Know Your Rights: How Due Process Does (And Should) Work In Grievance Procedures
Know Your Rights: How Due Process Does (And Should) Work In Grievance Procedures
A DSA Observer Commentary
Know Your Rights: How Due Process Does (And Should) Work In Grievance Procedures
The National DSA organization has been in widely-publicized conflict for several months. The internal disagreements over the National Political Committee’s handling of Rep. Jamaal Bowman’s support of funding to Israel has escalated tensions within the organization. Additionally, a well–documented conflict in Atlanta led to the expulsion of multiple members associated with the chapter’s AfroSoC caucus and new Mosaic organization.
At the 2017 National Convention, Resolution 33 was passed, after being amended, which established a clear and precise harassment and grievance policy, including a detailed procedure for both filing a grievance and handling a grievance at the local and national levels. In 2021, Resolution 28 was passed, mandating the creation of a national committee of harassment and grievance officers (HGOs), additional training for local chapter HGOs, and studying and analyzing current processes in order to make recommendations on refinements of the process. Additionally, the NPC’s Recommendations to the 2021 DSA Convention contained Grievance Process Updates, which require, among other things, the requirement of confidentiality during the grievance process.
Among a heightened level of national conflict, movement on the implementation of Resolution 28 has been slow moving. An application for the National Committee of Grievance Officers was opened in February 2022. In March it was announced on the Forums that the Application would be extended until March 27th. This process may have been derailed as Matt Miller, the NPC member bottom-lining the implementation of Resolution 28, resigned in March of 2022. No official update has been provided by the NPC, and we have confirmed that those who applied to the Committee have not received an update. NPC member Jenbo has kept a running update on the Forum thread, noting that she had made several proposals and attempts to move the process forward, which have not been adopted by the NPC.
DSA is at the beginning stages of developing a sustainable and functional process for handling grievances and conflict overall. Resolution 33 and 28 are grounded in US Court system procedures, similar to other large organizations. Before we can start to build out new processes, we need to understand some basic concepts of civil rights law that guide other similarly-situated organizations or institutions such as universities.
As a professional with training in the field of civil rights work, I wanted to offer my perspective to the DSA membership. In this article I will outline how I think well-run organizations address internal civil rights investigations, and provide some concepts basic to these kinds of investigations. As an organization, we can choose to continue or reject these concepts, but a baseline understanding is necessary before we can proceed.
A note – The approach I outline is intended to offer a foundational explication for current internal grievance procedures; a foundation that is derived from the US legal system. Other models, such as restorative and transformative justice approaches, could look quite different than this when applied. But as an organization we have not yet done the work to offer a strong foundation to resolve grievances, much less alternative pathways to address the harms people have experienced. And until we do that work, we have our grievance process, which is rooted in U.S. civil rights law. Some of the language I use to describe things might feel adversarial – that is a reflection of the Western law system that serves as the foundation for things like DSA’s Codes of Conduct.
I also want to note that I’m offering this in support of the membership body and members who are taking on the role of HGO in their local chapters. Most DSA members are not experts or even experienced with harassment and grievance procedures and how they are implemented in workplaces or other organizations. This is not necessarily a prescription meant to be adopted uniformly for how DSA’s grievance process should be run – the responsibility for crafting that should lie with the national HGO body convened by the membership body in the 2021 convention resolution Resolution 28. What I describe here, however, is what any member should be able to expect from an organization that values due process.
A Complaint has been Filed
A civil rights investigation is usually, if not always, triggered by a complaint or as we call it in DSA, a grievance. When a complaint is submitted to a person responsible for handling grievances for their organization, the organization is considered to have been given “notice.” This means that an organization has been made aware that someone or something’s behavior is wrong, likely in violation of the codes of conduct that govern member behavior, and it should be addressed. That person responsible for grievances (let’s call them an HGO – “Harassment and Grievance Officer”) then has a responsibility to respond. Their first step is:
What immediate interim actions do we (as an organization) need to take?
This could include interim suspension for the member who is alleged to have exhibited those behaviors or violated those boundaries. It could be providing support from organizational resources for the person harmed. And it will almost assuredly require more preliminary investigation to make sure the HGO knows as much of the facts as the person who submitted the grievance will share.
Traditionally, there is a very high threshold for actions that could impact someone’s status as a member (such as interim suspension), as you are cutting a member off from the organization they have paid dues for and have every right to be a part of. If someone is suspended on an interim basis, that initial complaint should demonstrate egregious behavior such that it is imperative for the organization to (temporarily!) remove that person from their status as a member in good standing in order to prevent further harm from happening. And if there is an interim suspension, it should be a specific short duration, pending the resolution of the complaint about their behavior that prompted it.
In civil rights law, egregious and pervasive are the two terms used to apply to the major forms of harassment. Egregious behavior is usually a single or short series of incidents. For example, a sexual assault is an egregious behavior that would tremendously impact a harmed party’s ability to participate in the organization. Pervasive has to do with repeated and ongoing forms of harassment. For example, someone being cat-called every time they entered a meeting room space, or receiving messages on multiple digital means about how attractive they are. While not as traumatic as an incident of sexual assault, these accumulate and add up to a pervasive environment.
The HGO should meet with the person or people reporting harm to gather more information. This preliminary investigation is an essential part of the next phase: evaluating the complaint for its initial merit and credibility.
It is an uncomfortable truth that not every grievance has merit. Not every complaint about someone’s behavior is a violation of a code of conduct. Which is not to say that someone may not be rude, mean, or generally antagonistic towards other people, or that their behavior cannot negatively impact another person. Whether or not that reaches a level that requires a full HGO-managed grievance process, one which could impact someone’s membership status, is an important evaluative step in a civil rights investigation process. If a complaint does not meet the definitional criteria of a complaint, then it is unfair to subject someone to the often-challenging ordeal of a grievance process.
Beyond Preliminary Investigation
When an HGO determines a complaint does have merit, though, there are important due process steps to follow. Due process is a term you probably have heard before: in essence, it seeks to give people who are accused of violating rules a fundamentally fair opportunity to respond to those accusations. The following are generally accepted good practices and provisions, recognized as a standard element of procedural fairness, allowing the accused to respond to allegations that could negatively impact their standing or participation in their community, workplace, or democratically-run organization. These due process considerations are:
Notice of an alleged violation (what policies did someone say you have broken?)
An opportunity to be heard (a chance to respond to these allegations in your own voice)
An impartial tribunal (people who can be impartial when responding to the case)
These are the broadest and most fundamental elements; some organizations or institutions expand upon them, these three are generally-agreed-upon provisions that many institutions or organizations have utilized.
If you are accused of violating a code of conduct or of exhibiting harassing behavior, in order to effectively respond to that allegation, you need to know what behavior you’re being accused of, when you are alleged to have done that behavior, and by whom are you being accused. Otherwise you may find yourself asking, “What is this about?” and be unable to respond in a way that addresses the concerns about your behavior.
You also simply need to be able to respond to the allegations, period. This opportunity to respond to an allegation goes back hundreds of years in Western jurisprudence. It is not enough for someone to investigate your conduct; you need to be able to give context, explanation, or some other response to what the allegations against you are. Your response (a statement, interview, or something else) should be included in whatever documents – presumably a report – that are delivered to the people who are designated the impartial decision-makers. Some investigative models utilize an HGO (in our case, or whatever other title that organization uses) as the person who determines what “more likely than not” (or a preponderance of the evidence) happened; some use a fact-finding model where the HGO presents the information and a decision-making body uses that information to determine a finding (which I will discuss next).
The “more likely than not” standard is one called formally preponderance of the evidence. This evidentiary standard is common for civil rights complaints. You might be familiar with the common refrain “beyond a reasonable doubt” – that standard of evidence is asked for in court cases where someone could be incarcerated. Different evidentiary standards are applied based on the potential impact of someone being found responsible for the behavior they are alleged to have committed. (These are frequently misapplied in our criminal justice system, but for the purposes of this discussion, preponderance of the evidence is that standard most organizations use in evaluating the facts collected through an investigation.)
How to run an investigation is beyond the scope of this article so I will refrain from further commentary, but either an HGO or a decision-making body should be performing what is called fact-finding, where they evaluate the information collected and make a statement essentially saying: “based on the evidence before us, we believe this happened.” But this fact-finding is not the end of the adjudication.
Hearings and Findings
How an institution or organization then weighs these findings to make a decision on whether a policy has been violated can vary, but most will next have some kind of hearing on the investigation. There are a number of ways in which findings and hearings are utilized, sometimes even within the same organization. Some bodies offer an opportunity for the accused person to accept a finding without a hearing, thus allowing them to move past a hearing to the sanction, or whatever discipline the hearing body uses. The most important element of this step is that there is some kind of hearing on the fact-finding that has been undertaken and individuals are allowed to respond to the evidence collected before them. A body independent of the HGO needs to make a determination on the facts before them and assess the credibility of the report itself.
It is considered a best practice in the field of civil rights investigation that the person accused (along with the person or persons making the accusation) be allowed to see the report that the HGO has prepared in advance of any hearing. This is essential so that the person accused has a chance to adequately defend themselves or their actions, just as they should be informed at the outset what accusations have been made against them. Without seeing this report, it is nearly impossible to advocate for themselves or offer an explanation. The complainant should see this report well in advance of that hearing as well. Often, either party’s comment or response after seeing the report is also then included before the report is delivered to a hearing panel or board.
There are many ways to structure hearings, especially in the context of sexual harassment or racial bias, in order to mitigate harm that someone might experience within the hearing itself, so we will not go into how to structure a hearing here. But it is essential that a hearing happens and that there be a record kept of it so that the parties involved are allowed to appeal the outcome. After that appeal, usually to a higher body or a smaller, separate subsection of the initial adjudicating body that did not participate in the original adjudication, the matter is considered final. The hearing body is typically the one recommending any sanction or action against the accused person, based on the information determined in that hearing. Any interim actions or measures that have been put in place for the length of the investigation and adjudication of this matter are ended, as the matter has been considered resolved by the organization.
Let’s say a grievance happened where a member was suspended on an interim basis. The chapter HGOs investigate and deliver a report to a chapter steering committee, who decide that the member who was suspended should also be suspended for a period of time. It is important to think of these two suspensions as two separate things: one of them was simply for the duration of the investigation to mitigate further harm; the other is a sanction for their violation of chapter or organizational policy. This might seem like a nitpick but it’s an important procedural approach I want to highlight here.
When a decision has been made, that decision should be delivered in writing to the people impacted, along with the reasoning and for what charges a person was found responsible or not responsible for, and what the appeal steps are and how to file an appeal, including any timelines that have to be respected in this process.
The introduction of multiple steps to ensure that erroneous decisions are not made is lengthy, but it’s an important part about the fairness of a grievance process. These multiple steps help ensure that a matter is fully examined before someone loses access to their employment, organizational membership, or other benefit.
A Note on Confidentiality
Information is power. This is a truism and yet also forces us into an important analysis, especially as socialists, who think often about power and the way it impacts relationships. Confidentiality is maintained by the HGO(s), hearing body, and any other individuals from the organization who help shepherd the grievance process. This is an essential part of practicing care and sensitivity for people impacted by harassment, as well as providing an important bulwark against potential weaponization of the process.
When sharing the report with the involved parties (both the accused and the complainant), it is reasonable to redact identifying information from that report only if that information is not related or relevant to the allegations. But a party accused has to have the right to know the information that is being used against them. And a hearing body has to see the evidence compiled by the HGO or investigator. This evidence should not be redacted or otherwise edited. Leaders within organizations are entrusted with tremendous amounts of information – it is their duty to maintain the confidentiality of evidence, but they do need to see all the evidence when they are tasked with making determinations that impact someone’s membership in the organization. It is inappropriate for a hearing body to be asked to make determinations and sanctions without all the information.
Confidentiality should be practiced and observed by those handling these issues; I would never dispute that principle. But when individuals subject to or involved in a grievance process are not given fair access to information, such as the report in advance of a hearing, it supports a culture where information is shared informally and potentially inappropriately. It is in the best interests of any organization to have well-defined paths for information sharing and for that information sharing to be robust enough to support those accused of misconduct to respond effectively.
Closing
There are many other issues surrounding grievance processes that we believe also merit discussion, such as whether or not it is appropriate to apply harassment-based civil procedures to questions of conduct in an organization, that I don’t have space for here. We hope this provides a springboard for further discussion among comrades and that the national HGO working group can take up this charge to address our due process in the organization.
I also want to name that not every decision taken in a harassment or grievance is going to turn out for the best of all people involved – we can read news stories constantly about the failures of these procedural efforts. What is not captured however are the times that it works right, and we should aim as an organization for many more rights than wrongs.
Matt Nelson is a former Title IX coordinator, investigator, and trainer. He is the past president of the Northwest Association of Title IX Administrators, serving as president for four years. He now works in restorative justice coordination in higher education.
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