Today, I read an interesting opinion piece in The Boston Globe about how a sexual harassment policy nearly ruined Patrick Witt’s (the former quarterback for Yale University) life. Witt, who is now a law student at Harvard University wrote an op-ed criticizing Harvard University Sexual and Gender-Based Harassment Policy.

The article raises interesting questions about what sort of “due process” employees are entitled to when companies address harassment complaints. Employees who are members of a union may have certain rights and processes to challenge discipline issued, but in the absence of a collective bargaining agreement, private employers do not have to guarantee any form of due process in an investigation or when issuing discipline.

I have also been asked numerous times by employers what happens if the accused harasser sues for wrongful termination. My answer is usually some form of “good luck.”

There quite simply is no such cause of action. Of course, there might be individual claims of defamation or some other tort if the accused can prove someone actually lied about the allegations. However, for the most part, where an employer reasonably believes that a person has violated a harassment policy, the employer is not only justified, but arguably, mandated in taking disciplinary action against the employee – even if the accused is in fact innocent of the charges.


Mr. Witt’s opinion is a bit misguided, but does remind employers that there should be some sense of fairness in how investigations are conducted. His major criticism appears to be the two-step process wherein Yale allowed students to elect to make either an informal or formal complaint. There was, according to Mr. Witt, only a fact-finding where a formal complaint is raised.

Where Mr. Witt’s argument fails, in my opinion, is where he blames this process for the fact that his Rhodes scholarship and summer job were denied to him after an anonymous tip disclosed the informal complaint. In Mr. Witt’s mind, the whole system failed him because he was not given an opportunity to “clear his name” with a formal fact-finding.

It is not clear whether Mr. Witt has fully read the new policies and procedures that he is railing against as the Harvard Sexual Harassment Procedures for Complaints Against Students indicate that the accused will be given an opportunity to respond to the allegations, even where the complainant has requested an informal resolution.

Although I certainly do not know why the Rhodes Committee or his prospective summer employer was upset after learning of the informal complaint, it is not clear that even if Mr. Witt had been able to attend a fact-finding that the outcome would have changed. It also is questionable that he lost the Rhodes Scholarship as a result of the complaint as news stories at the time quoted him as saying he chose not to be interviewed by the Scholarship Committee so that he could play in his last rivalry game against Harvard; he also issued statements specifically denying that he withdrew his candidacy on account of the complaint.

Regardless, the bigger failure here, to me at least, was the fact that what was supposed to be a confidential process was leaked. It is difficult for employers to guarantee complete confidentiality, but employers should nonetheless take steps to insure the confidentiality of the process.


Mr. Witt’s article also discloses a little something about human nature. In his article, he blames his failure to get drafted by the NFL as solely related to the informal complaint that was raised against him. A little quick fact-checking discloses that this is not likely true. In 2012, he was the 17th ranked quarterback in the draft and ranked number 320 overall. In short, getting drafted was a long-shot.

However, people do have a tendency of having blind spots where their own faults lie. I am not saying that Mr. Witt did engage in any sexual misconduct. But the fact remains that Mr. Witt believes he was innocent and believes that had he been afforded an opportunity to tell his side, he could have convinced the Rhodes Committee, his summer employer and the NFL that he was innocent. He believes this so strongly that he has publicly challenged Harvard University’s sexual misconduct policy, bringing up his “humiliating” past in the media.

The parallels to employees can be easily drawn. An employee disciplined for violating a harassment policy who feels no one ever heard his or her side of the story is not likely to accept responsibility and modify behavior to eliminate harassing conduct. Employers need to factor this in when investigating complaints of harassment.