OU Administrative Policies
and Procedures
371 Wilson Blvd., Suite 4000
Rochester ,
MI
48309-4482
(location map)
626 Policy Prohibiting Sex-based Harassment Involving a Student
SUBJECT: | POLICY PROHIBITING SEX-BASED HARASSMENT INVOLVING A STUDENT |
NUMBER: | 626 |
AUTHORIZING BODY: | TBD |
RESPONSIBLE OFFICE: | OFFICE OF TITLE IX AND EQUAL OPPORTUNITY COMPLIANCE |
DATE ISSUED: | AUGUST, 2024 |
LAST UPDATE: | AUGUST, 2024 |
LAST REVIEW: | AUGUST, 2024 |
POLICY: Section 1: Introduction and General Information1.1 Nondiscrimination Policy Statement: Oakland University (OU) does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX and its regulations, including in admission and employment. 1.2 Purpose: OU takes all reported discrimination on the basis of sex seriously. Sex-based harassment is a form of sex discrimination. OU will promptly discipline any individuals within its control who are found responsible for violating this Policy. 1.3 Applicability:
1.4: Title IX Coordinator and Title IX Designees: The Title IX Coordinator is the OU administrator who oversees OU’s compliance with Title IX. The Title IX Coordinator is responsible for the response to notifications of discrimination on the basis of sex, including sex-based harassment. The Title IX Coordinator is available to discuss the grievance procedures, coordinate supportive measures, modifications related to pregnancy and related conditions, explain OU’s policies and procedures, and provide education on relevant issues. The Title IX Coordinator may designate other employees to facilitate these responsibilities. Individuals may contact the Title IX Coordinator or designees with questions. The contact information for the Title IX Coordinator and designees is as follows: Name and Title: Chad Martinez, Title IX and Compliance Director Phone: (248) 370-2450 Email: [email protected] or [email protected] Office Location: Oakland Center, Suite 150, 312 Meadow Brook Rd., Rochester, MI Name and Title: Jessie Hurse, Associate Dean of Students & Deputy Title IX Coordinator Phone: (248) 270-3352 Email: [email protected] Office Location: Oakland Center, Suite 150, 312 Meadow Brook Rd., Rochester, MI 1.5 Communication: OU will use OU electronic mail (email) for purposes of communication under this Policy. 1.6 Free Speech: Constitutionally protected expression cannot be considered discrimination on the basis of sex under this Policy. 1.7 Dissemination of Policy of and Notice of Nondiscrimination: OU will publish the Notice of Nondiscrimination on its website and in each handbook, catalog, announcement, bulletin, and application form made available to students, parents/guardians, and employees, or which are otherwise used in connection with the recruitment of students. This posting will include a link to this Policy and reporting options. 1.8 Effective Date: The effective date of this Policy is August 29, 2024. Matters that occurred prior to August 29, 2024 will be resolved using the policy and procedures in place at the time of the alleged event. 1.9 False Reports, Statements, and Evidence: The OU Student Code of Conduct prohibits knowingly creating, furnishing, possessing or otherwise using any false, falsified or forged materials, documents, accounts, records, identification or financial instruments; or misrepresentation of documents submitted to any office, OU official or any individual acting on behalf of OU. Any student found to have engaged in this prohibited conduct during these grievance procedures may be subject to discipline pursuant to the Student Code of Conduct. Likewise, an employee found to have provided a false report, statement, or evidence during these grievance procedures may also be disciplined. 1.10 Amnesty: Reporting discrimination on the basis of sex and other inappropriate conduct is encouraged at OU. Thus, it is imperative that parties and witnesses share information without fear of potential consequences for minor violations of the Student Code of Conduct or other OU policies. OU offers parties and witnesses amnesty from the following minor violations when those violations involve reporting instances of – and/or proceedings relating to – discrimination on the basis of sex or other inappropriate conduct: drug or alcohol possession or consumption. However, an individual may be responsible for such violations if the conduct harmed or placed the health or safety of any other person at risk. After granting amnesty, OU may require educational opportunities for individuals in lieu of a finding of responsibility or punitive sanctions with the student or employee. This Section does not apply to reports to the police; rather, it applies only to discipline for violations of OU policies. See also http://work.airllevant.com/deanofstudents/student-code-of-conduct/medical-amnesty-provision/ 1.11 Other OU Policies: This Policy takes precedence over any other OU policies and procedures concerning discrimination on the basis of sex in the event of a conflict. 1.12: Modification and Review of this Policy: OU reserves the right to modify this Policy to take into account applicable legal requirements. OU will regularly review this Policy to determine whether modifications should be made. 1.13 Additional OU Policy Violations: Alleged violations of other OU policies that arise from the same events as the alleged discrimination on the basis of sex under this Policy will be investigated and resolved under the grievance procedures in this Policy unless the sex-based harassment has been dismissed under Section 5.4 of this Policy. 1.14 Standard of Proof: The burden rests with OU to determine whether a violation of this Policy occurred by a preponderance of the evidence (more likely than not). 1.15 Application: This Policy applies to all sex-based harassment occurring under OU’s education program or activity in the United States. Conduct that occurs under OU’s education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by OU, and conduct that is subject to OU’s disciplinary authority. OU has an obligation to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside of OU’s education program or activity or outside the United States. 1.16 Prohibited disclosure of personally identifiable information: OU will not disclose personally identifiable information obtained in the course of complying with this Policy and/or grievance procedures except in the following circumstances:
Section 2: Definitions2.1 Definitions of Prohibited Conduct Under this Policy 2.1.1 Sex-Based Harassment: A form of sex discrimination and means sexual harassment and other harassment on the basis of sex, including on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity, that is:
2.1.2 Sexual Assault: An offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation, including rape, fondling, incest, and statutory rape as defined in this Policy. 2.1.3 Rape[3]: The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. 2.1.4 Fondling[4]: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity. 2.1.5 Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. 2.1.6 Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent. 2.1.7 Dating Violence: Violence committed by a person:
2.1.8 Domestic Violence: Felony or misdemeanor crimes committed by a person who:
2.1.9 Stalking: Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
2.1.10 Retaliation, including Peer Retaliation: Intimidation, threats, coercion, or discrimination against any person by OU, a student, or an employee or other person authorized by OU to provide aid, benefit, or service under OU’s education program or activity, for the purpose of interfering with any right or privilege secured by Title IX or this Policy, or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy, including in an informal resolution process, in grievance procedures, and in any other actions taken by OU under this Policy. Nothing in this definition or this Policy precludes OU from requiring an employee or other person authorized by OU to provide aid, benefit, or service under OU’s education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing. 2.2 Definitions Related to Sex-Based Harassment: Consent, Course of Conduct, Incapacitation, Reasonable Person, Substantial Emotional Distress 2.2.1 Consent: Consent is affirmative, conscious, voluntary, and revocable. Consent to sexual activity requires of each person an affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person to ensure they have the affirmative consent of the other to engage in the sexual activity. Lack of protest, lack of resistance, or silence does not, alone, constitute consent. Affirmative consent must be ongoing and can be revoked at any time during sexual activity. The existence of a dating relationship or past sexual relations between the complainant and respondent will never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationship alone suffice as evidence of consent to prior conduct). The respondent’s belief that the complainant consented will not provide a valid defense unless the belief was actual and reasonable. In making this determination, the decisionmakers will consider all of the facts and circumstances the respondent knew, or reasonably should have known, at the time. In particular, the respondent’s belief is not a valid defense where:
2.2.2 Course of Conduct: Two or more acts, including, but not limited to, acts in which the individual directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property. 2.2.3 Incapacitation: A person lacks the ability to actively agree to sexual activity because the person is asleep, unconscious, under the influence of alcohol or other drugs such that the person does not have:
Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking, using drugs, or taking medication. A person violates this Policy when they engage in sexual activity with another person who is incapacitated and a reasonable person in the same situation would have known that the person is incapacitated. Incapacitation can be voluntary or involuntary. Signs of incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. 2.2.4 On the Basis of Sex (Scope): Includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 2.2.5 Reasonable Person: A reasonable person under similar circumstances and with similar identities to the victim. 2.2.6 Substantial Emotional Distress: Significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. 2.3 Other Defined Terms 2.3.1 Business Day: Any weekday not designated by OU as a holiday or administrative closure day. When calculating a time period of business days specified in this Policy, the business day of the event that triggers a time period is excluded. 2.3.2 Complainant: A student or employee of OU who is alleged to have been subjected to conduct that could constitute sex-based harassment; or a person other than a student or employee of OU who is alleged to have been subjected to conduct that could constitute sex-based harassment at a time when that individual was participating or attempting to participate in OU’s education program or activity. 2.3.3 Complaint: An oral or written request to OU that objectively can be understood as a request for OU to investigate and make a determination about alleged discrimination. 2.3.4 Confidential Employee:
2.3.5 Disciplinary Sanctions: Consequences imposed on a respondent following a determination under this Policy that the respondent violated OU’s prohibition on sex discrimination and/or sex-based harassment. 2.3.6 Education Program or Activity: Any academic, extracurricular, research, occupational training, or other education program or activity. 2.3.7 Impermissible Evidence: The following information must not be discussed, otherwise used, accessed or considered, even if relevant, except by OU to determine whether an exception exists.
2.3.8 Party: A complainant or respondent. 2.3.9 Pregnancy or Related Conditions:
2.3.10 Relevant: Related to the allegations of sex-based harassment under investigation as part of the grievance procedures. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex-based harassment occurred, and evidence is relevant when it may aid the decisionmakers in determining whether the alleged sex-based harassment occurred. 2.3.11 Remedies: Measures provided, as appropriate, to a complainant or any other person OU identifies as having had their equal access to OU’s education program or activity limited or denied by sex-based harassment. These measures are provided to restore or preserve that person’s access to OU’s education program or activity after OU determines that sex-based harassment occurred. 2.3.12 Respondent: A person who is alleged to have violated OU’s prohibition on sex-based harassment. 2.3.13 Student: A person who has gained admission. 2.3.14 Student with a Disability: A student who is an individual with a disability as defined in the Rehabilitation Act of 1973, as amended, 29 U.S.C. 705(9)(B), (20)(B), including without limitation an individual registered with OU’s Disability Support Services office, or a child with a disability as defined in the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3). 2.3.15 Supportive Measures: Individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a complainant or respondent, not for punitive or disciplinary reasons, and without fee or charge to the complainant or respondent to:
Section 3: Reporting Sex-Based Harassment and Preservation of Evidence3.1 Reporting to OU 3.1.1 Reporting to/ Notifying the Title IX Coordinator: Reports of sex-based harassment may be made to the Title IX Coordinator. The Title IX Coordinator may be notified at any time by email, phone, online form (http://cm.maxient.com/reportingform.php?OaklandUniv&layout_id=2), or mail. Notifications may be made in person during business hours. The Title IX Coordinator will promptly respond by offering supportive measures regardless of whether a complaint is initiated. 3.1.2 Reporting to All Employees Who are Not Designated as Confidential Employees: If any employee who is not designated as a confidential employee has information about conduct that may reasonably constitute sex-based harassment, the employee must notify the Title IX Coordinator. 3.1.3 Reporting to Confidential Employees: Confidential employees at OU include the following: OU Counseling Center (for students) Reports made to confidential employees are considered confidential reports. The confidential employee must explain the following to a person who informs them of conduct that reasonably may constitute sex-based harassment.
3.1.4 Public Awareness Events: When the Title IX Coordinator is notified of information that may reasonably constitute sex-based harassment that was provided during a public event to raise awareness about sex-based harassment that was held on OU’s campus or through an online platform sponsored by OU, OU is not obligated to act in response to the information unless it indicates an imminent and serious threat to the health or safety of a complainant, any students, employees, or other individuals. However, OU must use the information to inform its efforts to prevent sex-based harassment. 3.1.5 Anonymous and Confidential Reporting: Anonymous reports may be made to the Title IX Coordinator by email, phone, online form (http://cm.maxient.com/reportingform.php?OaklandUniv&layout_id=2), or mail. A decision to remain anonymous, however, may greatly limit OU’s ability to stop the alleged conduct, collect evidence, or take action against parties accused of violating this Policy. Individuals may file a report with the Title IX Coordinator and request to remain confidential. OU will evaluate the ability to afford confidentiality. However, doing so may greatly limit OU’s ability to stop the alleged conduct, collect evidence, or take action against parties accused of violating this Policy. 3.2 Reporting to Law Enforcement: Reports may be filed with campus and local law enforcement agencies. The Title IX Coordinator can assist with contacting law enforcement agencies. Law enforcement investigations are separate and distinct from OU investigations. Oakland University Police Department Auburn Hills P.D. Oakland County Sheriff's Office Macomb County Sheriff's Office Macomb Community College Police 3.3 Reporting to Outside Agencies: Reports may be made by students, employees, and others participating or attempting to participate in OU’s education program or activity to external agencies: Office for Civil Rights Michigan Department of Health and Human Services Michigan Department of Civil Rights U.S. Equal Employment Opportunity Commission (employees only) 3.4 Confidential Support and Resources: 3.4.1 OU Confidential Resources (see also § 3.1.3 above): Uwill, Student Mental Health and Wellness, (833) 646-1526 Ulliance, Employee Life Advisor EAP, (800) 448-8326 3.4.1 Community Resources: Graham Health Center HAVEN Turning Point Common Ground Sanctuary Victim Assistance Program Ascension Providence Hospital St. Joseph’s Hospital 3.4.2 State Resources: State of Michigan Michigan Domestic Violence Hotline 3.4.3 National Resources: National Sexual Assault Hotline National Domestic Violence Hotline 3.5 Time Limits on Reporting: There are no time limits on reporting sex-based harassment to the Title IX Coordinator or OU. If the respondent is no longer subject to OU’s education program or activity or significant time has passed, OU may have limited ability to investigate, respond, and/or provide remedies and sanctions. See Section 5.4 below. 3.6 OU’s Federal Reporting Obligations: Certain OU employees, called Campus Security Authorities, have a duty to report certain incidents of misconduct to comply with the Clery Act. Campus Security Authorities are not required to report personally identifiable information for Clery Act purposes, but statistical information must be sent regarding the type of incident that occurred and its general location (e.g., on or off-campus) for publication in an annual report of crime statistics, called the Annual Security Report. Statistics published in the Annual Security Report help to provide the campus community with a clearer picture of the extent and nature of campus crime, but the statistics do not personally identify complainants or respondents. Reports by Campus Security Authorities are not official police reports and do not initiate criminal investigations. When sexual assault, domestic violence, dating violence, and/or stalking are reported under the Clery Act, OU must issue timely warnings for such incidents that pose a serious or continuing threat of bodily harm or danger to members of the campus community. OU will not disclose a complainant’s name and other identifying information in a timely warning but will provide sufficient information for OU community members to make informed safety decisions in response to potential danger. 3.7 Preservation of Evidence: OU recognizes that a complainant may need time to decide whether to report an incident of sex-based harassment to the police and/or OU. The purpose of this section is to provide complainants with suggestions on preserving evidence while they decide whether to report an incident. OU encourages complainants, as soon as possible after experiencing sex-based harassment, to take steps to preserve evidence such as:
Section 4: Grievance Procedures - Evaluation and Supportive Measures4.1 Initial Response to Notification of Sex-Based Harassment: Upon notification of conduct that reasonably may constitute sex-based harassment, the Title IX Coordinator will promptly contact the complainant regardless of whether the complainant was the individual who initiated the notification. During the initial contact with the complainant the Title IX Coordinator will:
4.2 Supportive Measures: Supportive measures must be offered and coordinated by OU. Supportive measures must not unreasonably burden either party and must be designed to protect the safety of the parties or OU’s educational environment, or to provide support during OU’s grievance procedures or during the informal resolution process. OU must not impose such measures for punitive or disciplinary reasons. Supportive measures may differ based on what OU deems to be reasonably available. Examples of supportive measures include, but are not limited to:
Supportive measures may be modified or terminated at the conclusion of the grievance procedures or at the conclusion of the informal resolution process or OU may continue with the supportive measures indefinitely. 4.2.1 Supportive Measures Review: Complainants or respondents may seek modification or reversal of OU’s decision to provide, deny, modify, or terminate supportive measures applicable to them. An impartial employee will have authority to modify or reverse the decision if that person determines that the decision to provide, deny, modify, or terminate the supportive measure was inconsistent with the definition of supportive measures in this Policy. The parties will be provided with additional opportunity to seek additional modification or termination of a supportive measure applicable to them if circumstances change materially. Request for review of supportive measures must be made in writing to:
Upon receipt of a request for review, the reviewer will evaluate the request and provide a written response with their determination as to whether the prior decision to provide, deny, modify, or terminate the supportive measure was inconsistent with the definition of supportive measures in this Policy, within 5 business days. An extension of this time frame may occur for good cause. Written notice will be provided to the parties of any extension of the time frames with an explanation of the reasons for such action. 4.2.2 Privacy of Supportive Measures Information: OU will not disclose information about any supportive measures to individuals other than the person to whom they apply, including informing one party of supportive measures provided to another party, unless necessary to provide the supportive measure, restore or preserve a party’s access to the education program or activity, or unless one of the exceptions in 1.1.6 applies. 4.2.3. Consultation for Individual with Disability: If the complainant or respondent has a disability, the Title IX Coordinator may consult, as appropriate, with OU’s Disability Support Services office in the implementation of supportive measures, including as to any supports or accommodations to be provided to enable full participation in the grievance process. The Title IX coordinator may also arrange for similar supportive measures or accommodations for employees. Section 5: ComplaintOU will use the grievance procedures or the informal resolution process for all allegations of sex-based harassment in a complaint. 5.1 Initiating a Complaint: A complaint must be an oral or written request to OU that can objectively be understood as a request for OU to investigate and make a determination about alleged sex-based harassment. The following persons have a right to initiate a complaint alleging sex-based harassment:
5.2 Title IX Coordinator Considerations for Initiating a Complaint: In the absence of a complaint or the withdrawal of all or some of the allegations in a complaint, the Title IX Coordinator must determine whether to initiate a complaint of sex-based harassment. The Title IX Coordinator must consider, at a minimum the following factors:
5.2.1 Notification of Complainant: If the Title IX Coordinator initiates a complaint, the Title IX Coordinator must notify the complainant prior to doing so and appropriately address reasonable concerns about the complainant’s safety or the safety of others, including providing additional supportive measures. 5.3 Response Regardless of Whether Complaint is Initiated: Regardless of whether a complaint is initiated, the Title IX Coordinator will take other appropriate, prompt and effective steps, in addition to steps necessary to effectuate remedies provided to an individual complainant, if any, to ensure that sex-based harassment does not continue to recur within OU’s education program or activity. 5.4 Dismissal of a Complaint: OU may dismiss a complaint of sex-based harassment for any of the following reasons:
5.4.1 Notification of Dismissal of a Complaint: Upon dismissal, OU will promptly notify the complainant of the basis for the dismissal in writing. If the dismissal occurs after the respondent has been notified of the allegations, then OU will simultaneously notify the respondent of the dismissal and the basis for the dismissal. 5.4.2 Appeal of Dismissal of a Complaint: OU will notify the complainant that a dismissal may be appealed. If the dismissal occurs after the respondent has been notified of the allegations, then OU will also notify the respondent that the dismissal may be appealed. The complainant and respondent (if respondent has been notified of the allegations) may appeal on the bases set forth in section 10. The appeal process set forth in section 10 shall be followed. 5.4.3 After Dismissal of Complaint: If OU dismisses a complaint, OU will, at a minimum:
5.5 Consolidation of Complaints: OU may consolidate complaints of sex-based harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against another party, when the allegations of sex-based harassment arise out of the same facts or circumstances. Section 6: Grievance Procedures - General Requirements6.1 Equitable Procedures: The grievance procedures within this Policy are designed to treat complainants and respondents equitably. 6.1.1 Burden of Proof and Burden of Gathering Evidence: All investigations and proceedings, including hearings, relating to sex-based harassment will be conducted using a “preponderance of the evidence” (more likely than not) standard. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibly rest on OU not the parties. 6.1.2 Presumption of Not Responsible: The respondent is presumed to be not responsible for the alleged conduct until a determination regarding responsibility is made at the end of the grievance procedures. 6.1.3 Time Frames for Grievance Procedures: OU strives to complete the grievance procedures within one hundred twenty (120) business days. OU strives to complete the evaluation period within five (5) business days after meeting with the complainant, the investigation period within sixty (60) business days after initiation of complaint, the determination period within thirty (30) business days, and the appeal within twenty-five (25) business days of receipt of the appeal. Temporary delays and/or extensions of the time frames within this Policy may occur for good cause. Written notice will be provided to the parties of the delay and/or extension of the time frames with an explanation of the reasons for such action. Examples of good cause for delay/extensions include, but are not limited to, considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. 6.1.4 Range of Disciplinary Sanctions: Sanctions that may be required if an individual is found responsible for violating this Policy include, but are not limited to: For Students:
For Employees:
6.1.5 Prohibition Against Bias or Conflict of Interest: The Title IX Coordinator, investigator, decisionmakers, or appellate decisionmaker must not have a bias for or against complainants or respondents generally or an individual complainant or respondent. 6.1.6 Privacy Protection: OU will take reasonable steps to protect the privacy of the parties and witnesses during the pendency of the grievance procedures, provided that the steps do not restrict the ability of the parties to: obtain and present evidence, including by speaking to witnesses, consulting with their family members, confidential resources, or advisors; or otherwise prepare for or participating in the grievance procedures. 6.1.7 Objective Evaluation of Evidence: OU will conduct an objective evaluation of all evidence that is relevant and not otherwise impermissible, including both inculpatory and exculpatory evidence. Credibility determinations must not be based on a person’s status as a complainant, respondent, or witness. Section 7: Grievance Procedures - InvestigationOU will conduct an investigation following a complaint and notice of allegations. Investigations involve interviews with all relevant parties and witnesses and obtaining relevant and not otherwise impermissible evidence. OU may contract an individual external to OU to perform the investigation. Although in person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break, virtual campus) may require individuals to be interviewed remotely. Google Meet, WebEx, or similar technologies may be used for interviews if the investigator(s) determine that timeliness or efficiency dictate a need for remote interviewing. 7.1 Notice of Investigations: Upon initiation of OU’s grievance procedures, OU will provide notice of the allegations to the parties whose identities are known which includes:
7.1.1 Updating Notice of Allegations: If, in the course of an investigation, OU decides to investigate additional allegations of sex-based harassment by the respondent toward the complainant that are not included in the notice of allegations or that are included in a complaint that is consolidated, OU will provide notice of the additional allegations to the parties whose identities are known. 7.1.2 Reasonable Delay of Notice of Allegations to Address Safety: If OU has reasonable concerns for the safety of any person as a result of providing this notice, OU may reasonably delay providing written notice of the allegations in order to address the safety concerns appropriately. Reasonable concerns will be based on individualized safety and risk analysis and not on mere speculation or stereotypes. 7.2 Burden: OU will ensure that the burden is on OU—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether sex-based harassment occurred. 7.3. Witnesses and Evidence: OU will provide an equal opportunity for the parties to present fact witnesses and other inculpatory and exculpatory evidence that are relevant and not otherwise impermissible. OU has discretion to determine whether parties may present expert witnesses and will make that determination equally to the parties. 7.4 Unauthorized Access: OU will take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through the grievance procedures. Disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex-based harassment are authorized. 7.5 Written Notice of Meetings: Parties and witnesses will be provided notice of any meeting, interview, and/or hearing when their presence is invited or expected with sufficient time to prepare to participate. This notice will include the date, time, location, participants, and purposes of the meeting or proceeding. 7.6 Advisor of Choice: Parties may be accompanied to any meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. The advisor’s role is limited to assisting, advising, and/or supporting a complainant or respondent. An advisor is not permitted to speak for or on behalf of a complainant or respondent or appear in lieu of a complainant or respondent. OU may establish restrictions regarding the extent to which the advisor may participate in the grievance procedures, but the restrictions will apply equally to the parties. Each party is required to have an advisor at the live hearing. If a party does not have an advisor for purposes of the hearing, OU will appoint the party with an advisor without fee or charge. During the live hearing, the advisor is permitted to ask relevant and not otherwise impermissible questions and follow-up questions orally, directly, and in real time of participants, as set forth in section 9.1.4. 7.7 Expert Witnesses: OU has discretion to determine whether parties may present expert witnesses and will make that determination equally to the parties. OU will not use any medical experts that have an actual or apparent conflict of interest. Section 8: Grievance Procedures - Review of EvidenceOU will provide an equal opportunity to the parties and their advisors to access the relevant and not otherwise impermissible evidence. The parties will be provided a reasonable opportunity to respond to the evidence. Upon receipt of the evidence, the parties will have ten (10) business days to review and provide a written response to the evidence. The opportunity to review and respond will occur prior to the live hearing. Section 9: Grievance Procedures - Determination (Live Hearing)9.1 Live Hearing: At the conclusion of the investigation and review of the evidence, OU will provide for a live hearing. The hearing may occur in person or virtually. OU will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decisionmakers and parties to simultaneously see and hear the other party or witness answering questions. Each party is required to have an advisor at the live hearing. If a party does not have an advisor for purposes of the hearing, OU will appoint the party with an advisor without fee or charge. 9.1.1 Recording of the Live Hearing: OU will create an audio or audiovisual recording of all live hearings (but not deliberations) and make the recording or a transcript of the hearing available to the parties for inspection or review. The parties may not record the hearing and no other unauthorized recordings are permitted. 9.1.2 Pre-Hearing Matters: In order to streamline the hearing process, the decisionmakers may request the submission of questions prior to the hearing through electronic submission and/or a pre-hearing conference.
9.1.3 Hearing Process and Phases: The live hearing will be conducted. OU may adopt rules of decorum for the hearing procedures. The live hearing will include the following phases:
9.2 Deliberation and Determination: At the conclusion of the hearing, the decisionmakers will deliberate in closed session to determine whether the respondent is responsible or not responsible for the alleged policy violation(s). A simple majority vote is required to determine the finding. The Chair will then prepare a written determination which will include:
The Chair will provide the written determination to the Title IX Coordinator within ten (10) business days of the end of deliberations. Within three (3) business days of receiving the written determination, the Title IX Coordinator will simultaneously notify the parties in writing of the determination whether sex-based harassment occurred. 9.2.1 Remedies and Disciplinary Sanctions: If there is a determination that sex-based harassment occurred, as appropriate, the decisionmakers shall also determine any disciplinary sanctions. In determining disciplinary sanctions, the decisionmakers may consult with the Title IX Coordinator, Human Resources, the Dean of Students, or any other necessary OU individual or office. Disciplinary sanctions will be imposed in accordance with applicable collective bargaining agreements, employment contracts, or employment policy, if any. If the complainant is a student, and upon a finding of responsibility, the Dean of Students or his/her designee will determine any remedies for the complainant and other persons identified as having had equal access to OU’s education program or activity limited or denied by sex-based harassment. If the complainant is an employee, and upon a finding or responsibility, the Vice President for Human Resources or his/her designee will determine and implement any remedies for the complainant and any other persons identified as having had equal access to OU’s education program or activity limited or denied by sex-based harassment. The Title IX Coordinator or their designee will coordinate the imposition of any disciplinary sanctions and the implementation of any remedies and will take other appropriate prompt and effective steps to ensure that sex-based harassment does not continue or recur. 9.2.2 Finality of Determination: The determination regarding responsibility becomes final either on the date OU provides the parties with the written determination of the result of any appeal, or, if no party appeals, the date on which an appeal would no longer be considered timely. 9.2.3 Discipline Outside of Grievance Procedures: OU will not impose discipline on a respondent for sex-based harassment prohibited by Title IX unless there is a determination at the conclusion of the grievance procedures that the respondent engaged in prohibited sex-based harassment. OU will not discipline a party, witness, or others participating in OU’s grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the determination whether sex-based harassment occurred. Section 10: AppealsAppeals are offered to both parties equitably to challenge the determination as to whether sex-based harassment occurred and the dismissal of a complaint and/or any allegation therein. Appeals must be filed within five (5) business days of the dismissal or determination. 10.1 Bases for Appeal: Appeals may be made on the following bases:
10.2 Content of Appeal: The appeal must state the grounds for the appeal and the disposition the party seeks as a result of the appeal. If the appeal is based on a procedural irregularity, the appeal should specify in detail what the procedural irregularity was and how it changed the outcome. If the appeal is based on new evidence, the appeal should specify in detail what the new evidence is, how it affects the matter, and why it was not presented during the investigation or at the hearing. The new evidence should also be included with the appeal. If the appeal is based on a conflict of interest or bias, examples of objective conflict or bias must be presented with an explanation of how it affected the outcome. 10.3 Process when an Appeal is Filed: If a dismissal or determination is appealed, OU will:
OU may contract an individual external to OU to perform the role of appellate decisionmaker; otherwise, OU’s Vice Senior Vice President for Student Affairs or his/her successor will perform the role of decisionmaker if the respondent is a student and the Vice President for Human Resources will perform the role of decisionmaker if the respondent is an employee. 10.4 Appeal Outcomes: On appeal, the decision maker may: (i) uphold the decision; (ii) reverse the decision; and/or (iii) remand the matter for additional investigation, a new or additional hearing and/or additional proceedings. Section 11: Informal ResolutionAt any time prior to determining whether sex-based harassment occurred, the parties may agree, with the support of the Title IX Coordinator, to participate in an informal resolution process facilitated by OU, that does not involve the grievance procedures. OU will not require or pressure the parties to participate in an informal resolution process and will not require waiver of the right to an investigation and determination of a complaint as a condition of enrollment, continuing enrollment, employment, continuing employment, or exercise of any other right. The facilitator for the informal resolution process will not be the same person as the investigator or any of the decisionmakers in the grievance procedures. Types of informal resolution include, but are not limited to, mediation, facilitated dialogue, conflict coaching, restorative justice, and resolution by agreement of the parties. 11.1 Discretion of Title IX Coordinator: The Title IX Coordinator has discretion to determine whether it is appropriate to offer an informal resolution and may decline to offer informal resolution despite one or more of the party’s wishes. When determining whether to offer informal resolution, the Title IX Coordinator will consider whether the alleged conduct presents a future risk of harm to others. 11.2 Informal Resolution Notice: Prior to the initiation of the informal resolution process, OU will provide the parties written notice that explains:
11.3 Potential Informal Resolution Terms: Potential terms that may be included in an informal resolution agreement include but are not limited to:
Section 12: Emergency Removal and Administrative Leave12.1 Emergency Removal: At any time after the Title IX Coordinator is on notice of sex-based harassment, OU may remove a respondent on an emergency basis. OU will only conduct an emergency removal after:
12.2 Administrative Leave: OU may place an employee respondent on administrative leave during the pendency of the grievance procedures in this Policy. Section 13: RecordkeepingThe following records will be maintained by OU for at least seven (7) years:
[1] For all other allegations of sex discrimination involving students, the Policy Prohibiting Sex Discrimination applies. [2] When all parties to a sex-based harassment allegation are employees, and/or non-employees who are participating in an OU education program or activity, the Policy Prohibiting Sex Discrimination applies. For all other allegations of sex discrimination involving employees and/or non-employees who are participating in an OU education program or activity, the Policy Prohibiting Sex Discrimination applies. [3] Rape as defined in the uniform crime reporting system (UCR) includes: Forcible Rape: The carnal knowledge of a person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity. Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. Sexual Assault with an Object: To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. [4] Fondling is referred to as Forcible Fondling in the UCR. |