04-07-2020
Imagine you are a newly appointed Director of Human Resources (HR) or the Dean of Student Affairs at your institution, and a complaint comes across your desk alleging sexual misconduct.[1] Upon reviewing the allegations and your institution’s policies and procedures, you feel it’s time to hire an external investigator.[2] How do you identify the best person for the job?
Title IX Application
Title IX of the Education Amendments of 1972 (Title IX) is a well-known federal civil rights law prohibiting discrimination on the basis of sex in educational programs and activities by institutions that receive federal financial assistance from the U.S. Department of Education (Department), and sexual misconduct may constitute discrimination prohibited by Title IX. Therefore, when a school[3] knows or reasonably should know of any incident of sexual misconduct, personnel must take immediate steps to understand what occurred (i.e., whether a hostile environment based on sex exists), and respond appropriately.
Fortunately, the Department has issued extensive policy guidance to the public, and a good amount of federal case law exists concerning Title IX’s application. This means very prescriptive information is available regarding appropriate Title IX enforcement. However, the guidance has constantly evolved over the last twenty years, and courts have been split. In light of the visibility of the #MeToo Movement, new legal requirements in certain states (in addition to existing federal law), and an increase in private litigation, Title IX has become a very hot topic. This heightened scrutiny means that educational institutions must be extremely diligent when selecting those responsible for investigating sexual misconduct claims, often seeking counsel from legal staff and/or consultants with extensive Title IX expertise.
Seeking the Quintessential Title IX Investigator
Title IX work, including conducting investigations, is not for the faint of heart. Consultant qualifications are extensively vetted at Employment Practices Solutions (EPS), and a variety of paths might lead to pursuing a career involving Title IX investigations. Anecdotally speaking, some people simply “fall” into this line of work based on chance and circumstances. For example, some investigators encountered a Title IX matter at some point due to their extensive legal backgrounds, did a solid job on their first try, and received the next two, three, and then thirteen cases. Some investigators have had lengthy careers in higher education, gaining experience with Title IX-related issues during their school tenure, and then leveraged their broad knowledge to do Title IX investigations. Some investigators have indicated that their experience as former college athletes and their general understanding of how Title IX is implemented bolstered their investigation credentials. Clearly, there are a number of pathways to becoming a Title IX Investigator, none of which are “set in stone.” However, commonalities exist among those investigators who are repeatedly effective and efficient, consistently producing high quality work product. An ability to identify the commonly shared attributes of the best investigators can be of great value to a university and its campus community at large.
The right Google search will provide a plethora of articles about the legal requirements educational institutions must meet in order to appropriately respond to sexual misconduct claims in accordance with applicable law - typically based on the author’s interpretation of Title IX and its policy guidance. Lists of the “best qualities” of a good Title IX Investigator abound. However, we find many of these “best qualities” are often very general, such as: “A school should hire an investigator who: pays attention to detail, is an active listener, is highly organized, has experience conducting complex investigations, is a quick learner, etc.” While these general qualities are likely beneficial for any investigator’s toolkit, there are lesser discussed considerations which are arguably even more critical.
Regardless of how a person arrives at their Title IX Investigator career destination, a mastery of the attributes identified below will help to set an investigator apart from peers in the field. The following list of ideal qualities is based upon insights from well over a decade of my “boots on the ground” experience with both conducting and overseeing Title IX investigations at various institutions. In a nutshell, the key qualities to look for in selecting an external investigator who understands the complexities surrounding a sexual misconduct investigation are a diverse background, congeniality, and empathy.
Diverse Background. The phrase “diverse background” can be meaningful in different ways to different people, so the excerpt below from Dictionary.com is used to provide context.
Diverse: Of various kinds or forms; multiform.
Background: One’s origin, education, experience, etc., in relation to one’s present character, status, etc.
Frequently, individuals envision diversity only in terms of race or sex, and while those attributes can contribute to a person’s diverse background, the diversity we contemplate here is much broader. When a Title IX Investigator’s diverse background consists of a variety of life and work experiences, this is particularly valuable to the investigative process. Unfortunately, anyone can land in a situation where he or she feels discriminated against on the basis of sex, or otherwise believes some type of sexual misconduct violation was perpetrated. This increases the likelihood that an external investigator will regularly interact with heterogeneous populations in various locations. An understanding and appreciation of education, race, sex/gender, sexual orientation, age, religion, previous traumatic experiences, culture, etc.—can affect the dynamics of an investigation. A diverse background has a tendency to increase an investigator’s relatability and adaptability during the investigative process.
Congeniality. (Yes, like the movie.) Diversity is important, but the Title IX Investigator must be congenial when engaging investigation participants. Congeniality does not mean there is an expectation for an investigator to function as a cheerful social butterfly, but it would be extremely difficult for the investigator to establish meaningful rapport if the investigator lacks the temperament to do so. Establishing rapport with persons involved in the investigation is essential for effective communication. Without congeniality, an external investigator will struggle with diffusing any potential disagreements and determining the facts at hand, due to the investigator’s inability to provide assurance to interviewees during personal and intimate conversations about a case.
Empathy, Empathy, and More Empathy. Building on the previous two traits, an innate ability to show empathy for the circumstances of others allows an already diverse and congenial investigator to separate personal emotion from the objective fact-finding that is the focus of the investigator’s work.
This is not a suggestion that one should conduct an investigation of sexual misconduct without sensitivity. We note this important distinction as a number of individuals use the terms empathy and sympathy interchangeably. For clarification, Dictionary.com defines empathy as “the psychological identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another.” In simpler terms, empathy is demonstrated when a person puts himself or herself in the shoes of the person with whom he or she is interacting. Sympathy as defined by Dictionary.com is “harmony or agreement in feeling…”
A truly skilled investigator offers a neutral perspective and does not exhibit partiality or share opinions and belief systems with involved parties. Individuals who have mastered the art of empathy while performing Title IX investigative duties recognize the correlation between exhibiting sincerity and compassion throughout every step of the investigative process, while maintaining neutrality. They are organized, but flexible; friendly, but firm; detailed, but able to see the bigger picture.
Institutional Strategies Matter
The three aforementioned ideal investigator attributes are extremely challenging for an investigator to learn and develop, unless the person is genuinely interested in others, truly open to receiving constructive feedback, and actively working on developing and honing those skills. However, the good news is that when selecting an investigator, there are steps school personnel can proactively take in assessing these attributes. It is empowering to know your institution has the capability of facilitating a successful investigative process. There are three guidelines to implement before bringing the investigator on board: know your campus environment; have clear policies, procedures, and practices; and, establish clear lines of communication among involved faculty and staff.
Know Your Campus Environment. Title IX guidance indicates that a school’s campus environment is an important factor when determining whether or not a violation has occurred or is occurring.[4] Hence, it is useful for school personnel to have a heightened awareness of the campus climate. University faculty and staff are generally in the best position to make an educated guess about how an outside person might interact with the campus culture, and may assist in ensuring the investigator is fully informed. More importantly, administrators, in particular, are privy to invaluable information for the investigator, such as locations with a higher number of historical discrimination reports, well-lit areas versus those that are not, community norms, and any existence of a potential for conflict to occur (among staff, students, or otherwise). Informing the external investigator about the unique dynamics of your campus can be particularly useful to assist with proper planning and preparation.
Have Clear Policies, Procedures, and Practices. Title IX requires that all federal funding recipients adopt a policy containing grievance procedures for individuals who wish to file a complaint alleging sex discrimination. While grievance procedures as part of the school’s Title IX/Sexual Misconduct Policy provide a good foundation for the investigator, generally there are specifics of the Title IX investigative process that will not be addressed in formal policies and procedures. Additional information might include the university’s practices with regard to: levels of internal review (i.e., who reviews and approves work product at each step of the investigation), evidence collection (e.g., Does the university use cloud based software like Microsoft Teams to which the investigator will have temporary access in order to upload documentation obtained during the investigative process?), and the proper chain of command in the event the investigator has a conflict with an involved person and intervention is necessary (e.g., a participating member of the school staff or a student witness exhibits microaggressions during interactions with investigator, or the complainant threatens the investigator, etc.). Reviewing, and revising if necessary, applicable current policies, procedures, and practices, provides the external investigator with a blueprint for the university’s exact expectations regarding work product and otherwise. As a result, the school’s environment is optimized for the external investigator to work more efficiently.
Establish Clear Lines of Communication Among Involved Faculty and Staff. Knowing your campus and having clear policies, procedures, and practices might very well be ineffective if college personnel are unable to communicate clearly with the investigator and/or among themselves. Miscommunication (including a lack of communication) creates confusion, which can lead to decreased efficiency in case processing. It is imperative to have uniform discussions among all faculty and staff with any level of involvement in the process to ensure they are all on board and clearly understand their roles in the process before hiring your Title IX investigator. There are many nuances when it comes to conducting sexual misconduct investigations, and the work can be emotionally draining for all participants. Clear and open communication in a collegial environment of mutual respect will always be welcomed by any investigator, and will create an atmosphere to encourage the investigator to perform at their highest level for the school.
The Path to Success
In summary, while not an exact science, the practical tips discussed above were crafted based upon years of observation and expertise in conducting a wide range of investigations involving allegations of sexual misconduct and other forms of discrimination. Those in positions of authority (e.g., General Counsel, HR Directors, Title IX Coordinators, etc.) may find this information helpful as they navigate the inherent challenges of these types of investigations, and select the individuals best suited for completing them at their schools. Being empowered to choose an investigator suited to the specific needs of an institution, and cultivating and encouraging an atmosphere of transparency, clarity, and respect, is a win for everyone.