Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators risk management podcast. Today’s podcast, Employee-on-Student Sexual Misconduct in Higher Education, is hosted by Joanne Dunlap, who is the Risk Programs Researcher for United Educators’ Risk Management department. Joanne is joined by UE colleague Hillary Pettegrew, Senior Risk Management Counsel, to discuss lessons learned from higher ed claims involving alleged sexual misconduct by employees against students.

A reminder to listeners that you could find other UE podcasts, as well as UE risk management resources, on our website, www.ue.org. Our podcasts are also available on Apple Podcast and Spotify.

Now, here’s Joanne.

Joanne Dunlap: So great to have you join me today, Hillary.

Hillary Pettegrew: Thanks, Joanne. I’m happy to be here.

Dunlap: Hillary, you recently completed a claim study reviewing employee-on-student sexual misconduct claims in higher education over a seven-year period. Why did you choose to focus on this area of risk?

Pettegrew: Well, for at least the last 10 years or so, sexual harassment and sexual assault between students at higher education institutions has really taken the lead in public discussion and media coverage, not to mention the government’s attention, as three successive presidential administrations now have each made changes to the Title IX enforcement scheme. And UE has certainly focused a lot of our effort on creating resources to help manage those risks.

But several high-profile matters involving allegations of sexual misconduct by higher ed employees against students were, I think, important reminders to us all that student-on-student claims are not the only risk we have to consider in this arena.

Dunlap: Yes, absolutely. So what did you find most surprising from your research?

Pettegrew: I would say it was probably the role of faculty. Faculty were the most frequently accused category of employees. They made up 59% of that group. Now, that in itself didn’t really surprise me, as it’s generally consistent with past claim reviews and what we tend to hear anecdotally from our members.

I was rather surprised, however, that almost 30% of the alleged faculty perpetrators were accused of serial perpetration, meaning they were accused of committing sexual harassment, including sexual assault, against multiple students at different times.

In addition, adjunct faculty, which we define for purposes of the study as part-time faculty hired to teach on a contract basis, played a significant role.

Nearly one quarter or 23% of all alleged faculty perpetrators were, in fact, adjuncts.

Dunlap: Hillary, that’s such an interesting point about adjunct faculty. Do you have any insights on this?

Pettegrew: While this isn’t true of every college or university that employs adjunct faculty of course, the claims involving alleged harassment by adjuncts in this study tended to have some common characteristics that to me indicate their institutions didn’t hold them to the same standards as permanent faculty.

For example, adjuncts sometimes did not undergo pre-hire background checks, were not given formal performance evaluations, or weren’t required to take the same training, including harassment prevention training, as other faculty.

Those factors are problematic, and I suspect are likely the major reason we saw a significant number of sexual misconduct claims against adjuncts in this study.

Dunlap: Well, sexual misconduct allegations can range widely in scope. What were the main theories of liability that drove the claims you reviewed?

Pettegrew: It was interesting to me, Joanne, that the most common theory of liability we saw was negligence. In this study, the negligence theory primarily took the form of claims that an institution was negligent in hiring, retaining, or supervising the alleged perpetrator as opposed to, for example, claims that a school conducted a negligent investigation of a student’s allegations.

That theory was followed closely by allegations of Title IX violations, although most students who alleged Title IX violations also alleged negligence of the kind I just described.

In third place came claims that the alleged perpetrator committed sexual assault – or assault and battery – for which the college or university was liable.

And then less common than those three in descending order were allegations of intentional infliction of emotional distress, followed by retaliation, breach of contract, and finally, violations of state laws such as laws prohibiting discrimination generally, or laws forbidding sexual harassment of students by school employees specifically.

Dunlap: Given these findings, what are the lessons learned? What should institutions be focusing on to help mitigate risk of this nature and the associated liability in the future?

Pettegrew: The study outlines multiple lessons, but today I’ll just highlight two broad categories of lessons that I think are especially important because they’re perennial issues we find for UE members.

The first involves training. Now that generated multiple lessons, but today I’d like to flag the ones relating to an institution’s consensual relationships policy and to making sure all employees understand they’re subject to the same behavioral rules.

Different institutions have different policies governing consensual relationships between employees and students, and it’s critical to make sure all your employees understand whatever your rules are, as well as the potential consequences of violating them.

At UE, we see claims where a relationship between a student and an employee began or allegedly began as consensual, but ended badly with the student claiming they were pressured or even coerced into the relationship and arguing the institution as the employer is then liable for sexual harassment.

So if, like many schools, you ban all sexual relationships between employees and students, making that crystal clear during employee training, along with your willingness to enforce your policy when you learn of a possible violation, can definitely help reduce or mitigate this type of claim.

In addition, I think it’s important to emphasize during training that all employees are subject to the same rules. You want to avoid a situation where certain employees, such as high-ranking administrators, prominent coaches, or well-known faculty members are perceived to be getting a “pass” in the form of lesser punishment or perhaps no punishment at all, than would be imposed on lower-ranking employees for similar misconduct.

So in your training, we recommend making clear that policies prohibiting an employee’s sexual harassment of a student will apply to all employees regardless of their position. And then, of course, if and when such a claim arises, you should be prepared to back up your promise.

Dunlap: Hillary, that’s such an excellent point that no matter the status of the employee, everyone should be treated equally. You mentioned another group of lessons.

Pettegrew: Yes. The second group of lessons I’d like to highlight involves problematic documentation.

Now, Joanne, you did an excellent podcast that was released in March 2023 discussing the topic of documentation with several of our resolutions attorneys. So I imagine you can really appreciate this one.

Dunlap: Oh, well, thank you, Hillary, and yes indeed.

Pettegrew: So in this study, lack of documentation came up repeatedly and in various ways, including failure to document all interactions with students who alleged employee misconduct, failure to document what was done in every investigation, especially those where one party or sometimes both left the institution before the investigation was completed, and, finally, failure to adequately document employee discipline.

These failures can create multiple problems, but the most serious is probably a lack of evidence about its actions that an institution can point to about what it did and why if either a student or an employee who was disciplined later pursues a claim against the school.

Dunlap: Since faculty featured so prominently in this study, do you have any special training tips for them?

Pettegrew: Well, it’s been UE’s experience that our members typically find faculty the most difficult group of employees to train, in part because they often resist the very word “training.” As a result, how it’s presented to them can be particularly important. And in conjunction with the study, we created a resource titled Training Faculty on Sexual Misconduct. It offers some practical tips on getting faculty to participate in training and creating effective content when they do. For example, one suggestion is to use an in-person workshop approach centered around case scenarios that faculty can discuss and debate.

Dunlap: Hillary, what would you say are your key takeaways after working on this claim study?

Pettegrew: I think the role of faculty as alleged perpetrators in general is very concerning, and it merits a close look from our higher ed member institutions to consider how the study’s findings compare to their own campus experience. Of course, limited campus resources should go where they’re most needed, so if a particular college or university has relatively few recent complaints or allegations made against faculty members, but a significant number made against, say, employees in the athletics or security departments, then it should focus its anti-harassment prevention training efforts accordingly.

But for schools that do see a pattern on their own campus, similar to the one UE found, I hope the lessons specifically relating to faculty will resonate and be helpful.

In that regard, of course, we just discussed the role of adjunct faculty and what UE saw in this study suggests that colleges and universities that treat their permanent and adjunct faculty differently in certain fundamental ways such as imposing very different sexual misconduct training requirements, might want to review their approach.

Such practices, I suspect, may not be tenable in the long term, especially as many higher education institutions increasingly turn to adjuncts as a more cost-effective teaching option.

Dunlap:Well, that’s our podcast for today. You can find the claim study, which is titled Lessons From Claims: Higher Ed Employee-on-Student Sexual Harassment and Assault, and the related resource Hillary mentioned, Training Faculty on Sexual Misconduct, on our website, www.ue.org, under the Employee Sexual Misconduct Higher Ed Resource Collection landing page.

Thanks so much for your time and valuable insights, Hillary.

Pettegrew: Thank you, Joanne.

Host: From United Educators insurance, this is the Prevention and Protection Podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.