Equal Opportunity, Nondiscrimination, Harassment, Sexual Misconduct and Relationship Violence Policy Statement
(Effective: November 11, 2014)
Saint Francis University, inspired by its Franciscan and Catholic identity, values equality of opportunity, human dignity, racial, cultural, and ethnic diversity, both as an educational institution and as an employer. Accordingly, the University prohibits and does not engage in discrimination or harassment on the basis of gender, age, race, color, ethnicity, religion, sexual orientation, marital status, disability, veteran status, or any protected classification. Saint Francis University will not tolerate sexual violence, dating violence, domestic violence, stalking, or sexually inappropriate conduct in any form. The University is committed to this policy based upon its values and as required by Title IX of the Education Amendments Act of 1972, the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, Title VII of the Civil Rights Act of 1964, and other applicable statutes and University policies. This policy applies to all programs and activities of the University, including, but not limited to, admission and employment practices, educational policies, scholarship and loan programs and athletic or other University sponsored programs.
Saint Francis University affirms its commitment to promote the goals of fairness and equity. All policies contained herein are subject to resolution using the University’s Equity Grievance Process, as detailed below. The Equity Grievance Process applies regardless of the status of the parties involved, who may be members or non-members of the campus community, students, student organizations, faculty, administrators and/or staff. The University reserves the right to act on incidents occurring on campus or off-campus, when the off-campus conduct could have an on-campus impact or impact on the mission of the University.
The Associate Vice President and Title IX Coordinator is the Title IX/Equity/Affirmative Action and ADA/504 Coordinator and oversees implementation of the University’s Affirmative Action and Equal Opportunity plan, disability compliance, and the University’s policy on equal opportunity, discrimination, harassment, sexual misconduct, and relationship violence. Reports of discrimination, harassment, sexual misconduct, relationship violence, and/or retaliation should be made to the Title IX/Equity/AA and ADA Coordinator promptly, but there is no time limitation on the filing of allegations, as long as the accused individual remains subject to the University’s jurisdiction. Reporting is addressed more specifically on page 8, below.
This policy applies to behaviors that take place on the campus, at university-sponsored events and may also apply off-campus and to actions online when the Title IX/Equity/AA and ADA Coordinator determines that the off-campus conduct affects a substantial University interest. A substantial University interest is defined to include:
a) Any situation where it appears that the accused individual may present a danger or threat to the health or safety of him/herself or others;
b) Any situation that significantly impinges upon the rights, property or achievements of self or others or significantly breaches the peace and/or causes social disorder; and/or
c) Any situation that is detrimental to the educational interests of the University.
Inquiries about this policy and procedure may be made internally to:
Ms. Heather Meck
Title IX/Equity/AA and ADA Coordinator
102A Raymond Hall
(814) 472-3213
Email: hmeck@francis.edu
Inquiries may be made externally to:
Office for Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-1100 Customer Service Hotline #: (800) 421-3481
Facsimile: (202) 453-6012 TDD#: (877) 521-2172
Email: OCR@ed.gov
Web: http://www.ed.gov/ocr
Table of Contents
Policies and Procedures:
- Nondiscrimination
- Accommodation of Disabilities
- Discriminatory Harassment
- Consensual Relationships
- Other Misconduct Offenses
- Retaliation
- Remedial Action
- Confidentiality and Reporting of Offenses
- Federal Timely Warning Obligations
- Equity Grievance Process for Resolving Allegations
- Formal Title IX Incident Review Procedure
- Revision
Saint Francis University fully subscribes to all federal and state civil rights laws banning discrimination in private institutions of higher education. Therefore, any member of the campus community, guest or visitor who acts to deny, deprive or limit the educational, employment, [residential] and/or social access, benefits and/or opportunities of any member of the campus community on the basis of a protected class is in violation of the University policy on nondiscrimination. When brought to the attention of the University, any such discrimination will be appropriately remedied by the University according to the procedures below.
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The University is committed to full compliance with the Americans With Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws pertaining to individuals with disabilities. Under the ADA and its amendments, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment or who are regarded as disabled by the institution whether qualified or not. A substantial impairment is one that significantly limits or restricts a major life activity such as incident review, seeing, speaking, breathing, performing manual tasks, walking, or caring for oneself.
a. Students with Disabilities
The University is committed to providing qualified students with disabilities with reasonable accommodations and support needed to ensure equal access to the programs and activities of the University.
All accommodations are made on a case-by-case basis. A student requesting any accommodation should first contact the Accessibility Services Coordinator who coordinates services for students with disabilities. The Coordinator reviews documentation provided by the student and in consultation with the student, determines which accommodations are appropriate to the student’s particular needs and programs. It is then the student’s responsibility to make direct requests for accommodations to individual faculty or staff.
b. Employees with Disabilities
Pursuant to the ADA, University will provide reasonable accommodation(s) to all qualified employees with known disabilities, where their disability affects the performance of their essential job functions, except where doing so would be unduly disruptive or would result in undue hardship.
An employee with a disability is responsible for requesting an accommodation in writing from the Director of Human Resources, who will consult with the individual and his/her supervisor to identify which essential functions are affected by the employee’s disability and what reasonable accommodation(s) could enable the employee to perform those duties.
Employees requesting accommodation may be required to provide medical certification from the employee’s health care provider that includes: (1) identification of the health care provider; (2) the health care provider’s diagnosis of the disabling condition; (3) specific limitations and/or suggested restrictions and their relation to the disability; and (4) suggested accommodations.
Students, faculty, administrators, and staff are entitled to a professional working and educational environment, and University is committed to providing a work and educational environment free of discriminatory harassment. Consistent with the University’s policy on academic freedom (Article XII, Section 1, of the Faculty Handbook), the University’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include relevant, but controversial or sensitive subject matters. The sections below describe the specific forms of legally prohibited harassment that are also prohibited under University policy.
a. Discriminatory and Bias-Related Harassment
Harassment constitutes a form of discrimination that is prohibited by law. The University’s harassment policy explicitly prohibits any form of harassment on the basis of actual or perceived membership in a protected class, by any member or group of the community, which creates a hostile environment, both objectively and subjectively.
A hostile environment may be created by oral, written, graphic, or physical conduct that is sufficiently severe, persistent or pervasive so as to interfere with, limit or deny the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits or opportunities. The University condemns and will not tolerate discriminatory harassment against any employee, student, visitor or guest on the basis of gender, age, race, color, ethnicity, religion, sexual orientation, marital status, disability, veteran status, or any protected classification.
b. Sexual Harassment
Both the Equal Employment Opportunity Commission and the Commonwealth of Pennsylvania regard sexual harassment as a form of sex/gender discrimination and, therefore, as an unlawful discriminatory practice. Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status, (2) submission to or rejection of such conduct by an individual is used as the basis of employment or academic decisions affecting such individual, or (3) such conduct is sufficiently severe, pervasive or persistent that it has the effect of unreasonably interfering with an individual’s work or academic performance by creating an intimidating, hostile, or offensive working, educational, [residential] and/or social environment.
Sexual Harassment is:
- unwelcome, sexual or gender-based verbal, written or physical conduct that is,
- sufficiently severe, persistent or pervasive that it,
- has the effect of unreasonably interfering with, denying or limiting employment opportunities or the ability to participate in or benefit from the university’s educational, social and/or residential program, and is
- based on power differentials (quid pro quo), the creation of a hostile environment or retaliation.
There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of a violation of applicable sections of this policy. The University does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the University. For the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student) will not be tolerated.
Consensual romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships must bring those relationships to the timely attention of their supervisor, and will likely result in the necessity to remove the employee from the supervisory or evaluative responsibilities, or shift a party out of being supervised or evaluated by someone with whom they have established a consensual relationship. This includes RAs and students over whom they have direct responsibility.
c. Sexual Misconduct
Pennsylvania state law defines various violent and/or non-consensual sexual acts as crimes. Additionally, Saint Francis University has defined categories of sexual misconduct, as stated below, for which action under this policy may be imposed. Generally speaking, the University considers Non-Consensual Sexual Intercourse violations to be the most serious, and therefore typically imposes the most severe sanctions, including suspension or expulsion for students and termination for employees. However, the University reserves the right to impose any level of sanction, up to and including suspension or expulsion/termination for any act of sexual misconduct or other gender-based offenses based on the facts and circumstances of the particular allegation. Acts of sexual misconduct may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation and/or gender identity of those involved. Violations include:
I. Sexual Harassment (as defined above)
II. Non-Consensual Sexual Intercourse
Defined as:
- any sexual penetration or intercourse (anal, oral or vaginal),
- however slight,
- with any object,
- by a person upon another person,
- that is without consent and/or by force.
Sexual penetration includes vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation by mouth to genital contact or genital to mouth contact.
III. Non-Consensual Sexual Contact
Defined as:
- any intentional sexual touching,
- however slight,
- with any object,
- by a person upon another person
- that is without consent and/or by force.
Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
IV. Sexual Exploitation
Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse or Non-Consensual Sexual Contact. Examples of sexual exploitation include, but are not limited to:
Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed).
- Taking pictures or video or audio recording another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent).
- Prostitution.
- Sexual Exploitation also includes engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.
V. Consent
Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.
A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. It is not an excuse that the individual accused individual of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.
Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.
Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent. A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.
In Pennsylvania, a minor (meaning a person under the age of 13 years) cannot consent to sexual activity. Additionally, Pennsylvania law prohibits sexual activity between someone under the age of 16 and someone four or more years older.
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a. Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person on the basis of their actual or perceived membership in a protected class;
b. Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of their actual or perceived membership in a protected class;
c. Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another on the basis of actual or perceived membership in a protected class;
d. Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy) on the basis of actual or perceived membership in a protected class; Hazing is also illegal under Pennsylvania state law and prohibited by University policy.
e. Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally on the basis of actual or perceived membership in a protected class;
f. Violence between those in an intimate relationship to each other on the basis of actual or perceived membership in a protected class (this includes romantic relationships, domestic and/or relationship violence);
g. Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the community or the safety of any of the immediate family of members of the community on the basis of actual or perceived membership in a protected class.
h. Any other University rules, when a violation is motivated by the actual or perceived membership of the victim in a protected class, may be pursued using this policy and process.
Retaliation is defined as any adverse action taken against a person participating in a protected activity because of their participation in that protected activity. Retaliation against an individual for alleging harassment, supporting an accusing party or for assisting in providing information relevant to a claim of harassment is a serious violation of University policy and will be treated as another possible instance of harassment or discrimination. Acts of alleged retaliation should be reported immediately to the Title IX/Equity/AA and ADA Coordinator or to a Title IX Advocate and will be promptly investigated. Saint Francis University is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.
Saint Francis University will implement initial remedial and responsive actions upon notice of alleged harassment, retaliation, and/or discrimination, and will take additional prompt remedial and/or disciplinary action with respect to any member of the community, guest, or visitor who has been found to engage in harassing or discriminatory behavior or retaliation. Procedures for handling reported incidents are fully described below. Deliberately false and/or malicious accusations of harassment, as opposed to allegations which, even if erroneous, are made in good faith, are just as serious an offense as harassment and will be subject to appropriate disciplinary action.
University officials, depending on their roles at the University, have varying reporting responsibilities and abilities to maintain confidentiality. In order to make informed choices, one should be aware of confidentiality and mandatory reporting requirements when consulting campus resources. On campus, some resources may maintain confidentiality, offering options and advice without any obligation to inform an outside agency or individual unless you have requested information to be shared. Other resources exist for you to report crimes and policy violations and these resources will take action when you report victimization to them. Most resources on campus fall in the middle of these two extremes; neither the University nor the law requires them to divulge private information that is shared with them, except in rare circumstances. The following describes the two reporting options at University:
a. Confidential Reporting: If a reporting party would like the details of an incident to be kept confidential, the reporting party may speak with on-campus counselors, campus health service providers, off-campus local rape crisis counselors, domestic violence resources, state assistance agencies, or on or off-campus members of the clergy/chaplains who will maintain confidentiality. Campus counselors are available to help free of charge and can be seen on an emergency basis during normal business hours. The Ethics Point hotline and online reporting is also available to members of the campus community to confidentially report incidents.
b. Formal Reporting Options: Formal reports of incidents of discrimination, harassment, or sexual misconduct, inappropriate sexual behavior, and/or criminal activity are to be made to the Title IX/Equity/AA and ADA Coordinator or to a Title IX Advocate. Reporters can expect to have allegations taken seriously by the University when formally reported, and to have those incidents investigated and properly resolved through these procedures. Formal reporting still affords privacy to the reporter, and only a small group of officials who need to know will be told. Information will be shared as necessary with investigators, witnesses, and the accused student/accused individual. The circle of people with this knowledge will be kept as tight as possible to preserve an accusing party’s rights and privacy.
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Victims of sexual misconduct should be aware that University administrators must issue timely warnings for incidents reported to them that pose a substantial threat of bodily harm or danger to members of the campus community. The University will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.
The University will act on any formal or informal allegation or notice of violation of the policy on Equal Opportunity, Nondiscrimination, Sexual Harassment, and Other Forms of Harassment that is received by the Title IX/Equity/AA and ADA Coordinator, a Title IX Advocate, or a member of the Administration.
The procedures described below will apply to all allegations involving students or employees. Redress and requests for responsive actions for allegations brought against non-members of the community are also covered by these procedures.
a. Title IX Advocates:
Title IX Advocates are announced in an annual distribution of this policy to campus, prospective students, their parents, and prospective employees. Title IX Advocates are trained in all aspects of the discrimination process, and can serve in any of the following roles, at the direction of the Title IX/Equity/AA and ADA Coordinator:
- To provide sensitive intake and initial counseling of allegations
- To serve in a mediation role in conflict resolution
- To investigate allegations
- To act as advisors or advocates to those involved in allegations
- To serve as incident review officer for allegations, and
- To serve as incident review officer for appeals of allegations.
Title IX Advocates report to the Title IX/Equity/AA and ADA Coordinator and also recommend proactive policies, and serve in an educative role for the community. The Advocates receive annual training organized by the Title IX/Equity/AA and ADA Coordinator, including a review of University policies and procedures so that they are able to provide accurate information to members of the community. The Title IX Advocates include:
- Lynne Banks, Associate Dean of Students
Padua Hall 232B, lbanks@francis.edu, 814.472.3352
- Donald Miles, Director of Residence Life
Padua Hall 227, dmiles@francis.edu, 814.472.3380
- Dr. Peter Skoner, Associate Provost,
Scotus Hall 313, pskoner@francis.edu, 814.472.3085
- Robert Fatula, Director of Campus Safety and Police
Raymond Hall 1, rfatula@francis.edu, 814.472.3361
- Marian Bender, Director of Human Resources
Raymond Hall 101, mbender@francis.edu, 814.472.3931
- Erika Renwick, Senior Associate Director of Athletics
Stokes Athletics Center 153, erenwick@francis.edu, 814.472.3294
b. Filing an allegation
Any member of the community, guest or visitor who believes that the policy on Equal Opportunity, Nondiscrimination, Harassment, Sexual Misconduct and Relationship Violence has been violated should contact the Title IX/Equity/AA and ADA Coordinator or a Title IX Advocate. It is also possible for employees to notify a supervisor, or for students to notify an administrator or faculty member, or any member of the community may contact University Police. The University website also includes a reporting form at www.francis.edu which may serve to initiate an allegation.
All employees receiving reports of a potential violation of University policy are expected to promptly contact the Title IX/Equity/AA and ADA Coordinator, within 24 hours of becoming aware of a report or incident. All initial contacts will be treated with the maximum possible privacy: specific information on any allegations received by any party will be reported to the Title IX/Equity/AA and ADA Coordinator, but, subject to the University’s obligation to redress violations, every effort will be made to maintain the privacy of those initiating a report of an allegation. In all cases, the University will give consideration to the accusing party with respect to how the allegation is pursued, but reserves the right to investigate and pursue a resolution when an alleged victim chooses not to initiate or participate in a formal allegation.
c. Allegation Intake
Following receipt of notice or an allegation, the Title IX/Equity/AA and ADA Coordinator will, promptly assign a Title IX Advocate to work as an advocate to the person who reported the allegation. Normally, an initial determination is made whether a policy violation may have occurred and/or whether conflict resolution might be appropriate. If the allegation does not appear to allege a policy violation or if conflict resolution is desired by the accusing party, and appears appropriate given the nature of the alleged behavior, then the allegation does not proceed to investigation. A full investigation will necessarily be pursued if there is evidence of a pattern of misconduct or a perceived threat of further harm to the community or any of its members. The University aims to complete all investigations within a 60 business day time period, which can be extended as necessary for appropriate cause by the Title IX/Equity/AA and ADA Coordinator with notice to the parties.
d. Investigation
If an accusing party wishes to pursue a formal allegation or if the University, based on the alleged policy violation, wishes to pursue a formal allegation, then the Title IX/Equity/AA and ADA Coordinator appoints a Title IX Advocate to conduct the investigation, usually within two business days of determining that an allegation should proceed. Investigation of allegations brought directly by those alleging harm should be completed expeditiously, normally within 10 business days of notice to the Coordinator. Investigation may take longer when initial allegations fail to provide direct first-hand information. The University may undertake a short delay (10-14 days, to allow evidence collection) when criminal charges on the basis of the same behaviors that invoke this process are being investigated. University action will not be altered or precluded on the grounds that civil or criminal charges involving the same incident have been filed or that charges have been dismissed or reduced. All investigations will be thorough, reliable and impartial, and will entail interviews with all relevant parties and witnesses, obtaining available evidence, and identifying sources of expert information, if necessary.
e. Interim Remedies
If, in the judgment of the Title IX/Equity/AA and ADA Coordinator, the safety or well-being of any member(s) of the campus community may be jeopardized by the presence on campus of the accused individual or the ongoing activity of a student organization whose behavior is in question, the Title IX/Equity/AA and ADA Coordinator (or designee) may provide interim remedies intended to address the short-term effects of harassment, discrimination and/or retaliation, i.e., to redress harm to the alleged victim and the community and to prevent further violations. These remedies may include referral to counseling and health services or to the Employee Assistance Program, education to the community, altering the housing situation of an accused student or resident employee (or the alleged victim, if desired), altering work arrangements for employees, providing campus escorts, implementing contact limitations between the parties, offering adjustments to academic deadlines, course schedules, etc.
The University may interim suspend a student, employee, or organization pending the completion of an investigation and procedures. In all cases in which an interim suspension is imposed, the student, employee or student organization will be given the opportunity to meet with the Title IX/Equity/AA and ADA Coordinator (or his/her designee) prior to such suspension being imposed or as soon thereafter as reasonably possible to show reason why the suspension should not be implemented. The Title IX/Equity/AA and ADA Coordinator has sole discretion to implement or stay an interim suspension under the policy on Equal Opportunity, Nondiscrimination, Harassment, Sexual Misconduct and Relationship Violence and to determine its conditions and duration. Violation of an interim suspension under this policy will be grounds for expulsion or termination of employment.
During an interim suspension, a student will be denied access to University housing and/or the University campus/facilities/events. As determined by the Title IX/Equity/AA and ADA Coordinator or designee, this restriction includes classes and/or all other University activities or privileges for which the student might otherwise be eligible. At the discretion of the Title IX/Equity/AA and ADA Coordinator or designee, alternative coursework options may be pursued to ensure as minimal an impact as possible on the accused student.
f. Allegation Resolution
During or upon the completion of investigation, the investigator will meet with the Title IX/Equity/AA and ADA Coordinator. Based on that meeting, the Title IX/Equity/AA and ADA Coordinator will make a decision on whether there is reasonable cause to proceed with the allegation. If the Title IX/Equity/AA and ADA Coordinator decides that no policy violation has occurred or that the preponderance of evidence (i.e., whether it is more likely than not that the accused individual committed each alleged violation) does not support a finding of a policy violation, then the process will end unless the accusing party requests that the Title IX/Equity/AA and ADA Coordinator make an extraordinary determination to re-open the investigation or to forward the matter for an incident review. This decision lies in the sole discretion of the Title IX/Equity/AA and ADA Coordinator. If there is reasonable cause, the Title IX/Equity/AA and ADA Coordinator will direct the investigation to continue, or if there is a preponderance of evidence of a violation, then the Title IX/Equity/AA and ADA Coordinator may recommend conflict resolution, a resolution without an incident review, or a formal incident review, based on the below criteria.
Conflict Resolution. Conflict resolution is often used for less serious, yet inappropriate, behaviors and is encouraged as an alternative to the formal incident review process to resolve conflicts. The Title IX/Equity/AA and ADA Coordinator will determine if conflict resolution is appropriate, based on the willingness of the parties, the nature of the conduct at issue, and the susceptibility of the conduct to conflict resolution. In a conflict resolution meeting, a Title IX Advocate will facilitate a dialogue with the parties to an effective resolution, if possible. Sanctions are not possible as the result of a conflict resolution process, though the parties may agree to appropriate remedies. The Title IX/Equity/AA and ADA Coordinator will keep records of any resolution that is reached, and failure to abide by the accord can result in appropriate responsive actions. Conflict resolution will not be the primary resolution mechanism used to address allegations of sexual assault or violent behavior of any kind or in other cases of serious violations of policy, though it may be made available after the formal process is completed should the parties and the Title IX/Equity/AA and ADA Coordinator believe that it could be beneficial. It is not necessary to pursue conflict resolution first in order to make a formal allegation, and anyone participating in conflict resolution can stop that process at any time and request a formal incident review.
Resolution Without an Incident Review. Resolution without an incident review can be pursued for any behavior that falls within the policy on Equal Opportunity, Nondiscrimination, Harassment, Sexual Misconduct, and Relationship Violence at any time during the process. The Title IX/Equity/AA and ADA Coordinator will provide written notification of an allegation to any member of the University community who is accused of an offense of harassment, discrimination, sexual misconduct, relationship violence, or retaliation. The accused individual may choose to admit responsibility for all or part of the alleged policy violations at any point in the process. If so, the Title IX/Equity/AA and ADA Coordinator will find the individual in violation of University policy for the admitted conduct, and will normally proceed to convene a formal incident review on any remaining disputed violations. For admitted violations, the appropriate Title IX Advocate will recommend an appropriate sanction or responsive action. If the sanction/responsive action is accepted by both the accusing party and accused individual, the Title IX/Equity/AA and ADA Coordinator will implement it, and act promptly and effectively to remedy the effects of the admitted conduct upon the victim and the community. If either party rejects the sanction/responsive action, an incident review will be held on the sanction/responsive action, only, according to the procedures below, (with the exception of employees for whom responsive actions can be determined by the Director of Human Resources without an incident review, based on the findings of the investigation]. In the case of at-will employees, the results of investigations will be implemented by Human Resources without further process.
Formal Incident Review. For any allegations that are not appropriate for conflict resolution and which are not resolved without an incident review, the Title IX/Equity/AA and ADA Coordinator will resolve the allegation with the involvement of the Director of Human Resources.
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Incident Review. The Title IX/Equity/AA and ADA Coordinator will appoint an incident review officer, (depending on whether the accused individual is an employee or student) to an incident review. The incident review will take place at times determined by the incident review officer.
Notification of Charges. As far in advance as is reasonably possible, the incident review officer will send a letter to the parties with the following information:
- A description of the alleged violation(s), a description of the applicable procedures and a statement of the potential sanctions/responsive actions that could result;
- The time, date and location of the incident review and a reminder that attendance is mandatory, superseding all other campus activities. If any party does not appear at the scheduled incident review, the incident review will be held in their absence. For compelling reasons, the incident review officer may reschedule the incident review.
- The parties may have the assistance of an advocate, at the incident review. Typically, advocates are members of the campus community, but the Title IX/Equity/AA and ADA Coordinator may grant permission for an outside advocate upon request. The advocate may not be a practicing attorney (and no practicing attorney may be present at the incident review). The parties to the incident review are expected to ask and respond to questions on their own behalf, without representation by their adviser. The advocate may consult with the advisee quietly or in writing, or outside the incident review during breaks, but may not speak on behalf of the advisee to the incident review officer.
- Incident reviews for possible violations that occur near or after the end of an academic term will be held immediately after the end of the term or during the summer, as needed, to meet the resolution timeline followed by the University.
Once mailed, emailed and/or received in-person, notice will be presumptively delivered.
Incident Review Procedures. The incident review will be convened, usually within one to two weeks of the completion of the investigation, and will be conducted in private. The incident review officer has the authority to hear all collateral misconduct, meaning that the incident review officer hears all allegations of discrimination, harassment, sexual misconduct, relationship violence, and retaliation, but also may hear any additional alleged policy violations that have occurred in concert with the discrimination, harassment, or retaliation, even though those collateral allegations may not specifically fall within incident review officer jurisdiction. Accordingly, investigations should be conducted with as wide a scope as necessary.
Participants will include the incident review officer, the investigator who conducted the investigation on the allegation, the accusing party and accused individual(s), advocates to the parties, and any called witnesses. The incident review officer will exchange the names of witnesses the University intends to call, all pertinent documentary evidence, and any written findings from the investigator between the parties at least two business days prior to the incident review. In addition, the parties will be given a list of the names of each of the investigators at least two business days in advance of the incident review. Should either (any) party object to any investigator, he/she must raise all objections, in writing, to the incident review officer, immediately. Investigator(s) will only be unseated if the incident review officer concludes that their bias precludes an impartial incident review of the allegation. Additionally, any investigator who feels he/she cannot make an objective determination must recuse himself or herself from the proceedings when notified of the identity of the parties and all witnesses in advance of the incident review.
The incident review officer, in consultation with the parties and investigator, may decide in advance of the incident review that certain witnesses do not need to be physically present if their testimony can be adequately summarized by the investigator during the incident review. All parties will have ample opportunity to present facts and arguments in full and question all present witnesses during the incident review, though formal cross-examination is not used between the parties. If alternative questioning mechanisms are desired (screens, Skype, questions directed through the incident review officer, etc.), the parties should request them from the incident review officer at least two business days prior to the incident review.
Once the procedures are explained and the participants are introduced, the investigator may present the report of the investigation first, and be subject to questioning by the parties and the incident review officer. The investigator may be present during the entire incident review process, but only during deliberations at the request of the incident review officer. The findings of the investigation are not binding on the incident review officer though any undisputed conclusions of the investigation report will not be revisited, except as necessary to determine sanctions/responsive actions. Questions may be directed through the investigator(s) at the discretion of the incident review officer.
Formal rules of evidence will not apply. Any evidence that the incident review officer believes is relevant and credible may be considered, including history and pattern evidence. The incident review officer will address any evidentiary concerns prior to and/or during the incident review and may exclude irrelevant or immaterial evidence. The incident review officer will disregard evidence lacking in credibility. The incident review officer will determine all questions of procedure and evidence. Anyone appearing at the incident review to provide information will respond to questions on his/her own behalf.
Unless the incident review officer determines it is appropriate, no one will present information or raise questions concerning: (1) incidents not directly related to the possible violation unless they show a pattern, or (2) the sexual history of or the character of the victim/accusing party.
[Where issues of competency or job performance are concerned, the incident review officer will not substitute his or her judgment of competency or performance for the judgment of other appropriate campus officials; the function of the incident review officer is to determine whether those policies, processes, and criteria used in arriving at judgments of competency or performance were consistent with the University’s policies regarding harassment, nondiscrimination, sexual misconduct, and relationship violence].
There will be no observers at the incident review. The incident review officer may allow witnesses who have relevant information to appear at a portion of the incident review in order to respond to specific questions from the incident review officer or the parties involved. The incident review officer does not hear from character witnesses but will accept up to two letters supporting the character of the individuals involved.
In incident reviews involving more than one accused individual or in which two accusing parties have accused the same individual of substantially similar conduct, the standard procedure will be to hear the allegations jointly; however, the Title IX/Equity/AA and ADA Coordinator may permit an incident review pertinent to each accused individual to be conducted separately. In joint reviews, separate determinations of responsibility will be made for each accused individual.
Proceedings are private. All persons present at any time during the incident review are expected to maintain the privacy of the proceedings, subject to University consequences for failure to do so. While the contents of the incident review are private, the parties have discretion to share their own experiences if they so choose, and should discuss doing so with their advocates.
Decisions. The incident review officer will deliberate in closed session to determine whether the accused individual is responsible or not responsible for the violation(s) in question. The incident review officer will base his/her determination on a preponderance of the evidence (i.e., whether it is more likely than not that the accused individual committed each alleged violation). If an accused individual is found responsible, the incident review officer will recommend appropriate sanctions to the Title IX/Equity/AA and ADA Coordinator. The incident review officer will prepare a written deliberation report and deliver it to the Title IX/Equity/AA and ADA Coordinator, detailing the finding, the information cited by the incident review officer in support of the recommendation, and any information the incident review officer excluded from consideration and why. The report should conclude with any recommended sanctions. This report should not exceed two pages in length and must be submitted to the Title IX/Equity/AA and ADA Coordinator within two (2) days of the end of deliberations.
The incident review officer will inform the accused individual and accusing party of the final determination within 2-3 business days of the incident review. Notification will be made in writing and may be delivered by one or more of the following methods: in person; mailed to the local or permanent address of the parties as indicated in official University records; or emailed to the parties’ University-issued email account. Once mailed, emailed and/or received in-person, notice will be presumptively delivered.
Sanctions. Sanctions or responsive actions will be determined by the incident review officer. Factors considered when determining a sanction/responsive action may include:
- The nature, severity of, and circumstances surrounding the violation;
- An individual’s disciplinary history;
- Previous allegations or allegations involving similar conduct;
- Any other information deemed relevant by the incident review officer;
- The need for sanctions/responsive actions to bring an end to the discrimination, harassment, sexual misconduct, relationship violence, and/or retaliation;
- The need for sanctions/responsive actions to prevent the future recurrence of discrimination, harassment, sexual misconduct, relationship violence, and/or retaliation;
- The need to remedy the effects of the discrimination, harassment and/or retaliation on the victim and the community.
Student Sanctions. Responsive action for a student who has been found to be in violation of the discrimination, harassment, sexual misconduct, relationship violence, and/or retaliation policy includes, but is not limited to warning, suspension, or expulsion. A required educational program may accompany any of the sanctions listed above.
Employee Sanctions. Responsive actions for an employee who has engaged in harassment, discrimination, sexual misconduct, relationship violence, and/or retaliation include warning, required counseling, demotion, suspension with pay, suspension without pay, and termination.
g. Withdrawal or Resignation While Charges Pending
Students: The University does not permit a student to withdraw if that student has an allegation pending for violation of the policy on Equal Opportunity, Nondiscrimination, Harassment, Sexual Misconduct, Relationship Violence, or for charges under the Code of Student Conduct. Should a student decide to leave and not participate in the investigation and/or incident review, the process will nonetheless proceed in the student’s absence to a reasonable resolution and that student will not be permitted to return to University unless all sanctions have been satisfied.
Employees: Should an employee resign while charges are pending, the records of the Title IX/Equity/AA and ADA Coordinator will reflect that status, as will University responses to any future inquiries regarding employment references for that individual. The Title IX/Equity/AA and ADA Coordinator will act to promptly and effectively remedy the effects of the conduct upon the victim and the community.
h. Appeals
All appeals must be submitted in writing to the Title IX/Equity/AA and ADA Coordinator within three business days of the delivery of the written finding of the incident review officer. Any party may appeal, but appeals are limited to the following:
- A procedural error or omission occurred that significantly impacted the outcome of the incident review (e.g. substantiated bias, material deviation from established procedures, etc.).
- To consider new evidence, unavailable during the original incident review or investigation, that could substantially impact the original finding or sanction. A summary of this new evidence and its potential impact must be included.
- The sanctions that fall outside the range of sanctions the University has designated for this offense.
The original finding and sanction/responsive actions will stand if the appeal is not timely or is not based on the grounds listed above, and such a decision is final. When any party requests an appeal, the other party (parties) will be notified and joined in the appeal. The party requesting appeal must show that the grounds for an appeal request have been met, and the other party or parties may show the grounds have not been met, or that additional grounds are met. The original finding and sanction are presumed to have been decided reasonably and appropriately.
Additional principles governing the incident review of appeals include the following:
- Appeals decisions are to be deferential to the original decision, making changes to the finding only where there is clear error and to the sanction/responsive action only if there is a compelling justification to do so;
- Appeals are not intended to be full incident reviews of the allegation. In most cases, appeals are confined to a review of the written documentation or record of the original incident review, and pertinent documentation regarding the grounds for appeal. Appeals granted based on new evidence should normally be remanded to the original incident review officer for reconsideration. Other appeals may be remanded at the discretion of the Title IX/Equity/AA and ADA Coordinator or heard by the incident review officer.
- Sanctions imposed are implemented immediately unless the Title IX/Equity/AA and ADA Coordinator or designee stays their implementation in extraordinary circumstances, pending the outcome of the appeal;
- The Title IX/Equity/AA and ADA Coordinator will normally, after conferring with the incident review officer, render a written decision on the appeal to all parties within seven business days from incident review of the appeal.
- All parties should be informed of whether the grounds for an appeal are accepted and the results of the appeal decision;
- Once an appeal is decided, the outcome is final: further appeals are not permitted.
i. Failure to Complete Sanctions/Comply with Responsive Actions
All accused individuals are expected to comply with conduct sanctions/responsive/corrective actions within the time frame specified by the Title IX/Equity/AA and ADA Coordinator. Failure to follow through on conduct sanctions/responsive/corrective actions by the date specified, whether by refusal, neglect or any other reason, may result in additional sanctions/responsive/corrective actions and/or suspension, expulsion and/or termination from the University. A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX/Equity/AA and ADA Coordinator.
j. Records
In implementing this policy, records of all allegations, resolutions, and incident reviews will be kept by the Title IX/Equity/AA and ADA Coordinator indefinitely in the Title IX Coordinator database.
k. Statement of Accusing Party’s Rights
- To be treated with respect by University officials.
- To take advantage of campus support resources (such as Counseling Services, the Campus Ministry Office, and University Health Services for students, or EAP services for employees)
- To experience a safe living, educational, and work environment.
- To have an advocate during this process.
- To refuse to have an allegation resolved through conflict resolution procedures.
- To receive amnesty for minor student misconduct (such as alcohol or drug violations) that is ancillary to the incident.
- To be free from retaliation.
- To have allegations heard in substantial accordance with these procedures.
- To full participation of the injured party in any incident review process whether the injured party is serving as the accusing party or the University is serving as accusing party.
- To be informed in writing of the outcome/resolution of the allegation, sanctions where permissible, and the rationale for the outcome where permissible.
l. Statement of Accused individual’s Rights:
- To be treated with respect by University officials.
- To take advantage of campus support resources (such as Counseling Services, the Campus Ministry Office, and University Health Services for students, or EAP services for employees).
- To have an adviser advocate during this process.
- To refuse to have an allegation resolved through conflict resolution procedures.
- To have allegations heard in substantial accordance with these procedures.
- To be informed of the outcome/resolution of the allegation and the rationale for the outcome, in writing.
These policies and procedures will be reviewed and updated annually by the Title IX/Equity/AA and ADA Coordinator. The Title IX/Equity/AA Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party. However, the Title IX Coordinator may also vary procedures materially with notice upon determining that changes to law or regulation require policy or procedural alterations not reflected in this policy and procedure. Procedure in effect at the time of its implementation will apply. Policy in effect at the time of the offense will apply even if the policy is changed subsequently, unless the parties consent to be bound by the current policy.
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