Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

Lynn,

Retaliation is very case specific, so it is hard to give you more than
broad strokes unless you want to talk off-line in more detail.  To be
retaliation, there has to be an intentional adverse act directed at
someone who is engaged in a protected activity (complainant, witness,
complainant's supporters) because they are engaged in that protected
activity.  That makes it sex/gender based, because the underlying
complaint is.  It does not need to rise to the same level of
discriminatory effect as the underlying act, because of the chilling
effect retaliation can cause.  So, let's use the UNC Chapel Hill case as
an example.  If the female student made a good faith allegation, did not
prevail in her hearing, and then did things that allegedly caused a
hostile environment for her alleged perpetrator, she is just telling her
truth.  He cannot be retaliated against because he is not engaged in a
protected activity.  If she is not telling her truth (just for example,
not saying that happened), he still does not have a retaliation claim, but
may have a claim for a false complaint, or under Title IX, for being
discriminated against on the basis of his gender (a knowing false
complaint would be discriminatory under Title IX).  As Chapel Hill
realized, she was speaking her truth, and did not use his name (according
to the media reports).  Therefore, allowing him to file a hostile
environment claim against her was allowing him to use their system to
retaliate against her protected activity.  Therefore UNC was right (if
delayed) in deciding not to allow the complaint to go forward at this
time.  Generally, then, if a respondent wants to file a complaint after a
victim's complaint is processed, he (or she or zhe) would be able to do so
if they can show an independent sex/gender-based discriminatory act.  All
other bases for the complaint would potentially be retaliatory.

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law


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On 4/29/13 11:24 AM, "O'Brien, Lynn" 
<>
 wrote:

>Good morning listserve members,
>Could any of you offer some direction about where to find guidance
>regarding responding to retaliation complaints.
>It seems that Title IX would require a response that protects victims
>from such complaints but also seeks parity from colleges and universities
>in responding to sexual assault and harassment complaints from all
>students.  Is there guidance about evaluating sexual assault complaints
>that are made by a student after a determination of responsibility is
>found against that student?
>Any resource or guidance is appreciated.
>
>Lynn O'Brien, LCSW, LMFT
>Counselor
>Coordinator of Sexual Violence Prevention and Treatment Services
>Marquette University
>phone:  (414) 288-7172
>fax:  (414)288-7598
>
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