Ohio Administrative Code › Title 3337 - Ohio University › Chapter 3337-3 - Faculty Governance › Section 3337-3-04 - Sexual harassment and other sexual misconduct

Current through all regulations passed and filed through July 1, 2024
(A)
			 Rationale for policy
Ohio university is committed to providing a workplace,
				educational environment, and programs and activities  free from sexual harassment and other
				sexual misconduct.
To affirm its commitment to fairness and
				
									equity and 
				ensure compliance with federal and state laws and regulations, Ohio university
				has developed this policy and related processes 
									to inform
				members of the university community about prohibited behavior; provide
				supportive measures designed to remediate the effects of sexual harassment and
				other sexual misconduct; and provide a prompt, fair, and impartial process to
				address alleged violations of this policy.
(B) Basis for policy
For purposes of this policy, "sexual harassment and other
				sexual misconduct" includes sexual harassment and sexual assault, domestic
				violence and dating violence, stalking, and retaliation. These behaviors are
				prohibited as unlawful discriminatory conduct under Title VII of the Civil
				Rights Act of 1964 (as amended), Title IX of the Education Amendments of 1972,
				the Violence Against Women Act Reauthorization
				Act of 
									2022 (VAWA), the Campus Sexual Violence Elimination
				Act (Campus SaVE Act), and/or the Jeanne Clery disclosure of Campus Security
				Policy and Campus Crime Statistics Act (Clery Act). "Sexual harassment and
				other sexual misconduct," for the purposes of this policy, also includes sexual
				exploitation. Additionally, this policy contains a statement regarding
				consensual relationships in which one party retains a direct supervisory or
				evaluative role over the other party.
While sexual harassment and other sexual misconduct are forms
				of sex-based discriminatory conduct, discrimination on the basis of sex, gender
				gender identity or expression, and sexual orientation is prohibited in all
				 forms by Ohio university under
				university policy 40.001: "Equal Employment and Educational
				Opportunity."
(C)
			 Applicable scope and jurisdiction of policy
The expectations for conduct contained within this policy apply
				to all aspects of Ohio university's operations, locations, and programs
				including, but not limited to, regional campuses, property owned or controlled
				by the university; online programs; university-sponsored events, activities and
				travel; and in buildings owned or controlled by student organizations
				recognized by Ohio university.
These expectations apply to all members of the Ohio university
				community, which includes, but is not limited to, students, student
				organizations and student groups, faculty, administrators, staff, trustees and
				officers, and third parties such as agents, vendors, guests, visitors,
				volunteers, and campers.
Any person may
				submit reports of prohibited behavior. Further, this policy encourages,
				and in some cases requires, reports of sexual harassment and other sexual
				misconduct regardless of where the incident occurred.
A violation of this policy by a student, student organization,
				or student group would also 
									violate the student code of conduct.
				The Ohio university student code of conduct applies to all students, student
				organizations, and student groups whether the prohibited behavior occurred on
				or off campus; therefore, this policy applies to prohibited behavior by
				students, student organizations, and students groups whether it occurs
				on-campus or off-campus. Further, allegations of other conduct prohibited by
				the student code of conduct may be investigated and adjudicated through the
				sexual harassment and other sexual misconduct grievance process in conjunction
				with the violations of this policy.
Reports of prohibited behavior by faculty, administrators,
				staff, trustees, and officers will be assessed by the Title IX coordinator to
				determine if the alleged behavior occurred within Ohio university's operations,
				locations, and programs, as described in this paragraph, or if the alleged
				behavior, if true, may have effectively denied the complainant equal access to
				education or employment at Ohio university. If either circumstance exists, this
				policy will apply whether the behavior occurred on-campus or off-campus.
If the respondent in a reported violation of this policy is a
				student, student organization or group, faculty member, administrator, staff
				member, trustee, or officer, the grievance process described in this policy may
				be utilized regardless of the status of the complainant. Reports of prohibited
				on the part of third parties such as agents, vendors, guests, visitors,
				volunteers, and campers will be assessed by the Title IX coordinator to
				determine the best means to stop the behavior, such as barring individuals from
				university property or events, among other possible actions. If the respondent
				is unknown or is not a member of the university community, the university will
				not be able to utilize the grievance process; however, resources and other
				supportive measures will be offered to the complainant by the Title IX
				coordinator.
Ohio university will respond to reports of sexual harassment or
				other sexual misconduct irrespective of when the alleged incident  occurred, including during semester breaks, leaves of absence, or
				periods of dismissal. There is no time limit on making a report or submitting a
				formal complaint to the Title IX coordinator; however, if the respondent is no
				longer a student or employee and/or if significant time has passed, the ability
				to investigate, respond, and provide remedies may be limited or not
				possible.
Acting on reports of formal complaints significantly impacted
				by the passage of time is at discretion of the Title IX coordinator, who may
				document allegations for future reference, offer supportive measures and/or
				remedies, and/or engage in informal action, as appropriate. Ohio university
				will typically apply the policy in place at the time of the alleged misconduct
				and the process in place at the time 
									a formal
				complaint is submitted by the complainant or signed by the Title IX
				coordinator.
The measures described in this policy and related processes may
				be initiated when a respondent is charged with behavior that potentially
				violates both civil/criminal law and university policy, without regard to
				pending litigation in court or criminal arrest and prosecution. The sexual
				harassment and other sexual misconduct grievance process may be carried out
				prior to, simultaneously with, or following criminal proceedings off campus.
				Determinations made and sanctions imposed under this policy will not be subject
				to change because criminal charges arising out of the same facts were
				dismissed, reduced, or resolved in favor of or against the criminal law
				defendant.
If this policy directly contradicts any other university policy
				or procedures related to protected status discrimination, harassment, or
				retaliation, this policy takes precedence. An initial choice to use any
				particular policy does not preclude a later or simultaneous decision to use one
				or more of the others, or to use the criminal justice system.
(D) Definitions
The following definitions shall apply for the purposes of this
				policy:
(1) Actual knowledge
Notice of sexual harassment or allegations of sexual harassment
				to the Title IX coordinator or any official with the authority to institute
				corrective measures on behalf of the university.
(2) Advisor
A person chosen by a party (the complainant or the respondent)
				to accompany the party to meetings related to the grievance process, to advise
				the party on that process, and to question the other party and witnesses at the
				hearing, if any. If a party does not have an advisor to question the other
				party and witnesses at the hearing, 
										the
				university will appoint one to do so.
(3) Complainant
An individual who is alleged to be the victim of conduct that
				could constitute sexual harassment, other sexual misconduct, or retaliation
				under this policy.
(4)
			 Confidential source
An employee who is not a mandatory reporter and is not
				obligated by this policy to share knowledge and reports of sexual harassment,
				other sexual misconduct, or retaliation with the Title IX coordinator.
				On-campus confidential resources include licensed mental health professionals
				and health care providers acting within the scope of their confidential
				roles.
(5)
									Coercion
The use of intimidation, threats of
				harm, or extortion to compel another individual to initiate or continue sexual
				activity against the individual's will, or the use of these means for the
				purpose of retaliation as defined by this policy.
(6)
			 Consent
The state of Ohio does not 
										define "consent" in state
				statutes relating to sexual offenses. Ohio university's definition of consent
				is as follows:
Consent 
										is knowing,
				voluntary, and clear permission to engage in sexual activity given by word or
				action. Reasonable reciprocation can be implied consent; however silence or
				passivity, without words or actions demonstrating permission, cannot be assumed
				to show consent.
Consent to some sexual acts does not
				imply consent to others.
Past consent to a given act does not
				imply ongoing or future consent. A current or previous intimate relationship is
				not sufficient to constitute consent.
Once given, consent can be withdrawn at
				any time through understandable words or actions that clearly convey that a
				party is no longer willing to engage in sexual activity. If consent is
				withdrawn, that sexual activity must cease immediately.
Consent cannot be obtained from someone who is asleep or
				otherwise mentally or physically incapacitated, whether due to alcohol, drugs,
				or some other condition.
Consent cannot be obtained by threat,
				coercion, or force. Agreement given under such conditions does not constitute
				consent.
To give consent, one must be of legal
				age.
Consent within relationships must
				considered in context. The existence of consent is based on the totality of the
				circumstances evaluated from the perspective of a reasonable person in the same
				or similar circumstances, including the context in which the alleged misconduct
				occurred and any similar patterns that may be evidenced.
Any individual who engages in sexual
				activity when the individual knows or should know that the other person has not
				given consent is in violation of this policy. It is not an excuse that the
				respondent was intoxicated and did not realize the complainant did not give
				consent.
(7) Education program
			 or activity
Locations, events, or circumstances, including employment,
				where the university exercises substantial control over both the respondent and
				the context in which sexual harassment occurs and includes any building owned
				or controlled by a student organization that is officially recognized by the
				university.
(8) Employee
A person who performs work for the university and is paid for
				that work. For purposes of this policy, employees include paid faculty,
				administrators, staff, graduate research and teaching assistants. and all
				student employees.
(9)
									Force
The use of physical violence or
				constraint to gain sexual access to another person.
(10)
			 Formal complaint
A document submitted by a complainant or signed by the Title IX
				coordinator alleging behavior prohibited by this policy (sexual harassment,
				other sexual misconduct, or retaliation) against a respondent and requesting
				that the university investigate the allegation.
(11)
			 Grievance process
The method of resolution utilized to address
				allegations of sexual harassment, other sexual misconduct, and retaliation as
				defined by this policy.
(12) Grievance process
			 pool
Investigators, hearing panelists, appeal officers, and advisors
				who may perform any or all of these roles, though not at the same time nor
				
										for the same case.
(13) Hearing panelist
Those 
										with decision-making and sanctioning authority
				when allegations proceed to a hearing within the grievance process.
(14) Incapacitation
A person who lacks the ability to make informed
										decisions is incapacitated and, therefore, cannot
				consent to sexual activity.
A person  is
				incapacitated 
										and cannot give consent
				if they are unable to understand what is happening or
				are helpless, asleep, or unconscious for any reason, including due to the
				consumption of alcohol or other drugs or due to a temporary or permanent
				physical or mental health condition.
Merely consuming or being under the influence of alcohol or
				other drugs does not constitute incapacitation.
				Incapacitation is not the same as intoxication, being
				drunk, or the inability to remember decisions made or actions taken while
				"blacked out." Incapacitation is determined by considering all relevant
				indicators of an individual's condition and actions at the time of the sexual
				activity.
An individual who engages in sexual activity when that
				individual knows or should 
										know that the other person is
				incapacitated
				
										is in
				violation of this policy. It is not an excuse that the respondent was
				intoxicated and, therefore, did not realize the  complainant's incapacitation.
(15) Investigator
The person or persons charged with gathering information about
				an alleged violation of this policy and compiling this information into an
				investigation report and file of  evidence.
(16)
			 Mandatory reporter
An employee 
				obligated by this policy to share knowledge and reports of sexual harassment,
				other sexual misconduct, or retaliation with the Title IX coordinator.
(17) Notice
When an employee, student, or third-party informs the Title IX
				coordinator or any other official with authority of an alleged incident of
				sexual harassment, other sexual misconduct, or retaliation.
(18)
			 Official with authority (OWA)
An employee of the university with the authority to implement
				corrective measures for sexual harassment, other sexual misconduct, and
				retaliation on behalf of Ohio university. Notice to any OWA constitutes actual
				knowledge under this policy. For purposes of this policy, the following
				employees 
										are designated as OWAs: Title IX coordinator and
				deputy Title IX coordinator, president, provost, vice presidents,
				, athletic director,
				dean of students, director of community standards and
				student responsibility, and chief human resources officer.
(19) Parties
The complainant(s) and respondent(s) in a matter,
				collectively
(20)
									Reasonable person
A reasonable person under similar
				circumstances and with similar identities to the
				complainant.
(21) Report
Information provided to the Title IX coordinator indicating
				that sexual harassment, other sexual misconduct, or retaliation may have
				occurred.
(22) Remedies
Post-finding actions directed to the complainant and/or the
				community as mechanisms to address safety, prevent recurrence, and restore
				access to the university's educational program or activities, including
				employment.
(23) Respondent
An individual who has been reported to be the perpetrator of
				conduct that could constitute sexual harassment, other sexual misconduct, or
				retaliation under this policy. Student organizations or groups may also be
				respondents in the grievance process. It is presumed that a respondent is not
				responsible for the alleged conduct until a determination regarding
				responsibility is made at the conclusion of the grievance process.
(24) Sanction
A consequence imposed by the university on a respondent who is
				found to have violated this policy.
(25) Student
Any person from the time they are admitted to Ohio university
				up through the date of graduation. This includes, but is not limited to, new
				students at orientation, persons not currently enrolled but who are still
				seeking a degree from Ohio university, persons currently under suspension, and
				any other person enrolled in a credit earning course offered by Ohio
				university, including students in the college credit plus program.
(26) Supportive
			 measures
Non-disciplinary, non-punitive individualized services offered
				as appropriate, as reasonably available, and without fee or charge to the
				complainant or respondent before or after the filing of a formal complaint or
				where no formal complaint has been filed.
(27) Title IX
			 coordinator
The official designated by Ohio university to ensure compliance
				with Title IX and  oversee
				the implementation of this policy. References to
				the Title IX coordinator throughout this policy may also encompass a designee
				of the coordinator for specific tasks.
(28) Title IX team
The Title IX coordinator, deputy Title IX coordinator, and the
				members of the grievance process pool.
(29) Witness
Person who is requested to participate in the grievance process
				because they may have relevant information about the alleged violation.
				The investigators may identify potential witnesses, or
				their names may be
										 supplied by the complainant, respondent, or others
				with knowledge of the matter. All witnesses are considered to be witnesses
				called by the university.