No More Passing the Harasser

Pass the trash, pass the harasser: call it what you will, but the University of Wisconsin System doesn’t want to do it anymore. So it’s moving forward with a policy on disclosing misconduct findings against employees to future employers during reference checks. The system will automatically share such information between its campuses and other state agencies. And it wants such disclosures on its own potential hires, too.

Wisconsin fast-tracked the policy change this summer, after it was revealed that Shawn Wilson, a former assistant dean of students at the Stevens Point campus and deputy coordinator for Title IX of the Education Amendments of 1972, which prohibits gender-based harassment, resigned during an investigation that would eventually find he had likely repeatedly asked a campus business employee to go home with him and made sexual innuendos.

Wilson soon picked up the same job at Knox College, which has said it was not notified of the findings against Wilson during a reference check. He left Knox a year after arriving -- the college has not said why -- and was promptly hired as an assistant dean and deputy Title IX coordinator back in Wisconsin, at the university system’s Eau Claire campus. Eau Claire also has said it was unaware of the findings against Wilson, who resigned after a system employee learned that he had returned.

The scenario seems extraordinary, in part because institutions within the same university system failed to share pertinent personnel information with one another, and because Wilson was supervising harassment investigations in all three of his jobs. But the general scenario, in which an institution quietly terminates a harasser or lets him or her resign and move on to another institution without raising a red flag, is not unusual. The phenomenon even inspired Representative Jackie Speier, a California Democrat, to call for mandatory misconduct disclosures regarding students, faculty and staff, in 2016.

That idea, as it applies to faculty and staff, hasn’t taken national hold thus far. But in Wisconsin, local press reports about Wilson became national news, and Governor Scott Walker called on the state university system to do something. In June, the university system's Board of Regents approved a resolution calling for the system to develop a more thorough, uniform reference check policy. 

The policy framework resembles requirements for K-12 schools across the country under a provision of the federal Every Student Succeeds Act and other state laws. College students increasingly face disclosures of sexual misconduct findings on their transcripts, too.

Wisconsin officials have said that in the Wilson case, they answered the questions they were asked during reference checks, and that sexual misconduct didn't come up. But under the system's new policy framework, potential employers would automatically be directed to contact a central human resources office for any findings on misconduct during these checks. And system institutions would have to ask other institutions about sexual misconduct findings against potential hires.

What Disclosure Means, and What It Doesn't

Wisconsin’s current policy draft ensures the consistent disclosure of sexual violence and harassment policy violations to institutions considering hiring its onetime employees. Chairs and other supervisors wouldn’t share what they know about misconduct during reference checks. Rather, they’d direct all misconduct questions to a designated, trained human resources office. The policy also stipulates that Wisconsin institutions ask about sexual violence and harassment findings during their own hiring processes.

The content of employees' personnel files would be standardized under the policy and automatically shared between system institutions and other state agencies. Investigative materials would not be included, just findings and resolutions. And because employees accused of harassment sometimes resign during investigations as a way of shirking responsibility, institutions would have to complete all investigations, whether the employee was still there or not. In such cases, the personnel file would note that the employee left during an investigation.

Crucially, the policy does not include the disclosure of unsubstantiated allegations: those investigated for and cleared of misconduct would not be impacted. And according to information from university system's policy working group, disclosure is not an automatic disqualifier for employment at Wisconsin: findings on potential employees would be weighed against other personnel information in the hiring process.

‘Leading the Charge’

“It’s cutting-edge and I think the other systems are looking at us in Wisconsin, leading the charge,” John Robert Behling, president of the system’s governing board, said last month upon being briefed on the draft policy by the working group of Title IX, legal and human resources experts and administrators from across the system.

Quinn Williams, the system’s general counsel, said at the time, “This is an issue everyone is wrestling with now and in real time … This is a significant employee and student safety issue.”

The policy, which is still being formalized, is expected to take effect in January. The working group said other institutions in other states already have taken interest in its plans.

One reason institutions often don’t share harassment findings is that they fear legal retaliation by past employees who lose out on jobs over disclosures. But the Wisconsin working group found little evidence of successful defamation claims where the disclosed misconduct findings were based on sound investigations.

The National Association of College and University Attorneys declined to comment on Wisconsin’s plan, saying it doesn’t comment on legal issues involving member institutions. But member institutions have discussed what to do about reference checks and misconduct disclosures of late.

Natasha Baker, a San Francisco-based attorney who works with colleges and universities on issues including Title IX, said she hadn’t seen a provision such as Wisconsin’s just yet, but that that could change quickly.

“If you look at the way the student process of disclosure is going, and the increasing numbers of reports of faculty and staff misconduct, it’s easy to see things going this way,” she said. California, in particular, has seen recent legislation protecting employers who share, without malice, "privileged information" on employee misconduct with potential employers.

Dispelling the Defamation 'Myth' 

Special provisions for sexual misconduct aside, Baker said that the truth has long been a strong legal defense against defamation claims. So she’s always trying to dispel for her clients the legal risk “myth” surrounding disclosure. Nevertheless, the notion persists, she said.

“We include this in every single training we do on providing reference checks, but it is this myth we cannot break open,” she said. “It just makes me crazy.”

Sometimes settlement terms between an institution and departing faculty or staff member accused of harassment or assault specify nondisclosure in reference checks, as in “name, rank and serial number" only. But that’s the exception, not the rule, Baker said -- as long as investigations are fair and thorough.

Another reason academic supervisors, such as department chairs or deans, don’t mention findings of harassment in background checks is that they “panic,” Baker said. That’s because many of these supervisors have lots of disciplinary training but no real administrative preparation for their roles. So they're afraid of saying too much or too little.

That is changing, even if some academic administrators still resist training and tasks traditionally associated with human resources professionals. But in the interim, Baker said, asking supervisors to automatically direct misconduct history questions to a central office -- as Wisconsin will -- is a smart strategy.

“If you are going to disclose this information, there’s an appropriate way to do it,” Baker said. “And I would think that institutions would want to be careful to be providing reference checks based on findings rather than allegations.”