Actions of Last Resort in the Academy, Part 2: External Avenues

This post follows “Actions of Last Resort in the Academy, Part 1: Internal Avenues,” where the institutional processes of and venues for making complaints relative to harassment, discrimination, assault and retaliation were outlined. But what if internal avenues fail the victim (and they often do)? What are the routes outside the academy to make complaints and seek resolution?

There are myriad reasons internal processes fail the victim. It could be because of a lack of due process, implicit bias, incompetence, inaction or fear to act against a more powerful individual (i.e., the president, a board member, a tenured faculty member) by supervisors/human resource department employees/internal investigators. More insidious reasons include outright retaliation, collusion and aiding and abetting the perpetrator. Also, never underestimate what people will do to blame, shame and destroy a victim both professionally and personally. Just look at the N.Y. governor Andrew Cuomo’s case and how his team of attorneys and aides allegedly sought to discredit accusers like Lindsey Boylan. More examples exist than can be chronicled here.

And when the processes fail, what can be done? Some people give up the fight for justice, move on to new positions at other institutions and hope never to experience what happened again. Some crumble under the weight of the trauma and find it impossible to regain their life’s joy, career and livelihood. These victims may have been retaliated against, fired or forced to resign. Others continue to fight against the perpetrators and institutions that fail to act justly. They choose external avenues such as state divisions of human rights, the U.S. Equal Employment Opportunity Commission and state and federal court systems, usually via the assistance of an attorney.

For example, the U.S. federal government’s Department of Justice has a civil rights division responsible for enforcing “federal statutes prohibiting discrimination on the basis of race, color, sex (including pregnancy, sexual orientation, and gender identity), disability, religion, familial status, national origin, and citizenship status.” And “the U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.”

Many start the external avenue journey with their state division of human rights when discrimination happens on the job. The process is complex, but states have websites outlining answers to frequently asked questions. For example, here is New York State’s website. Complainants use a form to file (which is shared with the EEOC by the state division, which helps to streamline processes), defendants respond in writing and complainants rebut in writing; each has a certain amount of time to do so according to law. Parties support claims and responses with evidence.

The division reviews the case, and an investigation usually takes place by interviewing complainants and defendants simultaneously. Following this process, the division makes an opinion to dismiss the complaint or rule that there is probable cause to believe the claims are true. (Based upon this information, the EEOC also makes its determination, since complainants can seek resolution at the federal level.) Next, the state division orders mediation to settle the claims. With an appointed judge, it is expected both parties work toward a settlement and not waste time and resources involved in a hearing. If there is no settlement, a hearing before a judge takes place to settle the matter. Another option for the complainant, if there is no settlement, is to dismiss the case for administrative convenience and seek justice via the state or federal court system.

A complaint in federal court has numerous steps. The steps are somewhat like the division of human rights but much more complicated. Sometimes the process is used to wear down the victim into abandoning the claim, as the process may take years to conclude and is very costly and emotionally draining. In general, the process looks like this:

• Claim is filed, detailing events, evidence, laws involved and precedents in case law.
• Defendants are served a notification that they are being charged.
• Case is assigned to a judge in the applicable district, and parties are notified.
• Defendants have a certain amount of time to respond in writing to the complaint giving reasons and evidence why their actions didn’t break the law and/or why the case should be dismissed based upon a reading of the law and precedents established in other cases.
• Complainant rebuts the defendant’s response similarly.
• Judge reads, considers and writes an official opinion about the case, which details why they believe the case has merit and should move forward or why the claims should be dismissed all or in part.

The first stage of a federal civil case can take more than a year to play out. If the judge deems the claims have merit, then it moves to a phase where the timing of various actions is scheduled, including mandatory mediation. If mediation fails, parties move to a discovery stage, which includes depositions of witnesses under oath and subpoenas for evidence such as correspondence, recordings, emails, texts and phone records. Discovery can yield evidence for other motions, such as summary judgment or dismissal. If the case moves forward from there, there will be a trial. The whole process can take three to six years or more. One high-profile example is the sexual harassment, discrimination and retaliation case involving the University of Rochester that settled for $9.4 million with the plaintiffs in 2020. The plaintiffs began their journey four years prior.

Fighting institutions using external avenues is akin to a David versus Goliath–type battle—daunting, grueling, complicated, lengthy and expensive. It requires a proverbial coat of armor composed of resilience, tenacity and emotional strength on behalf of the plaintiff. No plaintiff enters the process lightly; who would want to relive their trauma repeatedly? No one.

They complain because they want the behaviors to stop and for no one else to go through what they went through. As someone in higher education once said about difficult choices and standing up against injustice, “As an individual, I have a duty to myself to do the right thing. As a leader, I have a duty to others.”