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Title: Sexual Harassment, Unlawful Sex Discrimination, Sexual Violence, and Inappropriate Gender-Based Behavior (2-13)
Approval Date: March 26, 2012
Approved by: President's Council
A. UNIVERSITY POLICY
The university prohibits sexual harassment, which includes acts of sexual violence, against all persons involved in the campus community, including administrators, faculty, staff, students, visitors, vendors, contractors, and other third parties. In addition, Title VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972 prohibit sexual harassment in employment and in an academic setting respectively.
The university also prohibits unlawful sex discrimination and inappropriate gender-based behavior in the workplace or in an academic setting directed at another due to that person's gender. Inappropriate gender-based behavior is conduct which violates the Church Educational System Honor Code or the individual dignity of university personnel, students, or campus visitors, but which does not rise to the level of unlawful sexual harassment or unlawful gender-based discrimination.
Unlawful sex discrimination, including sexual harassment, and inappropriate gender-based behavior perpetrated by students, not acting as university employees, is also covered by this policy, which is implemented through the coordinated efforts of the Human Resources office and the Dean of Students office.
Any inappropriate behavior, as defined in this policy, may result in disciplinary sanctions.
This policy supersedes and takes precedence over any other university faculty or employee grievance policy or procedure.
The Dean of Students is the official Title IX Coordinator. BYU-Idaho's Human Resources office has been designated to do the staff work and to coordinate BYU-Idaho's efforts to eliminate sexual harassment and inappropriate gender-based behavior. Complaints of sexual harassment and inappropriate gender-based behavior may be made directly to the Human Resources office at Kimball 240 (496-1700) or to the Dean of Students office at Kimball 290 (496-9200) for student-related complaints.
B. SEXUAL HARASSMENT DEFINED
Sexual harassment, which includes acts of sexual violence, is contrary to the teachings of The Church of Jesus Christ of Latter-day Saints, the Church Educational System Honor Code, and applicable civil rights laws and regulations. Sexual harassment is demeaning and degrading. It affects an individual's self-worth and can have a negative effect at work or in class. The Church Educational System Honor Code requires that university personnel and students abide by the standards of Christian living taught by the Church both on and off campus. These include living a chaste and virtuous life, obeying the law, using clean language, respecting others, and supporting others in their commitment to comply with the Honor Code. (Church Educational System Honor Code Policy-2-2D).
Consistent with its mission to provide a university education in an atmosphere in harmony with the restored gospel of Jesus Christ and the religious exemptions granted to it by the United States Department of Education from certain Title IX regulations with respect to some gender-based standards and practices, Brigham Young University-Idaho is committed to maintaining an environment free of sexual harassment, where the dignity of each individual is recognized and respected. Accordingly, this policy prohibits sexual harassment against all persons within the university community, including administrators, faculty, staff, students, visitors, vendors, contractors, and other third parties.
Guidelines as to what constitutes unlawful sex discrimination have been developed by anti-discrimination agencies, such as the U.S. Equal Employment Opportunity Commission, and through United States Supreme Court decisions. The law forbids any treatment of an employee or student at the university that disadvantages the person only because that person is a man or a woman. In addition, any abusive, severe, and pervasive conduct directed to one gender in the workplace or in a university academic setting may be unlawful sexual harassment. The conduct does not necessarily have to relate to sexual activity.
Unlawful sexual harassment may be defined as unwelcome sexual advances, requests for sexual favors, or other visual, verbal, or physical conduct of a sexual nature. Sexual violence, which is a form of sexual harassment, refers to physical sexual acts perpetrated against a person's will or where the person is incapable of giving consent, and includes rape, sexual assault, sexual battery, and sexual coercion. Unlawful sexual harassment generally falls into two separate categories of "quid pro quo" and "hostile environment" sexual harassment.
1. Quid pro quo sexual harassment is present when:
a. there is an express or implied request or demand for sexual favors;
b. there is an express or implied threat to a tangible employment or academic benefit related to the employee's or student's acceptance or rejection of the request or demand; and
c. the person making the request or demand is in a position to implement the threat.
Thus, if a faculty member, employee, or student is forced to submit to sexual demands in exchange for continued employment or certain grades, or if the faculty member, employee, or student loses a job or receives a diminished grade due to failure to comply with sexual demands, then unlawful quid pro quo sexual harassment has occurred.
2. Hostile environment sexual harassment is conduct directed at a person due to gender which is so severe or pervasive that it substantially and negatively interferes with the ability of the person against whom the conduct is directed to perform employment or academic functions. To constitute unlawful hostile environment sexual harassment, the harassing conduct must be excessive, pervasive, severe, or part of a continuing pattern or practice. Occasional or sporadic offensive behavior of a mild nature is against university policy and subject to disciplinary action, even though the behavior may not rise to the level of unlawful hostile environment sexual harassment.
The fact that someone did not intend to sexually harass an individual is not necessarily a complete defense to a complaint of sexual harassment, although lack of intent is often considered a mitigating factor. In most cases, it is the effect and characteristics of the behavior that determine whether the behavior constitutes unlawful sexual harassment.
Further, acts of unlawful sexual harassment by persons outside the university, such as a vendor, against university personnel, students, or campus visitors will not be tolerated, and appropriate action will be taken at the discretion of the university administration. The investigation and disposition of allegations of unlawful sexual harassment perpetrated by non-student university personnel shall be governed by this policy and implemented by the BYU-Idaho Human Resources office.
C. UNLAWFUL SEX DISCRIMINATION AND INAPPROPRIATE GENDER-BASED BEHAVIOR
Brigham Young University-Idaho is committed to providing an academic and employment environment that is free from discrimination on the basis of gender. Gender-based discrimination will not be tolerated whether initiated by university faculty, administrative or staff personnel, students, or by third parties on the campus.
In addition, consistent with the Honor Code requirement that all members of the university community respect the personal rights of others, any violation of an individual's right to be free from abusive conduct which is gender related constitutes a serious violation of the Honor Code.
The university's definition of inappropriate gender-based behavior is any inappropriate behavior in the workplace or in the academic setting directed at another due to that person's gender and which violates the Honor Code or the individual dignity of university personnel, students, or campus visitors, but which does not rise to the level of unlawful sexual harassment. This policy creates a behavioral expectation of respect and appropriateness for all university personnel, students, and campus visitors. It does not create an independent basis for a claim against the university. The conduct does not necessarily have to be sexual in nature.
The following is a list of examples of inappropriate gender-based behavior. These behaviors, if severe and pervasive, could rise to the level of unlawful sexual harassment. These examples are not intended to be all inclusive:
Dating, romantic, or amorous relationships at the academic or work-related level between persons where a power differential exists (e.g., professor to student, teaching assistant to student, supervisor to employee or subordinate) should be avoided. If such a relationship exists, it should be approved by supervisors, and, as a general rule, not entered into or continued while one individual has the power to either reward or penalize the other.
University personnel or students who believe they have been subjected to inappropriate gender-based behavior should follow the procedure for reporting, investigation, and resolution as outlined in this policy.
Procedures related to sexual harassment, unlawful sex discrimination, sexual violence, and inappropriate gender-based behavior.
A. REPORTING EMPLOYEES AND CAMPUS VISITORS
Persons who believe they have been subject to unlawful sex discrimination or inappropriate gender-based behavior where the alleged perpetrator is an employee or a campus visitor should report the incident to the offender's line management, who will coordinate with the BYU-Idaho Human Resources office. An individual may, at any time, bypass management and report the incident directly to the Human Resources Director, 240 Kimball, (208) 496-1700, or seek the assistance of the Title IX Coordinator (Dean of Students) in making a report.
Administrators, deans, chairs, directors, managers, and supervisors are responsible for the university's Unlawful Sexual Harassment and Inappropriate Gender-Based Behavior Policies within their area of responsibility. However, they should contact the Human Resources office for assistance in resolving sexual harassment problems. Further, they should also notify the Human Resources office of the nature and resolution of any complaints to allow the university to track possible recurring problems. Members of the university community who engage in minor, isolated, or inadvertent misconduct in violation of this policy should be counseled by line management to assist them in understanding the discomfort and harm which may be caused by such behavior. Line managers will also document all corrective actions taken and maintain records through the Human Resources office.
B. REPORTING STUDENTS
All complaints of unlawful sex discrimination, including sexual violence, in which a student is the alleged perpetrator may be initially filed with either the Dean of Students, Kimball Building Room 290, 208-496-9200, or the Student Honor office, Kimball Building Room 270, 208-496-9300. In coordination with the Dean of Students, the Student Honor office will review and take appropriate action in respect to the alleged perpetrator's standing at the university. If this complaint involves employees or non-employee third parties, the Student Honor office will coordinate or refer to Human Resource office for investigation.
Upon receipt of a complaint, the Student Honor office will review and investigate the complaint. Each complaint will be resolved according to established Honor Code and university policies and procedures.
The Dean of Students office, the Student Honor office, and the Human Resources office will make appropriate cross referrals to each other.
C. DUTY TO REPORT
Personnel or students, who fail to report or to cooperate in the investigation of complaints of unlawful sexual harassment, including sexual violence, may be subject to appropriate disciplinary action. BYU-Idaho will take all reasonable steps to honor a complainant's request for confidentiality, provided it does not interfere with BYU-Idaho's ability to investigate and take corrective action. Filing of false charges of sexual harassment, including sexual violence, will be treated as a serious breach of the Honor Code and other university policies, subjecting the individual making the false accusations to appropriate disciplinary measures.
D. INVESTIGATION PROCESS
An adequate, reliable, and impartial investigation will be conducted in a prompt and equitable manner. If the alleged perpetrator/respondent is a student employed by the university and the alleged act occurred in the workplace, the investigation will be coordinated between the Human Resources office and the Student Honor office.
When the alleged perpetrator is a student whose alleged misconduct is not related to employment, the investigation will be handled through the Student Honor office.
Due to the sensitive nature of such allegations and the potential for irreparable damage to a person's reputation, all allegations will be investigated as confidentially as reasonably possible. The university will, in good faith, attempt to conclude the investigation within sixty (60) days of receiving the complaint. If, due to the complexity of the case or other mitigating facts and circumstances, the investigation cannot be concluded within the sixty (60) day period, the complainant and the respondent will be provided with notice of a specific time frame for concluding the investigation and a schedule for providing complainant and the respondent with periodic reports regarding the status of the investigation. Both the complainant and the respondent will be given notice of the outcome of the investigation.
E. RESOLUTION OF COMPLAINTS
Resolution of complaints of unlawful sex discrimination, except for incidents of sexual violence, may be sought through either an informal or formal grievance procedure. Reports of sexual violence will always require formal grievance procedures. The grievance procedure will be coordinated by the appropriate person designated Title IX Coordinator (The Dean of Students).
The informal procedure will be initiated through the immediate line management unless that person is involved in the alleged incident. In those cases the complainant may seek resolution through the next appropriate person in order of line management who will coordinate with the Human Resources Director. The objective of the informal grievance is to resolve the incident to the satisfaction of the complainant and to respondent quickly and confidentially. The line manager will provide corrective action sufficient to appropriately resolve the issue and will document all actions taken. The complainant is encouraged, but is not required, to use the informal procedure to resolve the incident prior to initiating a formal procedure and may end the informal process and begin the formal process at any time with the exception of incidents of sexual violence.
The formal procedure is initiated preferably with a written statement (although a verbal statement is also sufficient) of the incident to be provided to the Human Resources Director who will coordinate an investigation and attempt a resolution of the incident in cooperation with the dean or appropriate department administrator. If either party remains unsatisfied with the resolution, that person may request a review before the appropriate vice-president or associate academic vice president as determined appropriate by the university. Both parties will be given reasonably advanced notice of the review hearing time and place, and the review will be conducted in a fair, prompt, and equitable manner. In any event, both the complainant and the respondent shall be given fair opportunity to access relevant information and material in a timely manner prior to the review and shall have the further reasonable opportunity to present witnesses and evidence at the review, and to be represented at the hearing by legal counsel or other representative of their choice and at their expense. The preponderance of the evidence standard will be applied and the parties will not be permitted to question each other. The hearing officer will issue a decision to both parties within a reasonable period of time (typically within 15 days). An appeal may be made to the Human Resources Committee if the grievance remains unresolved.
In order to initiate the formal grievance procedure, the complainant should notify the Human Resources Director of the alleged incident within 180 calendar days of the occurrence of the incident. The university will, in good faith, attempt to conclude a formal procedure within 120 days of receipt of the complaint. If, due to the complexity of the case or other mitigating circumstances, the formal procedure cannot be concluded within this 120 day period, the complainant and the respondent will be provided with notice of the status of the matter and a specific time frame for concluding the procedure. A student should contact the Title IX Coordinator to discuss the incident if it occurred more than 180 days ago.
Complaints of unlawful sex discrimination, including sexual violence, in which the alleged perpetrator is a student, not acting in the capacity of a university employee, will be resolved according to established Student Honor policies and procedures designed to deal with Church Educational System Honor Code violations, provided, however, that at the review level the complainant and the respondent shall, in addition to the procedural and substantive rights established in the Dean of Students Review Process, also be given the right to be represented by legal counsel of their choice and at their expense for the purpose of advocating their interests.
Any violation of the Unlawful Gender Discrimination and Unlawful Sexual Harassment (including Sexual Violence) policies by employees, campus visitors, or students may result in disciplinary sanctions including, but not be limited to, termination from employment and/or immediate suspension, expulsion, being physically banned from the campus and/or such other penalties, sanctions, and impositions as may be appropriate and available to the university. In addition to any individual sanctions levied, BYU-Idaho will take the reasonable and necessary steps to correct the discriminatory effects on the complainant and on others, as appropriate, and to prevent the recurrence of the actions leading to the complaint.
G. VICTIM'S RIGHTS
A victim of unlawful sexual harassment, including sexual violence, has the right to initiate an internal grievance proceeding. Such a proceeding will be adjudicated by the designated Title IX Coordinator (The Dean of Students) based on the substantiated allegations that (a) the complainant has been a victim of sexual harassment, including sexual violence, by a member of the university community and that (b) the university has failed to take timely and effective action to remedy the matter.
External remedies may also be available to the victim under Title VII of the Civil Rights Act of 1964 and/or Title IX of the Educational Amendments of 1972. Moreover, victims are encouraged to report cases involving possible criminal misconduct to the appropriate law enforcement agencies.
Retaliation against an individual who has filed a complaint of unlawful sexual harassment, including sexual violence, will be considered a separate violation of policy and the retaliating person may be subject to sanction, including termination, suspension, dismissal and/or being banned from campus depending upon the circumstances and severity of the retaliation. Encouraging others to retaliate also violates this policy.