It has been brought to our attention that the discussions of confidentiality vs. privilege and responsible employees during this webinar contained some potentially misleading information. In the interest of providing the most accurate and helpful information possible, we’d like to offer clarification on these very important issues.
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Confidentiality ≠ Privilege
We want to offer clarification on two issues that arose during the webinar: (1) “confidentiality” versus “privilege” and (2) who are “responsible employees” on a college campus. First, there are significant differences between “confidentiality” and “privilege” and the two terms should not be used interchangeably. The differences are especially relevant on college campuses: under Title IX, “confidential” reporters must provide non-identifying, aggregated data to the Title IX Coordinator. In contrast, individuals whose communications with the survivor are covered by “privilege” are not required under Title IX to report – and in fact under state law as a general rule are prohibited from disclosing any personally identifying information without victim consent- any information about an assault that was reported to them.
Who is a “responsible employee”?
Second, regarding who is a “responsible employee,” it’s important to know that it is not necessarily the case that every school employee – other than those with confidentiality or privilege – is a “responsible employee.” The US Department of Education’s Office of Civil Rights (OCR) states that a responsible employee is someone who “who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty. . . . Whether an employee is a responsible employee will vary depending on factors such as the age and education level of the student, the type of position held by the employee, and consideration of both formal and informal school practices and procedures. For example, while it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the authority or responsibility to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.” See question D-2 in the attached 2014 U.S. Dep’t of Education FAQs for additional discussion. We encourage campus and community personnel to discuss these issues with their particular campus, as designations differ from one institution to another.
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