University of Mary Washington Sexual Harassment and Consensual Relations Policy
Policy Statement
Definition of Sexual Harassment
Examples of Sexual Harassment
Consensual Relationships
Introduction to Sexual Harassment Complaint Procedures
Informal Complaint Procedures
Formal Complaint Procedures
Related Issues
I. Policy Statement
The University of Mary Washington will not tolerate sexual harassment. Sexual harassment is a form of sexual discrimination and as such is illegal behavior. Moreover, sexual harassment would subvert the mission of the University by undermining the positive working and educational environment the University is committed to providing for all students, University personnel, and visitors.
The University's administrators and supervisors are responsible for taking reasonable steps to prevent and remedy sexual harassment. Such steps include educating the University community about the accompanying definitions and procedures, encouraging persons who think they have been sexually harassed to come forward, and vigorously pursuing violations of this policy.
II. Definition of Sexual Harassment
A. Sexual harassment is distinguished from consenting sexual behavior by the introduction of the element of coercion. In identifying incidents of sexual harassment, the University of Mary Washington follows guidelines set down by the Equal Employment Opportunity Commission in "EEOC Guidelines on Discrimination Because of Sex" (29 CFR Chapter XIV, 1604.11). The relevant guidelines, as modified slightly to fit an educational institution, are as follows:
Harassment on the basis of sex is a violation of Sec. 703 of Title VII [of the 1964 Civil Rights Act]. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or education], (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions [or educational decisions] affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work [or academic or extracurricular] performance or of creating an intimidating, hostile, or offensive working [or educational] environment.
As indicated by the definition above, a faculty member or supervisor may be guilty of sexual harassment if he or she unfairly exploits the power inherent in his or her relationship to students or subordinates. Sexual harassment may also take place in situations in which coercion is a factor between persons of the same status (e.g., student/student, faculty/faculty, staff/staff, administrator/administrator) or in which a subordinate acts coercively toward a person of higher position (e.g. a student toward a faculty member, an employee toward a supervisor). It may involve the behavior of a person of either sex against a person of the other or same sex.
Further, sexual harassment may involve acts that are not themselves coercive but that create an environment that is hostile, offensive, or intimidating for an individual who has to work or study there. Such sexually harassing acts thus may affect not only the person who is their target but also others in that setting who witness the acts.
B. The fact that someone did not intend to sexually harass another is generally not considered a defense to a complaint of sexual harassment. It is the effect and characteristics of the behavior that determine if the behavior constitutes sexual harassment. The University will consider charges of sexual harassment on a case by case basis. In determining whether conduct constitutes sexual harassment, the University will consider the facts of the incident or incidents as a whole, including the circumstances or context in which the incident(s) occurred.
III. Examples of Sexual Harassment
Listed below are some types of behaviors that, according to legal precedents, may constitute sexual harassment. This list is not exhaustive.
1. Physical molestations;
2. Threats or insinuations that a person's employment, wages, academic grade, promotional opportunities, classroom or work assignments or other conditions of employment or academic life may be adversely affected by not submitting to sexual advances;
3. Demands for sexual favors accompanied by implied or overt promises of preferential treatment with regard to an individual's employment or academic status;
4 . Offers of money or rewards for sex;
5. Unwelcome patting or pinching, constant brushing against another employee's or student's body, repeated brushes or touches;
6. Pressure for sexual activity, including repeated requests for social contacts after a person has indicated no interest;
7. Unwelcome and repeated verbal expressions of a sexual nature, including sexual commentaries about a person's body, dress, appearance, or sexual activities;
8. Unwelcome and repeated use of sexually degrading language, jokes, or innuendoes; unwelcome and repeated suggestive or insulting sounds or whistles; sexually suggestive phone calls;
9. Sexually suggestive objects, pictures, videotapes, audio recordings, or literature, placed in the work or study area, that may embarrass or offend individuals. Such material if used in an educational setting should be related to educational purposes.
IV. Consensual Relationships
A. Although consensual relationships between persons of different power levels (e.g., between a faculty member and a student or between a supervisor and an employee) do not constitute sexual harassment, they raise serious concerns and may lead to difficulties. Such relationships may give rise to claims of sexual harassment in one or more of the following cases:
1. Third parties are adversely affected in their academic or employment opportunities because of a consensual relationship between others.
2. A consensual relationship creates a hostile, offensive, or intimidating work or learning environment for third parties.
3. A consensual relationship ends, but one of the parties continues to pursue the relationship after being notified repeatedly that such conduct is no longer welcome. According to legal precedent, mutual consent may not be an adequate or acceptable defense against a charge of sexual harassment.
B. In a relationship that involves a power differential, the person in power (e.g., faculty, supervisor, etc.) must do the following:
1. Distance himself/herself from any decision that may reward or penalize the other individual.
2. Disclose the nature of the relationship to the appropriate administrative supervisor, who then will take steps to ensure equitable treatment for all concerned.
INTRODUCTION TO SEXUAL HARASSMENT COMPLAINT PROCEDURES
I. Scope of Procedures
A. These procedures cover cases where the alleged harasser is a University employee and the complainant is a student or University employee. All members of the University community, full-time and part-time, have the right to bring a complaint under these procedures.
B. These procedures do not apply to the following:
1. Alleged harassment by students; see Student Conduct Policy
2. Alleged harassment by persons from outside the University community (contractors, visitors, vendors, etc.); see AA/EEO Officer and/or University Police
II. Definition of University Community
For purposes of these procedures, the "University of Mary Washington community" refers to all students, teaching faculty, administrative faculty, classified staff, and hourly employees.
III. Options for Resolving Complaints
A person wishing to bring a sexual harassment complaint can use the informal procedure and/or formal procedures.
A. The purpose of the informal procedure is to resolve the complaint as quickly and simply as possible.
B. The purpose of the formal procedures is to resolve complaints through official channels. Sanctions are possible only through the formal procedures.
IV. Definition of Working Days
"Working days" refers to the normal work schedule (Monday-Friday, excluding official University holidays). If either party is a student or teaching faculty member, the procedures may be suspended during times when classes are not in session by written consent of both parties.
V. Multiple Complainants
For purposes of these procedures, the term "complainant" refers to one or more persons bringing a complaint against an individual.
VI. Confidentiality
Individuals involved in matters arising under these procedures will take all reasonable steps to ensure confidentiality. Names of the complainant and the alleged harasser will not be released without their consent. Breaches of confidentiality may be deemed to be a violation of this policy for University employees or a violation of the conduct policy for students.
INFORMAL COMPLAINT PROCEDURES
I. Purpose
A. The purpose of the informal complaint procedure is to resolve the complaint as quickly and simply as possible. The use of the informal complaint procedure is optional. It is not a prerequisite to exercising rights available to the complainant under the formal complaint procedures or other avenues of redress.
B. The University cannot take disciplinary action against an alleged harasser under the informal complaint procedure. Disciplinary action is a sanction available under the formal complaint procedures.
II. Procedure
A. The president annually appoints faculty, staff, and students from the University community to serve as contact persons under this policy. These individuals receive specific training on sexual harassment issues, including this policy, the handling of complaints, and the legal ramifications of sexual harassment. Complainants are encouraged to seek out one of the designated contact persons to address their concerns. Contact persons counsel complainants about the options available to them under this policy, hear specific complaints of sexual harassment, refer complainants to appropriate resources, and if requested by the complainant, assist in resolving informal complaints.
B. Resolutions of informal complaints may include a conversation between the contact person and the alleged harasser, a letter written to the alleged harasser, or other informal actions. Informal complaints do not require a written statement from the complainant. In no case will a contact person inform the alleged harasser of the complainant's identity without the written consent of the complainant.
C. The use of the informal complaint procedure does not preclude an individual from using the formal procedures.
Formal Complaint Procedures
I. Purpose
The purpose of formal complaint procedures is to resolve sexual harassment complaints through official channels.
II. Filing the Complaint
A. Formal complaints must be filed with the AA/EEO Officer within one calendar year from the date of the alleged harassment. The complainant must be (or must have been) a member of the University community at the time of the alleged harassment.
B. The complaint must be in writing and must be signed. It must describe the alleged behavior and state the remedy sought.
C. Within 3 working days of receiving the complaint, the AA/EEO officer will give the alleged harasser a copy of the complaint.
D. Within 10 working days of receiving this notification, the alleged harasser must submit a written response to the AA/EEO officer. During this same period, both parties may also submit written statements from witnesses or other persons involved in the case. The AA/EEO officer will provide copies of all documentation to the other party for review.
E. Following the submission of written materials, the complainant may decide to pursue either a negotiated settlement of the complaint or a panel procedure. Either party retains the right to refuse participation in a negotiated settlement and proceed to a panel procedure.
III. Negotiated Settlement Procedure
A. A complainant starts the negotiated settlement procedure by notifying the AA/EEO officer in writing. The officer immediately seeks the alleged harasser's willingness to pursue a negotiated settlement. The alleged harasser must respond in writing to this request within 5 working days. If the alleged harasser agrees to pursue a negotiated settlement, the AA/EEO officer has 20 working days to negotiate the settlement. If the alleged harasser does not respond or agree, the complainant may initiate the panel procedure.
B. The AA/EEO officer will meet separately with each party to discuss the complaint and the response, and to try to work out a settlement. Either party may also bring an advocate to his or her meetings with the AA/EEO officer. But the complainant and the alleged harasser will not meet face-to-face as part of the negotiations.
C. Any negotiated settlement must be approved in writing by the complainant as well as the alleged harasser, his/her supervisor, the AA/EEO officer, and any other appropriate administrators. If the appropriate administrators do not approve the settlement, the parties may elect to start the procedure over again, or they may initiate the panel procedure.
D. A complainant who pursues negotiated settlement reserves the right to the panel procedure if a settlement is not reached.
E. If a settlement is reached, the AA/EEO officer is responsible for implementing it. The AA/EEO officer will keep the complainant fully informed of the status of the settlement until its terms are satisfied. Should the complainant inquire in writing about the settlement's status at any time, the AA/EEO officer must respond in writing within 10 working days.
IV. Panel Procedure
A. Initiating the procedure
1. A complainant initiates the panel procedure by notifying the AA/EEO officer in writing.
2. The Provost chairs the panel. He/she informs both parties, in writing, of the time and place of their panel interviews.
B. Panel membership
1. At the beginning of each academic year, the Provost will generate a panel candidate pool, consisting of 35 full-time, continuing University employees chosen at random and proportionately representative of the teaching faculty, the classified staff, and the administrative faculty. These employees will receive training in sexual harassment law, policy, and procedures.
2. When a complainant initiates the panel procedure, the President will, within 5 working days, choose 15 persons from the candidate pool and send their names, in writing, to both parties.3. Within 5 working days from the President's notification, each party may disqualify up to two candidates from the President's list by notifying the President in writing.
4. Within 5 working days after receiving the names of disqualified candidates, the President will appoint a panel of five members from among the remaining candidates.
C. Panel Interviews and Recommendations
1. Within 15 working days from the assembly of the panel, the panel will interview each party. These interviews will take place separately, and each party may bring his/her advocate to the interview. The interviews are not intended to be conducted as a court proceeding, and the panel is not bound by the technical rules of evidence. Although the two parties will not face each other, each party will hear the interview of the other party via live audio. A record will be made of all panel interviews.
2. Each party may submit names of witnesses and/or additional written statements to the panel during this 15-day period. The parties may agree in writing to a reasonable extension of this time frame.
3. If the panel desires, the Provost may request written statements from the witnesses. The panel may decide to interview some or all of these witnesses, and each party will hear these interviews via live audio, if they so choose.
4. The panel may solicit additional information from the witnesses, alleged harasser, and/or the complainant, in order to make a decision.
5. Following the interviews and a review of the evidence, the panel will render a judgment by majority vote (3 votes). If, in the judgment of the panel, sexual harassment has occurred, the panel will recommend an action or actions, also by majority vote. The Provost only votes in case of a tie.
6. The Provost submits the panel's recommendation(s) to the President and the parties within 5 working days of the panel's decision(s). Recommended actions may include (but are not limited to) the following:
a. written warning
b. suspension
c. probation
d. termination
e. change of position or assignment
f. required attendance at a sexual harassment training program
g. required participation in counselingD. Resolutions
1. Either party may file a letter of exception with the President protesting the panel's recommendation(s) within 5 working days.
2. Within 5 additional working days, the President will inform both parties, in writing, of his or her decision(s).
3. If the President applies a sanction, the Provost will keep the complainant fully informed of the implementation of that sanction until all terms are satisfied. The complainant may write to the Provost regarding the implementation of the sanction, and the Provost must respond in writing within 10 working days.
Related Issues
I. Other Legal Recourse/Remedies
A. Members of the University community whose complaints are not resolved to their satisfaction through these procedures (or who have complaints which are not addressed herein) may use other avenues of redress available under the Civil Rights Act of 1964 or with the Commonwealth of Virginia.
B. Applicable federal law is found in Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Title VII, which addresses discrimination in employment, is under the auspices of the U.S. Equal Employment Opportunity Commission (EEOC); Title IX, which governs discrimination in educational programs and/or opportunities, falls under the auspices of the Office of Civil Rights of the U.S. Department of Education.
C. State law can be accessed by contacting the Virginia Office of Equal Employment Services regarding discrimination in employment, or the Virginia Council on Human Rights for other types of discrimination.
II. Other Forms of Discrimination
This policy addresses sexual harassment as a form of sex discrimination. For complaints of other types of discrimination, such as discrimination based on age, race, national origin, marital status, etc., contact the AA/EEO officer of the University for assistance.
III. Retaliation
Retaliation against an individual as a result of that person's seeking redress under this policy is expressly prohibited. Any person who thinks he/she has been the victim of retaliation should contact the AA/EEO officer of the University for assistance.
IV. False Allegations/Malicious Complaints
A person who knowingly makes a false sexual harassment allegation may be subject to disciplinary action in accordance with State and/or University policies and procedures.