Retaliation

Fear of Retaliation

OIE recognizes that individuals may be hesitant to file a report with OIE or to participate in an OIE investigation due to fear of negative consequences from the accused person or others. This fear can be heightened when the power dynamics favor the accused individual over the reporting individual or witness. Both the Sexual Misconduct Policy and Procedures (SMPP) and the Discrimination and Harassment Policy and Procedures (DHPP) strictly prohibit retaliation, using a broad definition to encourage reporting and to deter retaliatory actions:

Retaliation means intimidating, threatening, coercing, harassing, taking adverse employment or educational action against, otherwise discriminating against an individual in any way, and/or interfering with any right or privilege secured by Title IX or its regulations because:

• The individual made a report or complaint under the SMPP or the DHPP;
• The individual participated in any way in the investigation or resolution of an SMPP or DHPP report or complaint;
• The individual opposed conduct that they reasonably believed to be prohibited under the SMPP, DHPP or applicable law regarding discrimination or harassment; or
• The individual exercised any right or responsibility under the DHPP or SMPP.

Retaliation also includes conduct that is reasonably likely to dissuade an individual from:

• Making a complaint or report to OIE;
• Participating in an OIE investigation or resolution or a report; or
• Opposing conduct that they reasonably believe to be prohibited by the SMPP, DHPP or applicable law regarding discrimination or harassment.

Retaliatory conduct does not need to be in-person and can include online communications and activities such as social media.

Anti-Retaliation Plans

OIE is aware that its broad policy prohibition of retaliation may be insufficient to fully reassure someone who fears the impact of specific retaliatory acts.  As a result, OIE additionally develops Anti-Retaliation Plans to proactively address an individual’s specific concerns of retaliation, thereby giving the individual confidence to pursue their report while also deterring potential retaliation.  

Anti-Retaliation Plans are customized to fit the circumstances and relationships involved.  When a reporting party expresses concerns of retaliation, OIE inquires about their specific fears and then works with the parties and relevant individuals to implement solutions.  Below are a few examples where an Anti-Retaliation Plan can help address fears created by a power imbalance between the reporting party and the accused party:

• For a matter involving a student accusing their professor, the retaliation concerns may center around grades.  In that case, the plan may enlist an uninvolved faculty member to grade the student’s work or, if this is not practical, enlist an uninvolved faculty member to review the grades before they are released. 
• For an employee accusing their supervisor, the retaliation concerns may center around negative performance reviews, discipline, or loss of opportunities.   This may be addressed by changing the supervisory structure, at least during the OIE process, or by enlisting Human Resources or a higher-level supervisor to approve all performance reviews, contemplated disciplinary actions, and significant work assignments with respect to the reporting individual. 
• For a junior faculty member accusing a more senior faculty member, the concerns may center around career progression.  An Anti-Retaliation Plan thus may involve establishing that the senior faculty member will not have input into the reporter’s performance evaluations, contract renewals, or tenure application.

As you can imagine, the development and implementation of a successful Anti-Retaliation Plan requires consultation and coordination with individuals who have insight into the responsibilities and interests of both parties.  OIE helps to facilitate the needed collaboration to establish an Anti-Retaliation Plan.  

Notably, the implementation of an Anti-Retaliation Plan is not an assumption or determination that the respondent otherwise would have retaliated.  Instead, the plan provides assurances to the individual who fears retaliation, while protecting the accused party from allegations of retaliation by removing or distancing them from decisions that could result in such a claim.

If concerns of retaliation are preventing you from filing a report with OIE or from participating in an OIE investigation, please contact OIE to discuss your concerns and a potential Anti-Retaliation Plan to address them.