Harassment Suit Against UE Dismissed. What Does It Mean?
Last summer, Alexis Seay, a former University of Evansville student, filed a complaint in federal court alleging that she was racially and sexually harassed by a theatre professor.
That professor, Scott Lank, was fired, and the lawsuit was dismissed earlier this week after the parties reached a settlement.
Seay's lawyer didn't respond to calls about the settlement, and a UE spokeswoman gave WNIN a terse comment.
"The University considers the matter resolved and has no further comment at this time," she wrote in an email.
To learn more about how harassment suits often end, WNIN’s Isaiah Seibert spoke with a law professor who wrote a textbook on this type of case.
A lightly edited transcript of the conversation appears below.
SEIBERT: I'm here with Jennifer Drobac. She's a professor at the Indiana University McKinney School of Law and an expert on sexual harassment law. Thanks for chatting with me.
DROBAC: Happy to be with you.
SEIBERT: We're talking about a lawsuit against the University of Evansville and one of its former professors. The lawsuit claims Title VI and Title IX violations. Could you explain briefly what those are and what it means for someone to make this type of complaint against a university?
DROBAC: Okay, so let's go back to 1964, the civil rights movement. You get the 1964 Civil Rights Act. Title VI and Title VII, which deals with employment, were part of that. Title VI prohibits discrimination on the basis of race, regarding a program that receives federal funds.
Fast forward to 1972, and you get the Educational Amendments and Title IX, which prohibits discrimination in a federally funded education program. So the combination of Title VI and Title IX means that someone cannot be discriminated on the basis of race or sex.
By the way, Title IX does cover discrimination on the basis of race as well, but by combining the two, you get an extra push saying there have been gross civil rights violations.
SEIBERT: This complaint alleged Title VI and Title IX violations. You said that there's something special about this complaint, right?
DROBAC: Yes, this complaint is unusual in that most complaints are signed by lawyers who are operating on behalf of their clients. This one was of course signed by the plaintiff's lawyer, but it was also what we call verified by the target woman herself. That is, Alexis signed this verification. She got before a notary. She signed under penalty of perjury that she believed that the allegations in the complaint were true.
That's really unusual, and I tell my law students that you want to do that as a lawyer because in many jurisdictions, when you have a verified complaint, the defense has to file a verified answer. That means they need to get up there and swear under penalty of perjury that their denial is true. It's really important that if you get a university that is denying that any of these behaviors occurred, that anyone complained, that they didn't behave inappropriately as an institution, they're swearing under penalty of perjury that that is all true.
It's unusual to see that in a lawsuit. You're seeing it in this lawsuit, which means that the plaintiff target woman is really serious and that the plaintiff's counsel has done their homework.
SEIBERT: It's unusual, you said, that there was this verification of the complaint. Was it unusual that it didn't go to trial, or do these cases often not make it to trial at all?
DROBAC: These cases often don't go to trial. And I'll tell you, the cases that do go to trial, they often go to trial for typically two reasons. Either the lawyers have no control over their outrageous clients, who for what ever reason think they're going to be vindicated in court whether or not that's true, or the case isn't that strong and they're not offered a good amount to settle.
If it's a really good case, in my experience, it settles because the party that's engaged in inappropriate conduct doesn't want all the details and evidence coming out to further undermine its reputation in the community.
SEIBERT: Court documents say the parties in the lawsuits reached a settlement. What often is a part of settlement in these cases?
DROBAC: Often in a settlement, the parties will deny any liability. That's very common. In this particular instance, it would be common that the University of Evansville would not admit to any liability, any wrongdoing on its part. And that's part of what you get when you agree to settle. You just agree that everyone is going to walk away and no one will admit liability, which can be a frustration for the plaintiffs, but often it's better than having to go through the trauma of a trial.
Often you'll also see a non-disclosure agreement, also called a gag order, meaning the only thing that the parties can say is, "We've resolved this case to the satisfaction of all parties." Which means, "I can't talk about this because the settlement agreements says I can't talk about this."
You never find out of money exchanged hands, but money may not be the only thing that exchanges hands. In a case that I prosecuted on behalf of a graduate student against Stanford University, there was certainly a desire on the part of my client to have changes to the Stanford complaint process, investigation process, etc.
A plaintiff can ask for process changes, can ask for an injunction, can ask for an apology, which my clients typically did because especially if a defendant is not going to admit liability, getting some sort of apology or some sort of acknowledgement can be really important for someone who's been traumatized.
SEIBERT: I have two follow-up questions to that. First, you mention that sometimes money does exchange hands. What's the average amount of money changing hands in these cases?
DROBAC: It changes based on your geographic location, the history of problems in the area. Many years ago when I was prosecuting these cases, it was a general rule of practice that if you had someone who was a potentially high earner ... most of the time when you have an offensive touching of an intimate body part, that immediately puts you into a six-figure number, so $100,000 or more.
In the first four years of my practice in the 1990's, now that's years and years ago, I had a number of cases settled for half a million dollars or more. Those are going to be cases of egregious sexual assault, touching of intimate body parts, the breast, the buttocks, the lips of the face. With a case of offensive touching rather than just banter at the coffee maker or crude props or jokes, whenever there's an intimate touching that's offensive, that will also increase the value of a case so you'll get into much larger sums.
I would say that with this case, if, again if, the allegations were true, that would put you into a more valuable case because there are allegations here that this professor was touching her hair. Now that's not considered an intimate body part, but when somebody does something over and over and over again and there have been multiple complaints, that also tends to increase the settlement value of a case.
SEIBERT: Does this money often come from the institution, the professor, or a combination of both?
DROBAC: That's a good question. Under Title IX and other anti-discrimination laws, typically you are not suing the perpetrator. You're typically suing the employer or the educational institution, in this case the University of Evansville. Interestingly, I did not see an Indiana Civil Rights Act charge in the complaint, and that's because under the Indiana Civil Rights Law, the employer or responsible party has to agree in writing to be sued.
Right. I saw your face there ... It's shocking. It's shocking that the Indiana Civil Rights Act requires that an employer, responsible body for maintaining a safe environment, has to agree in writing. How many employers are going to do that? None. In essence, Indiana doesn't have a Civil Rights Act with respect to sexual harassment. You really have to rely on federal law and what we call common law.
California, on the other hand, has a state law that protects both workers and students, and there are opportunities to sue the alleged perpetrator, which I think most Hoosiers think, and maybe I'm going out on a limb but I don't think so, most people think that whoever engages in a bad act should be held personally responsible. Personal responsibility for your behavior, good or bad.
In this case, you're not going to see it. She has to sue the University of Evansville. Quite frankly, I was a little surprised to see the professor involved in the lawsuit and to see the Title IX coordinator involved. Those were unusual, and you do that, I think, to make a point — to say, "I'm including you as defendants because you've engaged in wrongful and inappropriate conduct as well." When I read the complaint, I also thought that some of the people in this Title IX office were themselves victims, if the allegations are true of course.
SEIBERT: You mentioned that when you were involved in these cases in California, some of your clients would want to look into changing the process of Title IX investigations. How often are these structural or policy changes at universities a part of these settlements?
DROBAC: It depends. If somebody has a good policy or procedure and the group discover that there's a bad actor in the barrel if you will, there's no need for policy changes or procedural changes. But when problems like this percolate up, that suggests that there may be problems with the policies and procedures. For example, you'll see that institutions don't publish where students or workers can go to complain. They don't provide telephone numbers or contact names or locations where you can find these people. Or maybe they have a workforce that speaks predominantly another language and all of the materials describing the prohibitions are in English. For example, there was a case in Indiana where they had literature regarding anti-sexual harassment but it was all in legalese. I tell my students, "Don't write like that. Write for people so that they can read it and understand it." It just so happens that this employer happened to be hiring mostly teenagers, who would be especially inexperienced in reading the legalese of their civil rights.
The employers have to make sure they have policies and procedures, and they will often make changes because to be fair and balanced about this, most employers or educational institutions, they don't want to have a problem on their campus. They want all their students and teachers and everyone to be happy. While they are afraid of liability and sometimes don't engage in remedial efforts the way they should, you will often see that they will want to review policies and procedures to make sure these things don't happen in the future.
SEIBERT: That was the end of my questions. Is there anything else you want to mention that we didn't get a chance to touch on?
DROBAC: Yeah, I think it's really a problem when it becomes clear, and I read this and so I'm assuming it's true, just taking the allegations in the complaint to be true for the moment, that there was this discussion of a tenured professor, and that it's hard to fire a tenured professor. I think that your listeners should know that tenured professors are not above the law. No one is above the law, not even the president of the United States.
When credible allegations of sexual assault or sexual harassment come up, we do need investigation and remediation and consequences for the behavior, if it's determined to have occurred, against the perpetrators. A tenured professor can be fired for cause. Sexual harassment or sexual assault or, heaven forbid, rape are absolutely reasons that you could fire a tenured professor. Universities and colleges have to step and make sure that their tenured or tenure-track faculty are held responsible for any inappropriate behavior.
SEIBERT: Jennifer Drobac, professor at the Indiana University McKinney School of Law, thank you for shedding some light on this case.
DROBAC: It's really my pleasure. Nice to meet you.