Courts interpreting Title IX have often looked to Title VII precedent for guidance and may continue to do so going forward. Title VII case law has adopted a broad understanding of the type of actions that

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constitute retaliatory actions, described as any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” When this interpretation is extrapolated to the experience of a reasonable student or a reasonable trainee, both punitive adverse actions (such as grades or poor evaluations) and passive adverse actions (such as refusing recommendations and significant educational/professional opportunities) may be considered actions that would dissuade a reasonable student/trainee from making or supporting a charge of discrimination or harassment. While the legal interpretation of less significant retaliatory consequences is not as clear, institutions have discretion to define retaliatory adverse actions broadly, as long as they meet the minimum requirements of all applicable laws. In particular, if institutional policies include the Title VII language that addresses incidents where a reasonable worker is dissuaded from filing a complaint—and provide specific examples of conduct that could be considered retaliatory for both employees and students—institutions can more clearly define an otherwise nebulous concept.

• Broadening the definition for “protected activity.” An anti-retaliation definition that encompasses a broader range of protected activities than could help expand and strengthen safeguards for reporters, thereby encouraging more individuals to report sexual harassment. Some individuals may believe, incorrectly, that retaliation protections are only available after someone has filed a written complaint with their institution. Creating a policy where anti-retaliation protections are shown to be more widely available—for example, in situations involving informal or extra-institutional reports of sexual harassment—demonstrates to potential reporters that the institution is serious about protecting individuals who come forward with concerns of harassment.
  
  For individuals who have concerns about general incivility, bullying, and sexual harassment, policies can include explanations of how such overlapping concerns will be addressed, including retaliation based on a report of such concerns. And although some institutions offer numerous types of retaliation and whistle-blowing protection when someone reports a potential policy violation or ethical concern, these protections may not be apparent solely from the institution’s sexual misconduct policy. Additionally, institutions can explicitly define who is protected, including those who formally or informally report and bystanders who intervene. As institutions implement more and more prevention programs that include bystander intervention, they create a parallel need to include adequate protections for when interventions do occur. Thus, establishing a broader range of protected activities that also clearly protect bystanders who intervene could help further promote a culture of intervention and opposition to sexual harassment.

Notably, the broadening of these definitions may lead to more allegations of retaliation, but it does not change the institution’s obligation to neutrally and consistently investigate such claims before determining whether the evidence supports the allegations.

Organizations that form part of broader academic networks, from universities to professional associations, research foundations, and scholarly journals, can also consider developing their own policies for recognizing retaliation that takes place across distinct academic venues. A growing list of federal research agencies and professional associations have already developed anti-harassment policies that require intra-organizational collaboration on complaints, and several universities have authorized “pass-the-harasser” policies that

require institutions to share documentation of sexual misconduct findings (Harton and Benya, 2022a, 2022b). Such policies might also include procedures requiring an organization to report formal investigations and/or findings to the university that employs the accused. Policies could also communicate an organization’s commitment to cooperating with a university’s investigation of retaliation complaints to the greatest extent allowed by law. Such policies, like university anti-retaliation policies already in place, can be regularly communicated to the organization’s stakeholders, and provide opportunities for dialogue and training to support community members’ knowledge of policies and access to the responsible administrators and supportive services.

In addition to developing and implementing broader institutional policies, it is important that institutions communicate their anti-retaliation policies to their community. Effective communication plans and increased transparency of an institution’s anti-retaliation policies could help promote consistent messaging that the institution does not tolerate sexual harassment or retaliation, which is likely to increase trust and a perception that the environment is fair by those in the institution (Umphress and Thomas, 2022). Communicating plans for the broader range of adverse actions, protected activities, and the forms of support that an institution will provide in response to retaliation could help build awareness and understanding. Institutions can also publish positive statements that value opposition to sexual harassment and show the ways in which the institution supports and protects those who report or intervene in such activity.

Strategies for Preventing Retaliation

Preventing retaliation from occurring in the first place is another area needing more detailed attention from institutions. Indeed, even if they implement broader policies, communicate better responses, and find better ways to contend with adverse actions, the nuanced forms of retaliation could still creep through institutions’ walls of protection. As countermeasures, institutions can develop strategies for equipping and preparing individuals and communities to successfully protect people from experiencing both obvious and subtle retaliation and for educating the community on recognizing retaliatory conduct. Such prevention efforts could create not only an environment that deters retaliation from occurring, but also space for acknowledging and addressing people’s fear of retaliation.

One strategy for preventing retaliation, and addressing the fear of retaliation, is for institutions to create individualized anti-retaliation plans as part of their broader anti-retaliation policy (see Boxes 1-1 and 1-2). Such individualized anti-retaliation plans offer proactive measures to deter and prevent retaliation from taking place, serving as one of many supportive measures that could give an otherwise reluctant reporter relevant information and empower them to disclose sexual harassment and/or seek supportive services. The plans can also provide protections for individuals accused of misconduct, particularly while the complaint process is underway, by making arrangements to remove or distance them from decisions or situations that involve the reporter, thereby decreasing opportunities for retaliation or the appearance of retaliation to occur.

Given that higher education institutions already typically have a standard anti-retaliation policy, individualized anti-retaliation plans serve as another proactive resource in an institution’s overall efforts to reduce harm and create environments that prevent sexual harassment. Specifically, an institution can demonstrate transparency and show support by (1) illustrating specific circumstances of retaliation; (2)

demonstrating how individualized anti-retaliation plans, in conjugation with the institution’s broader anti-retaliation policy, can help address various forms of retaliation; and (3) regularly communicating these forms of action and response to the community.