November 2010 Issue Essential Policies for your Employee Handbook

By: Melissa Fleischer, Esq.

What a tragic incident that occurred at Rutgers University recently.  A freshman at the University, Tyler Clementi, jumped to his death off the George Washington Bridge after realizing that his roommate allegedly posted webcam pictures on the internet of  Clementi having sex with another male.-  There are currently invasion of privacy charges pending against the roommate and another student who allegedly assisted him. 

Hopefully, out of such a tragic accident some good can come.  One of the positive things that has come so far is that a US Senator, Frank Lautenberg has announced that he plans to introduce a bill that would mandate that all colleges and universities have Anti-Harassment Policies in place.  Apparently the pending legislation would also establish funding for colleges to institute programs that would help prevent harassment of gay students. 

There is currently no such federal law  However, as a result of two significant US Supreme Court cases, Farragher and Ellerth in 1998, most universities and colleges already have Anti-Harassment Policies in place. These cases set forth a valuable affirmative defense that employers can avail themselves of if they can show that they have "exercised reasonable care to prevent and promptly correct any harassment" and if they can also show that "the alleged victim unreasonably failed to complain about the harassment".   These policies usually prohibit all types of harassment including harassment of students by professors or staff, harassment of professors or staff by students, harassment of students by other students and harassment of staff or professors by other staff members or professors.  So although not required to have these policies by any federal law, most colleges have such policies in order to protect the institution from liability for harassment. 

There are currently only a very few state laws that require by law that employers including colleges have anti-harassment policies and provide anti-harassment training.  However, unfortunately merely having a sexual harassment policy is not enough.  Colleges and Universities need to provide training to management on that policy including the correct members of management to report any complaints of harassment.  It is not clear whether the RA's to whom Mr. Clementi complained about his roommate's harassment, followed up by reporting the harassment to the appropriate members of management such as HR.  If this did happen, then HR should have conducted a prompt thorough investigation into the incident and provided Mr. Clementi with the results of that investigation.  Mr. Clementi would have been protected after making this complaint from any retaliation for making the complaint, including retaliation from his roommate or the other student.  Following the investigation, if it was determined that Rutgers' Anti-Harassment Policy was violated, then the University could have taken prompt corrective action including disciplinary action against the students who violated the policy.

Clearly Universities and Colleges have the ability to control harassment on their campuses.  However, they have to go further than just having a policy.  Hopefully,  other Universities and Colleges can learn from this and ensure that in addition to having a well-drafted strong Anti-Harassment Policy, they also provide training to management and students on the policy and help to ensure that the policy is enforced throughout their entire campus.

Submitted By:

Melissa Fleischer, Esq.

President and Founder

HR Learning Center LLC

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914-417-1715

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