We all know how important it is for responsible employees in educational institutions to report up the chain when they learn of sexual misconduct against a student. But the stakes for noncompliance just grew in Texas, where lawmakers recently passed legislation allowing jail time in addition to institutional penalties for responsible employees who fail to report as required by law. It seems like a good reason for a refresher on the rules for responsible employees and some tips for how to foster compliance at your institution, don’t you think?
Who is a Responsible Employee Under Title IX?
Longstanding guidance from the Department of Education’s Office for Civil Rights define and set forth responsibilities for a responsible employee, unless and until the Department finalizes pending rules that, as proposed, would jettison the concept almost entirely.
Currently, a responsible employee includes:
- Any employee who has the authority to take action to redress the harassment;
- Any employee who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees; and
- An individual who a student could reasonably believe has this authority or responsibility.
In the K-12 realm, that final “catchall” provision could mean basically any employee of the school, at least in the context of younger students who reasonably may not know where authority lies. Things are more nuanced in the higher education realm. As OCR explained in now “archived” (but still useful) guidance in 2014, “while it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the authority or responsibility to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.”
What Must a Responsible Employee Do?
OCR requires schools to investigate and respond to confirmed sex-based misconduct about which a responsible employee “knew, or in the exercise of reasonable care should have known.” Accordingly, a responsible employee must report up the chain, preferably to the school’s Title IX coordinator directly, if and when the employee learns of any alleged sexual misconduct. This includes not only misconduct that is described to or witnessed by the employee. The “should have known” language means the employee also must know what indirect indicia should trigger an investigation that would lead to the discovery of sexual misconduct. Most colleges and universities have a complex system under which certain employees (counselors, advocates) are confidential reporters, others are responsible employees, and others are off the hook.
What Has Texas Done?
Under the new Texas law, failure to properly report a required claim is a Class B misdemeanor and can lead to up to 180 days in jail and a $2,000 fine. Intentional withholding of a report raises the consequences to a Class A misdemeanor, a maximum $4,000 fine, and one year in jail.
What Should My Institution Do?
The concerns with overbroad reporting requirements for school employees have been raised many times before, and I certainly heard them when I worked at OCR. But until the law is changed, it is imperative that responsible employees know and properly discharge their responsibilities under the law, whether they are in Texas or elsewhere.
Some ideas for steps to take to ensure your responsible employees are aware of their responsibilities:
- Notify employees of what category they fall into early and often. Forwarding updates (even this one!) to staff on a regular basis can be a helpful refresher for them and can prompt confused individuals to reach out to you for help before they make a mistake.
- Notify students about the categories, as well. Particularly in the higher education realm, student awareness is key so that individuals know what types of reports—and to whom—will lead to contact with the Title IX office.
- Provide mind-numbing computer-based engaging training not only on reporting requirements but also on how to deal with faculty and staff concerns about violating student trust. For instance, role-play how to warn a student before they share details with a teacher or professor that a report will have to be made. Our office can assist you with all of your Title IX training needs; contact me for more information.