MCLE Self-Study: The Meaning of "Due Process" in Harassment Investigations

By Amy Oppenheimer and Alezah Trigueros

Amy Oppenheimer leads a law office focused on workplace investigations, training, and mediation of workplace disputes. She is co-author of Investigating Workplace Harassment: How to be Fair, Thorough, and Legal, (Society for Human Resource Management, 2003), and is the founder of the Association of Workplace Investigators, Inc. (AWI). Alezah Trigueros, an associate at the law offices of Amy Oppenheimer, investigates workplace harassment and misconduct and allegations of sexual assault in schools and universities, both public and private. Ms. Trigueros also conducts workplace assessments.

I. Introduction

The #MeToo movement shone a light on the pervasiveness of sexual harassment, bringing into the public consciousness the breadth and scale of harassment faced by women in the workplace, in educational institutions, and in their private lives. The movement has also placed increased pressure on employers and educational institutions to address harassment occurring in those settings and to take action against individuals found to have engaged in prohibited conduct. This in turn has led to concerns regarding the rights of those accused of engaging in sexual harassment and questions of whether the investigations and adjudications of harassment complaints in employment and educational settings afford due process to the accused.