You’ve Been Named in a Discrimination Complaint. Now What?

The bad news comes in an email.

Notification of Formal Complaint [Against You]: Alleged Violation Under [Your Institution’s] Nondiscrimination Policy

Is this a mistake? Spam? Or a real complaint? Your mind races: Was it the second-year student who didn’t laugh at your jokes (and got a C-minus), the committee member who called your suggestions “classist” or the department chair who distrusts you because of your friendship with their predecessor? Or, maybe, is there evidence that your conduct against someone else violated your institution’s nondiscrimination policy?

For faculty, being the one investigated may feel particularly jarring: Accustomed to being the expert in their chosen field, they now find themselves on unfamiliar terrain. What are they saying about me? Why are they doing this to me? Am I going to lose my job over this? Even if the allegations are unsupported by evidence, faculty may end up marshaling a defense with time they would have ordinarily devoted to research, teaching or service. Work during and after an investigation may suffer from distraction, and relationships with colleagues (who tend to be witnesses) are often impacted, irrespective of whether there is a finding of a violation.

As a civil rights investigator in higher education, I have seen how disorienting it can be for faculty to learn they have been named as a respondent in a discrimination complaint. While institutional guidance provides a baseline as to rights, responsibilities and options, it cannot prepare faculty for the challenges that fall outside the lines of policy and process. Accordingly, here are six tips for a faculty respondent, or for faculty who might, one day, become one.

1. Know that the investigator (and the investigation) is not the enemy. An allegation alone is not a punishment, but it can feel like one for faculty. In some circumstances, they are placed on paid administrative leave pending the results of a civil rights investigation; in others, a no-contact directive is established between the complaining and responding party. Though such interim measures, when imposed, protect the integrity of the investigative process, some faculty assume they mean that the institutional deck is stacked against them, and that the investigator reached conclusions before the respondent has even had a chance to respond.

This assumption misunderstands the investigator’s role.

The investigator is neither the complainant’s advocate nor the respondent’s adversary, but a fact finder who collects evidence, reviews it and organizes it into a clear record. In fact, there are times when the report the investigator writes aligns with the respondent’s account of events and may later inform the institution’s formal position on the matter. The investigator’s work is guided by evidence, not allegiance; they do not seek out a particular result.

2. Read the allegations and read the policy. Is it patronizing to tell a professor to read? Yes, but it is necessary when the stakes are so high and the emotions are so charged. While institutions vary in how they word a Notification of Formal Complaint, the notice will likely apprise a faculty respondent of the specific policy they are alleged to have violated. Respondents should understand what the policy prohibits and provide evidence explicitly responsive to the policy.
3. Know the complications of “the lawyer question.” Some faculty respondents ask whether their institution will hire a lawyer for them, or if the institution’s Office of General Counsel will represent them. Generally, the answers to these questions are no. That said, many institutions will allow parties to have an attorney join them (and participate, to varying degrees) at meetings and/or hearings. Because the discrimination complaint process is dictated by policy and evidentiary standards distinct from those of civil and criminal courts, parties should feel comfortable asking their intended counsel direct, practical questions about how they will navigate this institution’s procedures. For instance: Will there be a hearing? (Some institutions have hearings for discrimination matters, while others do not.) And: Does not participating in this thing make me “guilty”? (Some institutions do not presume that the respondent’s nonparticipation in the process implies responsibility, while others require respondents to participate in investigations or face disciplinary consequences.) If faculty have done their own reading of the allegations and policy, they will be prepared to choose informed counsel to help them navigate the quasi-judicial idiosyncrasies of the process ahead of them.

4. Know how your conduct during (and before) an investigation can be perceived. Under current Equal Employment Opportunity Commission guidance, “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.”

For faculty, such guidance should be simultaneously pacifying and unsettling. The issue for faculty respondents (and faculty who might become respondents) is that “petty slights, annoyances, and isolated incidents” can be perceived by the person subjected to them as evidence of discrimination even if they “will not rise to the level of illegality” or, for that matter, a violation of policy. Faculty should be acutely aware of the status of their relationships with other faculty, administrators, staff and students. If there is any kind of damage or discomfort, for whatever reason, it is wise to explore efforts at remediating (with the help of a third-party facilitator like an ombuds, human resources officer or other campus resource) before the issues calcify into a discrimination complaint.

5. Know how your institution defines retaliation. One of the most common ways a faculty respondent engages in retaliation is by taking an action against the complainant because they filed a discrimination complaint: “Hey, I didn’t remove them from this super-important committee because they complained. I removed them because they didn’t attend the meetings!” a particular faculty respondent might say in defense. Even if the complainant did not attend the meetings, perception matters as to the timing of their removal. In other words, actions that would have appeared legitimate before a complaint may assume a different appearance after a complaint has been filed.

Before a faculty respondent takes action that could plausibly be interpreted as a direct response to the complaint, they should consult policy and seek guidance from stakeholders who are sensitive to the institutional and business-needs context of the intended action.

6. Know that you might become a complainant. The mission of an institution’s nondiscrimination policy is to keep each member of the community safe from discrimination, harassment and retaliation. Today’s respondent can become tomorrow’s complainant or witness, and vice versa, especially in fractured academic departments where professional and personal grievances overlap. However, no matter how they get involved in an investigation, faculty who learn how policy, process and perception intersect gain a rare strength that eludes less well-versed parties: knowledge of what will (and might) come next, even when the outcome is out of their hands.