Tackling campus sexual misconduct: Can Universities be held vicariously liable?

Author: Barry Walsh

October 30, 2018

In recent weeks, following the return of the university academic year, a number of high profile stories have emerged regarding allegations of sexual harassment or other alleged inappropriate behaviour.

For example, allegations recently emerged regarding “nude acts” in the context of an election for first year class representatives at an Irish university. The university in question issued a strong statement indicating that “inappropriate behaviour of this nature is not tolerated by the university” and the university committee responsible for governance of student societies decided that the students involved “should undergo a training workshop focusing on the topic of respect and dignity”.

Separately, in August, an NUI Galway SMART Consent research report indicated that many female students experience sexual coercion and harassment by electronic means.

Further, recently, the Cork Sexual Violence Centre said it had been made aware of three rapes of college students since the start of the academic year.

While it is reasonably clear that an employer can potentially be vicariously legally liable for sexual harassment carried out by its employees against other employees, alleged incidents between students are not within the scope of the employment relationship. It is considerably more difficult for students to establish vicarious liability of an institution for acts of other students compared to acts by employees.

However, with an increased focus on the third-level environment, educational institutions must remain vigilant on the need to create as safe an environment as is reasonably feasible. Such steps may look similar to the type of steps an employer should put in place and might include:

  • Increasing and maintaining awareness of what is unacceptable;
  • Provide mechanisms for complaints;
  • Addressing complaints when made; and
  • Taking appropriate sanctions or other protective measures misconduct is established.

In simple legal terms, this could be looked at from a prevention and correction perspective.

There are many such initiatives that can be used in this regard. Most university polices on Dignity & Respect Policy cover the entire campus community including employees and students and provide a mechanism for complaints. The availability of Dignity & Respect advisors / contact persons is also common. Additionally, consent workshops and classes on “bystander intervention” for third level students are also becoming more established.

All of these help to create the right culture at an institution (or employer) and, in turn, from a legal perspective will stand to the organisation in terms of reducing risk of legal liability.

Where incidents are reported they should always be addressed swiftly. Failure to properly deal with complaints is one of the main reasons why an organisation might be held liable in the event of legal claims.

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