Tag: harassment

  • Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Evidence suggests that significant numbers of students experience or are affected by harassment and sexual misconduct each year. Yet student complaints to the Office of the Independent Adjudicator (OIA) about harassment and sexual misconduct have historically formed a very small proportion of our overall caseload.

    The number of complaints about harassment and sexual misconduct we have received has been rising slowly but steadily in recent months. This may in part be a result of greater visibility at providers about mechanisms to disclose, such as “report and support” tools. This is a positive step, but there is more to be done to raise students’ confidence in how their providers can respond to reports.

    Today we have published ten case summaries and a casework note on harassment and sexual misconduct, highlighting some key issues for providers to consider when addressing complaints. Although these examples focus on sexual misconduct, the broad principles of good practice can apply across other forms of harassment.

    Taking reports seriously

    Our recent casework shows that some providers are demonstrating, via the disciplinary action they take against students reported for harassment and sexual misconduct, how seriously they view breaches of their codes of conduct. We’ve seen providers taking swift action to investigate, make findings and apply penalties. In some cases, we have seen well-reasoned and documented decisions and clearly explained outcomes.

    However, we have upheld a high proportion of the complaints we have reviewed about harassment and sexual misconduct. We have identified procedural errors and unfairness that have significantly undermined the value of the process for reporting students, and the validity of findings made against reported students.

    Overall, providers seem to have more confidence in addressing the disciplinary aspect of these complaints. Disciplinary processes are usually well established and are supported by guidance and tools such as classification of the severity of any breaches of a code of conduct and accompanying tariffs of penalties.

    There is less certainty and consistency of approach across the sector in responding to the reporting student. There may be fine nuances between a disclosure, a report or a complaint about harassment and sexual misconduct, and the manner of response to each might be slightly different. Many providers intend to be led by the reporting student’s needs, which is an admirable principle – but not always effective if the student has not been clearly informed about the options available to them and the differences between these routes.

    Sharing an outcome

    In several cases, providers haven’t understood that informing a reporting student that a disciplinary process has taken place is not a complete outcome.

    Providers need to consider how they can support students and lessen the impact upon them of the harassment or sexual misconduct they have experienced. This is especially important when the report concerns the conduct of a member of staff. In our experience, providers have tended to be more transparent about incidents between two students than they have been when a member of staff is involved.

    While providers have particular responsibilities to their employees that may be different to the obligations they have towards students, the imbalance of power makes it even more important that students understand how their complaint has been investigated and what will happen next.

    Gathering and probing evidence

    We recognise that complaints about harassment and sexual misconduct are often complex, and may involve events that unfold over a period of time, multiple incidents or involve numerous individuals. There can be constraints because of concurrent police action, which may not result in a clear outcome for several months. Cases may involve claims and counter-complaints, or turn on the credibility of the parties on nuanced issues such as consent.

    Our experience suggests that in some cases, decision makers have not fully understood the importance of moving carefully through a process that genuinely gives all parties an opportunity to tell their own story and allows for gaps and inconsistencies to be explored. It is right that all parties in these processes must be treated with respect, with kindness, and with an awareness of the impact that re-visiting an experience of harassment or sexual misconduct may have.

    But panel members who must test evidence appear to feel constrained in asking questions. Trying to re-examine or gather additional evidence at a later date can place an undue burden on all parties and prevent individuals from moving forward.

    Consultation on a new section of the Good Practice Framework

    The increased focus on tackling harassment and sexual misconduct across the sector – including the new E6 OfS regulatory condition that applies to some of the providers in our membership – is to be welcomed. The emphasis on clear information that is easy to access, and on well-resourced training for both staff and students may go some way to addressing some issues we have seen in complaints.

    In 2025, we will consult on a new section of the Good Practice Framework addressing these complex issues. It will build on the learning we have identified from our rising volume of casework. Our intention will be to draw together in one place the principles that apply to complaints about harassment and misconduct.

    We look forward to engaging with the sector to benefit from the extensive expertise of hands-on practitioners, to make this as useful a resource as possible. If you’d like to feed in at an early stage, please get in touch with us at [email protected].

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  • Collaboration is key when it comes to addressing harassment and sexual misconduct

    Collaboration is key when it comes to addressing harassment and sexual misconduct

    In all of the noise about the OfS’s new regulation on harassment and sexual misconduct there’s one area where the silence is notable and disappointing – sector collaboration.

    Back in 2022, the independent evaluation of the OfS statement of expectations on harassment and sexual misconduct made a clear recommendation that OfS and DfE “foster more effective partnership working“ both between HE providers and with those external to the sector. Now, having published details of the new condition E6 and the accompanying guidance, this seems to have been largely forgotten.

    There’s a nod to the potential benefit of collaboration in OfS’s analysis of consultation responses, but it only goes as far as to say that providers “may wish to identify collective steps” – with little explanation of what this could look like and no intention or commitment to proactively support this.

    This feels like a significant oversight, and one that is disappointing to say the least. It’s become clear from our work with IHE members that collaboration needs to be front and centre if we have any hope as a sector of delivering in this area. Without it, some providers – especially smaller ones – will not be able to meet the new requirements, creating risk and failing to achieve the consistency of practice and experience that students expect. This feels even more true given the current context of widespread financial insecurity. Any new regulation ought to be presenting mechanisms and incentives to collaborate – and reduce costs in doing so.

    Working together for a stronger sector – or only sometimes?

    The silence around collaboration is also surprising, given that in other spheres it is seen to be – and in many cases is – the solution to institutions meeting regulatory requirements and student expectations. John Blake’s latest speech on a regional approach to access and participation is just one example of this. There is implicit recognition that in this era of “diminishing resources”, working together is the solution. There’s also the recognition that partnership working needs funding – more on that later.

    It’s also surprising given that OfS has made clear that both providers in any academic partnership are responsible for compliance with the new condition, including where there’s a franchise arrangement. This seems like an open door for collaborative approaches, given that over half the providers on the register do not have their own degree awarding powers. However, as usual, it is unclear what this means in practice. There is no reference in the regulation to how the OfS would view any collaborative efforts, or examples of what this might look like in practice.

    Academic partnerships make logical collaborators

    IHE’s recent project on academic partnerships demonstrates the potential of such arrangements for collaboration that benefits both providers and their students. Our research found a number of innovative models where awarding institutions facilitated collaboration with and between their academic partners in areas including shared learning opportunities and use of shared platforms.

    There’s a clear opportunity here when it comes to staff training. All institutions need to have staff who are “appropriately trained”. Training in areas such as receiving disclosures and conducting investigations benefits from group delivery – where staff can learn from each other. A small provider might only have one or two staff who require it, meaning they are unlikely to draw much benefit from this. It would also make such training prohibitively expensive. It’s likely to need to be delivered by an external organisation (to ensure the “credible and demonstrable expertise” required) and such solutions aren’t scaled to an institution with just a handful of relevant staff. Awarding institutions sharing such group training would solve this – and also benefit shared processes in that staff across both institutions have the same level of knowledge and competence.

    A further benefit of shared training would be that partners could share staff when investigations need greater independence than a small provider can offer. This could be staff from the awarding partner, or another academic partner. This would effectively bring together useful knowledge of institutional context, policies and processes with the necessary external objectivity to run a credible investigation.

    Another opportunity for collaboration is in shared online reporting tools. These can be an effective way of encouraging disclosure, but such systems are often not scaled for small institutions. As well as being more cost-effective, sharing these could lead to greater confidence of students reporting in the independence of tool and the process that follows.

    Think local – for everyone’s sake!

    Regional or local collaboration is the other area with the potential to benefit students, providers, and other services supporting those who experience harassment or sexual misconduct.

    Local or regional collaboration on reporting and investigation can support disclosure by creating more independence in the system. The independent evaluation spoke specifically of this, recommending the facilitation of

    formal or informal shared services, such as regional support networks, and in particular regional investigation units or hubs.

    And it would enable more effective partnerships with external support services. Rather than every provider trying to establish a partnership with a local service (putting a greater burden on groups who are often charities or not-for-profits), group collaborations could streamline this. This needs to include all types of provider, including small providers and FE colleges delivering HE. This would be more efficient, reduce unhelpful competition for the limited resource of the service, and ensure that all students have access to these support services irrespective of their place of study.

    Where there aren’t local services, providers could pool resource and expertise to develop and deliver these. This would reduce competition for specialist staff in the same geographic location, and again ensure parity of support for students across providers.

    It’s important that such collaborations involve all parts of the sector, including small providers – with the burden of their participation reflective of their smaller size. This is vital to ensure that collaborative models are cost effective for everyone.

    Getting it right on student engagement

    Collaborative approaches are also going to be critical to make sure we get it right on student engagement. The OfS expectation is clear that providers work with students and their representatives to develop policies and procedures. But what happens when an institution doesn’t have an SU, or a formal representative structure, or the necessary experience in student engagement to do this? There’s a risk that it won’t be done properly or be done at all.

    We need to consider how we facilitate students to support each other to engage in co-production. This could include sharing staff or exploring the development of local student union services that bring in smaller providers or FE colleges without the means to partner with students in the way that is needed.

    Making it happen

    The sort of collaboration outlined above will need more than just the goodwill of institutions to make it happen. It needs regulatory backing, with more explicit recognition of the value of these approaches and guidance on what this might look like in practice. We also need to recognise that it’s costly.

    Catalyst funding, like that provided back in 2019, would represent far better value to the sector than asking individual providers to fund collaboration. The risk is that without it, the burden of developing a system that works for all students at all providers will be left to the smallest institutions who need these collaborative options the most. Funding would also boost evaluation and resource sharing across the sector. It could consider the benefits of collaborative approaches between awarding and teaching institutions as well as regional structures which ensure a greater parity of support across providers large and small.

    Somewhere on this path to regulation we lost the perspective that harassment and sexual misconduct is a societal issue. What we do now to educate, prevent harm to and support students will have a lasting impact on the future as students become employees, employers, parents and educators themselves. It is not a task to be shouldered alone.

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  • New Title IX Rule Defines Deepfakes as Sexual Harassment

    New Title IX Rule Defines Deepfakes as Sexual Harassment

    On April 19, 2024, the U.S. Department of Education released updated Title IX Regulations that clarified schools’ ability to raise incidents of harassment using non-consensual, sexually explicit deepfakes through Title IX action. Title IX is a federal law that bars sex discrimination in education programs and applies to all public and private elementary and secondary schools, school districts, colleges, and universities that receive federal funding (hereinafter “schools”) and includes governance over schools’ responses to complaints of sexual harassment or assault.

    What are deepfakes? 

    “Deepfakes” are “multimedia that has either been synthetically created or manipulated using some form of machine or deep learning (artificial intelligence) technology.” Sexually explicit deepfake images can be generated using methods like face-swapping, replacing one person’s face with another’s face, or “undressing” a clothed image to look supposedly nude. Deepfakes and the artificial intelligence technologies that generate them are increasingly sophisticated, harder to detect, and widely accessible by anyone with a computer or smartphone app for little to no cost.

    In the past two years, numerous incidents have occurred in schools with students creating deepfake media of other students or teachers, as well as school staff, creating them of fellow staff for reasons ranging from impersonating teachers to portray offensive messages to sharing sexually explicit images and videos. Educational institutions have been grappling with how to react to advances in AI, and these deepfake incidents have sparked additional concern about how to protect students, staff, and administrators, while also needing to know how to address incidents when they occur. This blog discusses how the recently updated Title IX Rule applies to deepfake incidents and provides four tips for how schools can prepare to respond.

    How might Title IX apply to deepfake incidents in schools? 

    The new Title IX Rule updates the definition of “sexual harassment” to include “the nonconsensual distribution of intimate images” including authentic images and those altered or generated by AI. Existing Title IX protections against harassment apply to actions connected to any school-related programs or activities regardless of whether the harassment occurs on or off campus. That is, even if deepfakes are disseminated outside of school, Title IX requires schools to address off-campus behavior that creates a “hostile environment” in the school. Under the new rule, behavior qualifies as sexual harassment when it is objectively and subjectively offensive and so “severe or pervasive” that it limits or denies a person’s ability to “participate in or benefit from the recipient’s education program or activity.” The previous definition of sexual harassment was more limited by requiring that behavior be “so severe, pervasive, and objectively offensive.” Determining whether behavior has created a hostile environment is fact-specific and Title IX stipulates the following considerations: 

    “(i) The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity; (ii) The type, frequency, and duration of the conduct; (iii) The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; (iv) The location of the conduct and the context in which the conduct occurred; and (v) Other sex-based harassment in the recipient’s education program or activity.”

    Additionally, the updated Title IX Rule modified investigation standards. Now, higher education institutions will have a lower bar for adjudicating guilt that is a “preponderance of the evidence” standard rather than the previous “clear and convincing evidence” standard. Universities will still be able to use the higher standard if it has been used in cases with factually similar circumstances. Primary and secondary schools will continue to have the choice of an informal resolution of complaints if “available and appropriate.”    

    Four Proactive Practices for Educational Institutions

        • Update policies to include deepfakes. Educational institutions should routinely review their policies and procedures and update them as needed to ensure their effectiveness in addressing image-based sexual harassment. These policies should convey how to handle instances of deepfakes created by and/or of students, teachers, or other staff in and outside of school and whether policies differ based on the method of distribution (e.g., sharing on an external site like Instagram versus posting on a school forum, in person, etc.). Sexually explicit deepfakes may be created or distributed using online tools outside of school or using products the school has procured. School districts should evaluate procured products that could be used to create or distribute deepfakes and review agreements with those third-party vendors for compatibility with the districts’ own policies on incident response. Lastly, policies should include defined terms that aren’t overbroad (like banning all “AI”) or underinclusive (like defining “deepfakes” as only still images). 
        • Ensure that Title IX procedures are properly implemented. Schools must recognize that Title IX legal obligations and student protections may apply to sexually explicit deepfake incidents. Title IX requires that schools conduct a “prompt, impartial, and thorough investigation” of sexual harassment complaints and take appropriate steps toward resolution. Title IX investigation procedures and policies must be updated in accordance with the Rule’s new “preponderance of the evidence” standard. Legal obligations can include keeping the identity of complainants confidential, informing complainants about available resources, interviewing complainants in an inappropriate manner, and appropriately pursuing a formal hearing when requested by complainants. School leaders should incorporate the definition and handling of deepfake incidents into Title IX policies and ensure that procedures are in place for staff to respond promptly and effectively.
        • Instruction and training for school staff.  Schools are required to communicate Title IX policies to all students and staff which could include highlighting that non-consensual, sexually explicit deepfakes may qualify as Title IX sexual harassment. Institutions should consider staff training to include responsible technology use, ethical uses of AI (in and out of the school), how it impacts others, and what repercussions exist. Districts can share resources to help inform educators of ways to identify deepfake content (like those from the Department of Homeland Security, MIT, and AI for Education).  
        • Education leaders should ensure that staff are properly trained on requirements under the Family Educational Rights and Privacy Act (FERPA) and how it interacts with Title IX complaints. Title IX investigations typically involve maintaining information that directly relates to a student and is personally identifiable, thus creating a FERPA-covered education record and triggering additional privacy protections. Deepfake incidents have been reported to law enforcement, which victims may do of their own accord. However, it is important to inform staff of when schools can legally disclose information to law enforcement, such as with parental consent, a court order or subpoena, or under a FERPA exception. Title IX requires that the identities of a sexual harassment complainant and the alleged perpetrator are kept confidential unless the disclosure is FERPA permitted, it is required by law, or it is necessary to carry out Title IX purposes. See FPF’s guide for more on Law Enforcement Access to Student Records. 
        • Instruction and training for students. Educational institutions must inform students and/or parents of their Title IX policies and should consider educating students and parents on the ethical, and legal, use of AI. This instruction could take many forms, but it should include (1) the appropriate uses of AI in and out of school, (2) the inappropriate uses of AI that would lead to disciplinary action, (3) the process of disciplinary action, and (4) the negative impact that unethical or illegal use of AI could have on the victim, creator, and the community. Communicating to students the seriousness of misusing AI could help prevent further incidents.

    The updated Title IX rule clarified that schools should evaluate if a sexually explicit deepfake incident qualifies as an issue of sexual harassment. School leaders should also understand that in addition to Title IX, FERPA, state-specific laws, and privacy policies that apply to the sharing of student information may apply to incidents, even when that information is AI-generated. States are increasingly enacting non-education-specific laws to combat the generation or dissemination of sexually explicit deepfakes. For example, Washington State enacted House Bill 1999 this year which expanded the criminal offenses for non-consensual creation or sharing of sexually explicit, fabricated images of an identifiable minor, similar to laws in Virginia, and New York. Educational institutions should stay informed on applicable statutes and be aware that the legal landscape is quickly evolving to combat deepfake incidents. 

    What’s Next? 

    The updated Title IX Rule became effective on August 1, 2024, and applies to any complaints of alleged conduct that occurs on or after that date. As of the effective date, 26 states have filed suits against the law and have been granted injunctions blocking its enforcement. Pushback from the states and other organizations largely stems from the updated rule’s expansion of sex discrimination to include “gender identity,” and it is not yet clear how these legal challenges will affect the future of the updated rule.

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  • EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

    Background

    The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

    Summary of Final Guidance

    The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

    In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

    In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

    In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

    CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.



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  • EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | October 27, 2023

    On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

    The Updated Guidance

    The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

    • Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
    • Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
    • Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

    In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

    Looking Ahead

    The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.



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