1.14—Sex/Gender Discrimination, Harassment and/or Sexual Misconduct

Effective: 07/01/2015
Senate Proposal: No
Responsible University Officer: President
Responsible Office: Institutional Equity and Inclusion

Policy Statement

Members of the Michigan Technological University community, including students, employees, and third parties have the right to be free from all forms of sex/gender based discrimination, harassment, and/or sexual misconduct.


Policy Requirements

Michigan Tech expressly prohibits sex/gender based discrimination, harassment, and/or sexual violence, termed as sexual misconduct by employees, students, and third parties, against students and/or employees, or third parties, such as a vendor or visitors to Michigan Tech.

Sex/gender based discrimination, harassment, and/or sexual misconduct includes pregnancy and parental status discrimination, sexual harassment, and sexual violence, hereafter referred to as sexual misconduct, such as non-consensual sexual intercourse, non-consensual sexual contact, sexual exploitation, dating violence, domestic violence, sexual assault, stalking, and sexual coercion. Michigan Tech's standards and definitions of sexual misconduct often overlap with or include the crimes of rape, sexual assault, sexual harassment, stalking, dating violence, and domestic violence. Victims of these behaviors are protected by federal laws, specifically Title IX of the U.S. Equal Opportunity in Education Act, the Violence Against Women Act, and the Jeanne Clery Act and by various state laws. See the Definitions section for complete definitions of these sexual misconduct terms.

When an allegation of sex/gender based discrimination, harassment and/or sexual misconduct is brought forward, the University will take thorough, reliable, impartial, and fair steps to investigate in a prompt, effective, and equitable manner. If found to have occurred, the University will take steps to remedy the discrimination, harassment and/or sexual misconduct, prevent its recurrence, and address its effects, whether or not the discrimination, harassment and/or sexual misconduct is the subject of a criminal investigation. The University will take appropriate steps to protect the victim and/or complainant as necessary including interim steps prior to the final outcome of the investigation.

In order for individuals to engage in appropriate sexual conduct/activity of any type, there must be consent. Consent is words or actions that demonstrate a knowing or voluntary willingness to engage in mutually agreed upon sexual activity. 

In the event that sex/gender based discrimination, harassment, and/or sexual misconduct do occur, Michigan Tech takes the matter very seriously and reserves the right to take whatever measures it deems necessary in response to an allegation in order to protect students' and employees' rights and personal safety. Michigan Tech employs interim protection actions such as interim suspensions and/or no contact orders in any case where a student's or employees' behavior presents a risk of ongoing violence, predation or other prohibited activity. The university interim actions and measures may also include, but are not limited to, modification of academic, living or work arrangements. 

In the investigation , determining whether the alleged conduct constitutes sex/gender based discrimination, harassment or sexual misconduct, consideration shall be given to the record as a whole and to the totality of circumstances, including the nature and frequency of the conduct and the context in which the alleged incidents occurred to determine if it is sufficiently severe, persistent or objectively and subjectively offensive so as to substantially or effectively interfere with an individual's employment, education or ability to participate in or receive the benefits, services or opportunities of the University. The investigation will be conducted by officials who receive annual training on the issues related to sexual misconduct and on how to conduct an investigation and hearing process that protects the safety of the complainant and promotes accountability.

If sex/gender based discrimination, harassment, and/or sexual misconduct is established, Michigan Tech will discipline the respondent. Disciplinary action for violations of this policy can range from verbal or written warnings, probation, up to and including suspension, expulsion, termination from employment or dismissal from Michigan Tech. Third parties, guests and other persons who violate the policy are subject to corrective action, which may include removal from campus and termination of contractual agreements. The University reserves the right to impose necessary and appropriate interim actions and the full range of sanctions in response to misconduct which threatens the safety and security of the University community.

Attempts to commit prohibited conduct may be punished to the same extent as completed violations. Repeated or aggravated acts of prohibited conduct may result in enhanced sanctions. Repeated or intentional failure to comply with imposed sanctions may result in enhanced sanctions. Violations of this policy that are motivated by the offender's bias due to race, religion, color, national origin, age, sex, sexual orientation, gender identity, height, weight, genetic information, marital status, disable veteran status, veteran status, or disability may result in enhanced sanctions. 

A student wishing to officially report such an incident may do so privately by contacting the Title IX Coordinator, the Office of Academic and Community Conduct, and/or Public Safety and Police Services. If a student is accused of sex/gender based discrimination, harassment and/or sexual misconduct, they are subject to action in accordance with this policy, Board of Trustees Policy 5.3 and Student Conduct Polices of Sexual and/or Relationship Misconduct policy and procedures. 

An employee wishing to officially report such an incident may do so privately by contacting Title IX Coordinator and/or Public Safety and Police Services. If an employee is accused of sex/gender based discrimination, harassment and/or sexual misconduct, they are subject to action in accordance with this policy and Board of Trustees Policy 5.3.

If a victim desires confidentiality, the victim should speak with individuals who are not required to disclose personally identifiable information. These include mental health counselors, Counseling Services for students or the Employee Assistance Program for employees, the Ombuds, and/or providers of off-campus crisis resources such as Dial Help and/or Barbara Kettle Gundlach Shelter, all of whom can maintain confidentiality. 

In an emergency, dial 911 for immediate assistance. 

For Title IX compliance, all Michigan Tech employees who are designated as supervisors, with the exception of mental health counselors and the Ombuds Officer, are considered "responsible employees." 

Public Safety and Police Services are notified when sexual misconduct occurs, typically without providing identifying information about the incident, unless a complainant wishes that information to be shared, or an emergency requires disclosure. Certain campus officials called Campus Security Authorities have a duty to report sexual assault, domestic violence, dating violence and stalking for federal statistical reporting purposes for the Clery Act. See the Definitions section of this policy for detailed information on the Campus Security Authorities / Clery Act. 

Retaliation against anyone who files a claim/complainant, who is named as a respondent, or who participates in the investigation and/or resolution of a case, regardless of the outcome of the case, is expressly prohibited and could lead to discipline and possible dismissal. 

Any individual who knowingly files a false complaint, or who knowingly provides false information to, intentionally misleads, or knowingly withholds available requested information from University officials who are investigating a complaint, may be subject to disciplinary and/or corrective action.

Under most circumstances, the investigation and final determination of a complaint will be completed within 60 days, from the date on which the University receives notice of an alleged incident. 

In an effort to reduce the risk of sex/gender based discrimination, harassment, and/or sexual misconduct including domestic violence, dating violence, sexual assault, and stalking each year, it is the policy of Michigan Tech to utilize a range of campaigns, strategies, training, and initiatives to promote awareness, educational, risk reduction, and prevention programming. Bystander engagement is also used to encourage safe and positive intervention techniques and by empowering third-party intervention and prevention.

Purpose

The U.S. Department of Education's Office for Civil Rights (OCR) enforces, among other statutes, Title IX of the Education Amendments of 1972. Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Originally known as the Campus Security Act, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is the landmark federal law that requires colleges and universities across the United States to disclose information about crime on and around their campuses. The law is tied to an institution's participation in federal student financial aid programs and it applies to most institutions of higher education both public and private. The Clery Act is enforced by the United States Department of Education.

The Violence Against Women Act (VAWA) is federal legislation's comprehensive approach to violence against women with programs to provide services for victims combined with tough provisions to hold offenders accountable.

The University Board of Trustees, by Board Policy 5.3 affirmed the rights and obligations of all students and employees pursuant to the above and other civil rights laws.

Related Policy Information

Contacts

Office/Unit Name Telephone Number
Institution Equity and Inclusion 487-3310
Title IX Coordinator 487-3310
Public Safety and Police Services 487-2216

Definitions

Advisor – typically a faculty, staff, or student member of the University who is able to be present during all processes for support to either the complainant or respondent. The advisor may not participate directly in the process, but may offer advice, guidance, and/or support to the student/employee.

Bystander Engagement – used to encourage through safe and positive intervention techniques and by empowering third-party intervention and prevention. Bystander empowerment training highlights the need for those who intervene to ensure their own safety in the intervention techniques they choose, and motivates them to intervene as stakeholders in the safety of the community when others might choose to be bystanders.

Campus Security Authorities (Clery Act) – University employees designated under the Jeanne Clery Disclosure Campus Security Policy and Campus Crime Statistics Act of 1998 to report certain crimes including the sex offenses (forcible and non-forcible) of sexual assault, domestic violence, dating violence and stalking for federal statistical reporting purposes for the Clery Act. All personally identifiable information is kept confidential, but statistical information must be passed along to campus law enforcement regarding the type of incident and its general location for publication in the annual Campus Security and Fire Safety Report. Arrest records, however, are not confidential and are not protected by FERPA. This report helps to provide the community with a clear picture of the extent and nature of campus crime, to ensure greater community safety. Complainants of sexual misconduct should also be aware that to comply with the Clery Act university administrators must issue immediate timely warnings for incidents reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. The university will make every effort to ensure that a complainant's name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the danger.

Coercion (Sexual) – unreasonable pressure for sexual activity. When someone makes clear that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. Coercing someone into sexual activity violates this policy in the same way as physically forcing someone into sex.

Complainant – any member of the University community, law enforcement agencies, or member of the public who makes a complaint of sex/gender based discrimination, harassment and/or sexual misconduct to the University. The complainant may also be referred to as the reporting party. In situations where the individual(s) reports information, but wishes not to be involved in the investigation, the University may choose to become the complainant. There are times when the victim and complainant are not the same individual as a complainant (a witness) can contact the university to make a complaint in behalf of another person (the victim) who has allegedly experienced sexual violence, discrimination or harassment.

Confidential resources – individuals that are not required to tell anyone personally identifiable information unless there is a significant case for fear of the victim's or complainant's safety or the safety of others. To contact confidential resources see the Title IX webpage.

Consent – giving sexual permission. Consent must be freely and actively given, with mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon activity. Mutually understandable consent is a subjective standard. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing, in the same way, at the same time, with each other. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Silence, without actions demonstrating permission, cannot be assumed to show consent. Consent which is obtained through the use of fraud or force whether that force be physical force, threats, intimidation, or coercion, is not consent. Consent may never be given by minors to legal adults, by mentally disabled persons, or by physically incapacitated persons. One who is physically incapacitated as a result of alcohol or other drug consumption (voluntary and involuntary), or who is unconscious, unaware, or otherwise physically helpless, is also incapable of giving consent. One may not engage in sexual activity with another who one knows or should reasonably have known is physically incapacitated. Incapacitation means being in a state where a person lacks the capacity to appreciate the fact that the situation is sexual or cannot appreciate (rationally and reasonably - who, what, when, where, why, or how) the nature and/or extent of that situation.

Dating/Relationship Violence – a pattern of assaultive and controlling behaviors that one person uses against another in order to gain or maintain power and control in the relationship. The abusive and controlling behavior(s) intentionally cause fear, degradation and humiliation. Dating violence is committed by a person; (A) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) Where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.

Domestic Violence – violence that includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Michigan, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of Michigan.

Force – the use of physical violence threats, intimidation (implied threats) and coercion that overcome resistance or produce consent and/or imposing on someone physically to gain sexual access. There is no requirement that a party resists the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but non-consensual sexual activity is not by definition forced.

Gender Discrimination – is discrimination and harassment on the basis of a person's sex or gender. Gender discrimination can occur when persons are excluded from participation in, or denied the benefits of, any University program or activity because of their sex or gender. The University's policy prohibiting gender discrimination also prohibits discrimination on the basis of pregnancy, childbirth and parenting.

Hostile Environment – occurs when unwelcome conduct of a sexual nature creates an intimidating, threatening or abusive working or learning environment and is sufficiently severe, pervasive or objectively and subjectively offensive so as to substantially or effectively interfere with an individual's employment, education or ability to participate in or receive the benefits, services or opportunities of the University. While a person engaging in harassing behavior most often has some form of power or authority over the person being harassed, that is not always the case. The harasser can be a peer of the person being harassed. Sometimes the harasser is harassing a person who has power over them. For example, a supervisee can sexually harass a supervisor, or a student can sexually harass a faculty member. To determine whether a hostile environment exists, the University examines the context, nature, scope, frequency, duration, and location of incidents, as well as the identity, number, and relationships of persons involved, when judged both objectively and subjectively (meaning that a "reasonable person" would find the environment hostile). In some cases, a single incident may be considered so pervasive and objectively and subjectively offensive so as to substantially or effectively interfere with an individual's employment, education or ability and create a hostile environment. Such incidents may include injury to persons or property, or conduct threatening injury to persons or property. Threatening or taking a negative employment action (such as termination, demotion, denial of an employee benefit or privilege, or change in working conditions) or negative educational action (such as giving an unfair grade, withholding a letter of recommendation, or withholding assistance with any educational activity) or intentionally making the individual's job or academic work more difficult because sexual conduct is rejected could be examples of hostile environment. Other examples may include the objectionable use or display in the classroom or workplace, including electronic, of pornographic or sexually harassing materials such as posters, photos, cartoons or graffiti meeting the above definition of a hostile environment without pedagogical justification.

Interim Action – an immediate action taken by the University to ensure safety and well-being and/or address threats of disruption or interference with normal University operations.

Interim Measure – an accommodation providing assistance with changes to academic schedules; on-campus housing/work arrangements; visa/immigration documents; financial aid assistance, employment assignments/schedules; on-campus escorts; etc.

Investigator – an individual who investigates complaints.

Non-Consensual Sexual Contact – any intentional sexual touching, however slight, with any object, by any person upon a man or a woman that is without consent and/or by force. Sexual Contact includes intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

Non-Consensual Sexual Intercourse – any sexual intercourse however slight, with any object, by any person upon a man or a woman that is without consent and/or by force. Intercourse includes vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.

Preponderance of Evidence – a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version. The concept of "preponderance of the evidence" can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly to one side or the other, the weightier side will prevail. If the scale does not tip toward the side of the party bearing the burden of proof, that party cannot prevail.

Private Reporting Resources – resources from who one can expect to have complaints/incidents to be taken seriously and to have those complaints/incidents investigated and properly resolved. This means only people who need to know will be told and information will be shared only as necessary. Those needing to know the person(s) you are complaining about, witnesses and investigating officials from the University or outside the University.

Programming – offered by Michigan Tech to identify and prevent sex/gender based discrimination, harassment, and sexual misconduct including domestic violence, dating violence, sexual assault, and stalking each year. Educational programs are offered to raise awareness for all incoming students and employees, and are conducted as a part of new student and new employee orientation. Programs and other campaigns offered throughout the year to all students and employees include strong messages regarding not just awareness, but also primary prevention (including the meaning of consent and bystander intervention), and discuss institutional policies on sexual misconduct as well as the Michigan definitions of domestic violence, dating violence, sexual assault, stalking, and consent in reference to sexual activity. Programs also offer information on risk reduction that strives to empower victims, how to recognize warning signals and how to avoid potential attacks, and do so without victim-blaming approaches. Programs are informed by evidence-based research and/or are assessed for their effectiveness.

Quid pro quo (meaning "this for that") – offering or implying an employment-related reward (such as a promotion, raise, or different work assignment) or an education-related reward (such as a better grade, a letter of recommendation, favorable treatment in the classroom, assistance in obtaining employment, grants or fellowships, or admission to any educational program or activity) in exchange for sexual favors or submission to sexual conduct would be an example of Quid pro quo.

Rape – when a person forcibly subjects another person to sexual intercourse without consent. Also see Non-Consensual Sexual Intercourse in the Definition section.

Respondent – the person(s) or student organization(s) alleged to have violated the policy. The respondent may also be referred to as the responding party.

Responsible Employees – any employee who has the authority to take action to redress sexual and/or relationship misconduct; who has been given the duty of reporting incidents to the Title IX Coordinator; or whom a student could reasonably believe has this authority or duty. A responsible employee is required to report allegations of sex/gender based discrimination, harassment, and/or sexual misconduct to the Title IX Coordinator to maximize the institution's ability to investigate and potentially address and eliminate the misconduct. For Title IX compliance, all Michigan Tech employees who are designated as supervisors, with the exception of mental health counselors and the Ombuds Officer, are considered "responsible employees." This includes some select undergraduate student employees such as resident assistants (RAs) and orientation team leaders (OTLs). Also considered responsible employees are Public Safety and Polices Services officers and employees, student affairs staff, human resources staff, athletics and recreation staff, academic advisors, faculty, instructors, graduate teaching assistants, graduate research assistants, graduate assistants, and individuals designated as Campus Security Authorities. The responsible employee should NOT try to determine if a violation actually did occur, or if a hostile environment is being created. The information that should be reported includes all the relevant information that the individual has shared and that may be useful in the investigation. This includes names of the alleged respondent, the student/employee who experienced the alleged violation, any other student/employee involved, and the date, time, and location of the alleged incident. Responsible employees should inform student/employee that they are not confidential resources before they reveal something that they may want to keep confidential.

Retaliatory Harassment – any adverse employment or educational action taken against a person because of the person's participation in a complaint or investigation of discrimination, harassment and/or sexual misconduct. Retaliation against anyone who is a victim, files a claim/complainant, who is named as a respondent, or who participates in the investigation and/or resolution of a case, regardless of the outcome of the case, is expressly prohibited and could lead to discipline and possible dismissal. Retaliation exists when action is taken against a participant (whether a complainant, witness, respondent, or investigator) which affects their employment, academic/student, or business status which is motivated in whole or in part by their participation in the process. Retaliation for filing a complaint or participating in the complaint process may be found regardless of whether or not the underlying complaint is found to have merit. Persons who feel that they have been subject to retaliation because of filing or participating in the complaint procedure may file a complaint based on the alleged retaliation.

Rights – see the procedures section for detailed rights and support guidelines.

Sexual Exploitation – taking nonconsensual, unjust or abusive advantage of another in a sexual or intimate context, including without limitation: prostituting another person, engaging in, permitting or facilitating nonconsensual viewing, photographing, videotaping, audio taping, or posting to the internet sexual or intimate activity (such as dressing, showering and similar activity of oneself or others), knowingly infecting another person with HIV or other sexually transmitted diseases and/or inducing incapacitation of another person with the intent to facilitate nonconsensual sexual intercourse or contact with that person.

Sexual Harassment – unwelcome sexual advances, requests for sexual favors, and/or verbal or physical conduct that is sufficiently severe, pervasive or objectively and subjectively offensive so as to substantially or effectively interfere with an individual's employment, education or ability to participate in or receive the benefits, services or opportunities of the University, and is based on power differentials (quid pro quo) where submission to such conduct is made either explicitly or implicitly a term or condition of instruction, employment, or participation in any University activity. The creation of a hostile environment, and/ or retaliation as defined above are also within the definition of Sexual Harassment.

Sexual Violence – refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving effective consent. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, nonconsensual sexual contact, nonconsensual sexual intercourse, and/or sexual coercion. Sexual violence can be carried out by University employees, fellow students, students from other schools, or third parties. Sexual violence is a form of sexual harassment.

Stalking – engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) Fear for his or her safety or the safety of others; or (B) Suffer substantial emotional distress.

Sexual Assault – an assault of a sexual nature on another person. It includes any sexual offense that meets the definition of rape, fondling, incest, or statutory rape.

Victim – the person who allegedly experienced sex/gender based discrimination, harassment and/or sexual misconduct regardless of whether the victim chooses to report the conduct to the University or authorities.

Responsibilities

Title IX Coordinator – Monitoring and oversight of overall implementation of Title IX and VAWA compliance at the University.
Public Safety and Police Services – Monitoring and oversight of overall implementation of the Clery Act and VAWA compliance at the University.

Procedures

In support of this policy, the following procedures are included: 
Procedure 1.14.1: Sex/Gender Discrimination, Harassment and/or Sexual Misconduct


Adoption Date

12/16/2016 Approved by the University President

Revisions

04/10/2017 Transfer of policy page from HTML to CMS. General Policy numbers renamed from "2.1000" to "1.00 General University". Specifically from "2.1014—Sex/Gender Discrimination, Harassment and/or Sexual Misconduct" to "1.14—Sex/Gender Discrimination, Harassment and/or Sexual Misconduct".