Universities are hotbeds of intrigue when it comes to employment law

By Howard Levitt and Robert Taylor

Unless complaints are handled properly, the process can be as bad as the punishment

Most people have an image of universities as hallowed ivy-covered institutions inhabited by learned professors and eager students, all engaged in the noble pursuit of higher education.

For some of our clients, nothing could be further from the truth.

Instead, they find universities to be cesspools of intrigue and jealousy, where alleged violations of “safe spaces” lead to “triggered” grievances and claims of inflated injuries by complainants with a febrile need of the to see alleged offenders punished severely. Unless handled properly, the process can be as bad as the punishment.

We have represented members of universities who have had complaints filed against them, followed by investigations, followed by disciplinary actions that can have significant adverse effects on their careers. Professors, for example, could lose tenure or their jobs. The stakes are high.

Most people think that, if a complaint is made against them, they have no options and must meekly follow the university’s directions. That is simply not true.

The law called “natural justice” provides you with various rights and protections, such as being entitled to know the details of the complaint (even if the identity of the complainant is kept secret — ostensibly to protect against retaliation, though often it is obvious who has made a complaint) and the right to prepare a response and be heard.

There are additional protections you may enjoy. Many, if not most, universities have a plethora of internal rules and regulations that pertain to situations where a complaint has been made.

And some of them provide protection if you are the target of a complaint. Therefore, you need to consult the university’s internal rules and regulations immediately. Some may require substantive pre-conditions, such as that the responsible university official to whom the complaint has been made must be satisfied that valid grounds exist for disciplinary action before an investigation is launched. In other words, a complaint can’t be rubber stamped and an investigation automatically launched. Some complaints can be unbelievably petty. They need to be identified and dismissed before an investigation is launched. Some require that a definite procedure be followed. And it must be followed to the letter. Steps cannot be missed or ignored.

If you have been the target of a complaint, you are entitled to know the particulars of the complaint such as the date and time of the alleged incident and what it is alleged you did. And you should resist submitting to an investigation until you have full particulars. You may be able to avoid an investigation (even after it has been ordered and commenced) and disembowel the entire complaint and disciplinary process.

If that isn’t possible or it is too late to do so, you may enjoy other protections. One is “academic freedom,” which allows members the right to express their views even if they might offend the existing political climate. Another is your right to insist that the university comply with its own policies. You might be surprised how often university administrators don’t know or don’t follow their own policies. Another is the right to an independent investigator. You might again be surprised how often investigators chosen by the university are not truly independent.

Some universities offer reimbursement for the legal fees incurred by a member who has been successful in responding to a complaint (although you may have to sue to recover them).

Our advice is:

1. If you are the target of a complaint, consult a lawyer experienced in such matters. Even if there is a faculty association ostensibly there to represent you, we suggest getting outside advice — in our experience some faculty associations are helpful, but others are totally ineffective.

2. Locate and familiarize yourself with the university’s rules and regulations relating to complaints and discipline and any codes that provide you protection such as “academic freedom.”

3. Prepare a detailed chronology of the events for your lawyer.

4. Launch a forceful response as soon as you can. It is important to derail a flawed process early on before it gains its own momentum.