Nondiscrimination and Anti-Harassment Policy

Purpose

The Marianist vision of community living embraced by the University of Dayton is based on the conviction that every person has innate dignity because all people are made in the image and likeness of God.  This conviction is rooted in the following verse: "The dignity of the human person is rooted in [the person's] creation in the image and likeness of God; it is fulfilled in [the person's] vocation to divine beatitude. . . The divine image is present in every [person].  It shines forth in the communion of persons, in the likeness of the unity of the divine persons among themselves." (Catholic Catechism, 1700, 1701).  A primary assertion of both our religious and civil traditions is the inviolable dignity of each person.  Recognition of and respect for the person are central to our life as a Christian and educational community, and are what allow us to pursue our common mission while being many diverse persons.  Thus, discrimination, harassment, or any other conduct that diminishes the worth of a person is incompatible with our fundamental commitment as a Catholic university conducted in the Marianist tradition. 

To University of Dayton is committed to providing an educational and employment environment that is free from discrimination based on protected characteristics, harassment, and retaliation for engaging in protected activity.  To that end, this Policy prohibits specific forms of behavior that violate Title IX of the Education Amendments of 1972 ("Title IX"); Title VII of the Civil Rights Act of 1964 ("Title VII"); Title VI of the Civil Rights Act of 1964 ("Title VI"); Americans with Disabilities Act of 1990 ("ADA") and Section 504 of the Rehabilitation Act of 1973; Age Discrimination in Employment Act ("ADEA"); and any other laws or applicable executive orders related to equal opportunity.  Such behavior also requires the University to fulfill certain obligations under these laws and others, including the Violence Against Women Reauthorization Act of 2013 ("VAWA") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act").  Further, as a recipient of federal student aid, the University must adhere to the U.S. Department of Education’s regulations applicable to Title IX, published May 19, 020.

Scope

Faculty, staff, students, visitors, non-employees, volunteers, contractors, and consultants.

Policy History

I.  Effective Date:  December 10, 2013

II.  Approval:  October 24, 2024

III.  Policy History:

• Approved in its original form:  December 10, 2013
• Approved as amended:  January 1, 2014
• Approved as amended:  October 27, 2014
• Approved as amended:  May 5, 2015
• Approved as amended:  August 19, 2015
• Approved as amended:  August 9, 2017
• Approved as amended:  August 8, 2018
• Approved as amended:  October 1, 2019
• Approved as amended:  August 13, 2020
• Approved as amended:  August 11, 2021
• Approved as amended:  July 11, 2022
• Approved as amended:  February 9, 2023
• Approved as amended:  October 24, 2024

IV.  Maintenance of Policy:  Executive Director for Equity Compliance/Title IX Coordinator, Division of Audit, Risk & Compliance

Table of Contents

1. General Information
   1. Definitions and Terms
   2. Purpose and Resolution Procedures
   3. Title IX Coordinator
   4. Independence and Conflict of Interest
   5. Notice, Reports, and Complaints of Discrimination, Harassment, and/or Retaliation
   6. Standard of Proof
   7. Supportive Measures
   8. Interim Actions/Leave, Emergency Removal
   9. Promptness
   10. Privacy
   11. Jurisdiction
   12. Time Limits on Reporting
   13. Online Harassment and Misconduct
2. University Policy Statement on Nondiscrimination
3. University Policy on Accommodating Disabilities
   1. Students with Disabilities
   2. Employees with Disabilities
4. University Policy on Discrimination
   1. Discriminatory Harassment
      1. Hostile Environment Discriminatory Harassment
   2. Bias Incidents
   3. Sexual Harassment
      1. Quid Pro Quo Sexual Harassment
      2. Hostile Environment Sexual Harassment
      3. Sexual Assault, Dating Violence, Domestic Violence, Stalking
   4. Consent, Force, Coercion, and Incapacitation
      1. Consent
      2. Force
      3. Coercion
      4. Incapacitation
5. Policy Expectations with Respect to Consensual Relationships
   1. Supervisor/supervisee romantic or sexual relationships
   2. Faculty/undergraduate student romantic or sexual relationships
   3. Staff/undergraduate student romantic or sexual relationships
   4. Employee/graduate student romantic or sexual relationships
   5. Graduate students (including law students) in general
6. Academic Freedom
7. Other Civil Rights Offenses: When the Act is Based Upon the Status of a Protected Class
   1. Sexual Exploitation
   2. Threatening or causing physical harm
   3. Intimidation
   4. Hazing
   5. Bullying
   6. Failure to Comply/Process Interference
8. Retaliation
9. When a Complainant Does Not Wish to Proceed
10. Amnesty for Parties and Witnesses
11. False Reports/Evidence
12. Sanctions/Corrective Action
13. Confidentiality, Mandatory Reporting, and Training Requirements
    1. Confidential Resources
    2. Mandatory Reporters, Formal Notice/Complaints, and Failure to Report
    3. Reporting of Instances Involving Minors
    4. Training for University Employees
14. Federal Timely Warning Obligation
15. Note on Policy History

Policy

I.  General Information 

The University affirms its commitment to promoting the goals of fairness and equity in all aspects of its operations.  The University values and upholds the equal dignity of all members of its community and strives to balance the rights of the parties in the resolution process.

A.  Definitions and Terms

"Actual Knowledge" – Notice of Sexual Harassment or allegations of sexual harassment to the University’s Title IX Coordinator or an Official with Authority.

"Advisor" – A person chosen by a party or appointed by the University to accompany a party to meetings related to the resolution process, to advise the party on that process, and to conduct cross-examination for the party at the hearing, if any.

"Appeal Panel" – The panel who accepts or rejects a submitted appeal request, determines whether any of the grounds for appeal are met, and directs responsive action(s) accordingly.

"Applicant" – One who submits an application, request, or plan required to be approved by a department official, or by the University, as a condition to becoming a student at the University.

"Complainant" – A student, faculty, staff, or third party who is alleged to have been subjected to conduct that could constitute discrimination, harassment, or retaliation under this Policy; or, who is alleged to have been subjected to conduct that could constitute discrimination or harassment under this Policy and who was participating or attempting to participate in the University’s education program or activity at the time of the alleged discrimination, harassment, or retaliation.

"Consent" – See section IV.D.1 below.

"Day" – As used in this policy, day means a business day when the University is in normal operation.

"Decision-Maker" – The person or panel who hears evidence, determines relevance, and makes the Final Determination of whether this Policy has been violated and/or assigns sanctions.

"Discriminatory Harassment" – See section IV.A below.

"Education Program or Activity" – Locations, events, or circumstances where the University exercises substantial control over both the Respondent and the context in which the harassment or discrimination occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University.

"Equity Compliance Resolution Process" – A method of formal resolution designed by the University to address conduct that falls within the scope of this Policy, with the exception of qualifying allegations of Sexual Harassment that would be resolved under the Sexual Harassment Resolution Process. 

"Executive Director for Equity Compliance" – The individual responsible for tracking and overseeing reports and notice of discrimination and harassment.  The Executive Director for Equity Compliance also serves as the University’s Title IX Coordinator.  A Deputy Title IX Coordinator may serve as a designee.  The Executive Director for Equity Compliance may be referred to as the Executive Director or the Title IX Coordinator throughout this Policy.  

"Final Determination" – A conclusion by the standard of proof that the alleged conduct did or did not violate this Policy at the end of the grievance process.

"Finding" – A conclusion by the standard of proof that the conduct did or did not occur as alleged (as in a “finding of fact”).

"Formal Resolution Process" – A method of formal resolution designated by the University to address conduct that falls within the scope of this Policy.  This Policy is subject to two formal resolution processes: (1) the Sexual Harassment Resolution Process and (2) the Equity Compliance Resolution Process.

"Hostile Environment Discriminatory Harassment" – See Section IV.A.1 below. 

"Investigative Report" – The Investigator’s summary of all relevant evidence gathered during the investigation.  Variations include the Draft Investigation Report and the Final Investigation Report.

"Mandatory Reporter" – An employee of the University who is obligated to report possible discrimination or harassment to the Executive Director/Title IX Coordinator.

"Nondiscrimination Team" – The Title IX Coordinator, any Deputy Title IX Coordinators, staff members in the Equity Compliance office, and any member of the Resolution Process Pool which may at times include individuals external to the University.

"Official with Authority" – Employees of the University explicitly vested with the responsibility to implement corrective measures for protected-class harassment, discrimination, and/or retaliation on behalf of the University.  For purposes of this Policy, the University’s Title IX Coordinator and Deputy Title IX Coordinators are Officials with Authority. 

"Parties" – The Complainant(s) and Respondent(s), collectively.

"Pregnancy or Related Conditions" – Pregnancy, childbirth, termination of pregnancy, or lactation, or medical conditions related thereto, or recovery therefrom.

"Protected Class" – For purposes of this Policy, protected class includes age, race, color, creed, religion, ancestry, national origin or ethnicity, sex/gender, sexual orientation, gender identity, gender expression, disability, genetic information, military status, veteran status, familial status, or any other protected category under applicable local, state, or federal law, ordinance, or regulation.

"Relevant Evidence" – Evidence that may aid a Decision-Maker in determining whether the alleged discrimination, harassment, or retaliation occurred or in determining the credibility of the Parties or witnesses.

"Remedies" – Typically, post-resolution actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore or preserve equal access to the University’s educational program.

"Resolution Process Pool" – A pool of individuals (both internal to and external to the University) that includes any investigators, hearing officers, appeal officers, and advisors who may perform any or all of these roles (though not at the same time or with respect to the same case).

"Respondent" – A person or group who is alleged to have engaged in conduct that could constitute discrimination based on a protected class, harassment, or retaliation for engaging in a protected activity under this Policy.

"Retaliation" – See section VIII below. 

"Sanction" – A consequence imposed by the University on a Respondent who is found to have violated this Policy.

"Sex" – Sex assigned at birth, sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

"Sexual Harassment" – A form of sex discrimination that includes sexual harassment and other harassment on the basis of sex, including sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; sexual assault, dating violence, domestic violence, and stalking.

"Student" – For purposes of this Policy, “student” means an individual who has registered with the University for any form of instruction, whether or not for credit.  Student status begins at the time of such registration, even if the student has not yet arrived on campus or commenced instruction, and continues until such time as the student graduates, completes the relevant program, is expelled, or otherwise indicates a permanent withdrawal or separation from the University.  A student who has been suspended continues to be considered a student for purposes of University policies and procedures.  Additionally, an undergraduate student who has not registered for three consecutive semesters (excluding the summer term) is no longer considered a student.  Note: Because the regulations implementing Title IX of the Education Amendments of 1972 (Title IX) define a student as “a person who has gained admission,” there may be circumstances where this Policy (specifically, qualifying allegations of Sexual Harassment) apply to an individual who has gained admission but has not yet registered for instruction.  34 C.F.R. 106.2(r)

"Title IX Coordinator" – The official designation by the University to ensure compliance with Title IX and the University’s Title IX program.  References to the Title IX Coordinator throughout this policy may also encompass a designee of the Title IX Coordinator for specific tasks.

"Sexual Harassment Resolution Process" – A method of formal resolution designated by the University to address qualifying allegations of sexual harassment (including sexual assault, dating violence, domestic violence, and stalking as defined in this Policy) involving students, staff, administrators, or faculty members, and that complies with the grievance procedure requirements of 34 C.F.R. Section 106.45.  If the Formal Complaint includes qualifying allegations of sexual harassment and other protected class harassment and discrimination, all of the allegations will be resolved using the Sexual Harassment Resolution Process.

B.  Purpose and Resolution Procedures

The purpose of this Policy is the prohibition of all forms of discrimination.  Discrimination includes harassment, and, in the case of sex discrimination, can encompass sexual harassment, sexual assault, stalking, sexual exploitation, dating violence, or domestic violence.  When an alleged violation of this Policy is reported, the allegations may be subject to resolution using either the University’s Sexual Harassment Resolution Process or the Equity Compliance Resolution Process as determined by the Executive Director/Title IX Coordinator and as detailed below.

When the Respondent is a member of the University community (i.e., a student, staff, or faculty member), a resolution process may be available regardless of the status of the individuals involved who may be members of or visitors to the campus community, students, student organizations, faculty, administrators, staff, and/or third parties.  The resolution procedures may be applied to incidents, to patterns, and/or to the campus climate, all of which may be addressed and investigated in accordance with this Policy. Certain reports involving faculty may be associated with matters outlined in Section I of the Faculty Hearing Committee on Grievances Bylaws and Operating Procedures or Section I of the of the Faculty Hearing Committee on Academic Freedom and Tenure Bylaws and Operating Procedures.  When a faculty member is found responsible for violating this Policy, that outcome will be addressed in conjunction with the procedures referenced in the prior sentence (applicable to faculty), so long as an adequate remedy for any violation determined under this Policy remains in place.

C.  Title IX Coordinator

The Executive Director for Equity Compliance serves as the University’s Title IX Coordinator and oversees implementation of the University’s Nondiscrimination and Anti-Harassment Policy.  The Title IX Coordinator has the primary responsibility for coordinating the University’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this Policy.

Complaints or notice of alleged policy violations, or inquiries about or concerns regarding this Policy and the related resolution procedures, may be made internally to:

Maureen Anderson, JD, LLM (All reports, including regarding visitors)
Executive Director for Equity Compliance/Title IX Coordinator
University of Dayton
Marianist Hall, Suite 240
300 College Park
Dayton, OH 45469-0701
Phone:  937-229-3622
Email:  manderson1@udayton.edu  

The Assistant Vice President for Institutional Equity/Section 504 Coordinator, Title IX Coordinator, and the Deputy Title IX Coordinators are Officials with Authority for purposes of this Policy.

Reports can also be submitted online.

Visit http://www.go.udayton.edu/nondiscrimination for an online reporting form.

External Contact Information

Concerns about the University’s application of this Policy and compliance with certain federal civil rights laws may also be addressed to:

Office for Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C.  20202-1100
Customer Service Hotline #:  (800) 421-3481
Facsimile:  (202) 453-6012
TDD#:  (877) 521-2172
Email:  OCR@ed.gov
Web:  http://www.ed.gov/ocr

Office for Civil Rights (OCR) Regional Office
U.S. Department of Education
1350 Euclid Avenue
Suite 325
Cleveland, OH 44115
Phone:  (216) 522-4970
Email:  OCR.Cleveland@ed.gov

For Complaints involving employee-on-employee conduct: Equal Employment Opportunity Commission (EEOC):

Local Office:  Cincinnati Area Office

John W. Peck Federal Office Building
550 Main Street, Suite 10-191
Cincinnati, OH 45202
Phone:  (513) 914-6011
Fax:  (513) 246-0218
TTY:  1-(800) 669-6820
ASL Video Phone:  (844) 234-5122

D.  Independence and Conflict of Interest

The Executive Director/Title IX Coordinator acts with independence and authority free from bias and conflicts of interest.  The Executive Director/Title IX Coordinator oversees all resolutions under this Policy and the related resolution procedures.  The members of the Nondiscrimination Team are trained to ensure they are not biased for or against any party in a specific case, or for or against Complainants and/or Respondents, generally.  Nondiscrimination Team members are asked about potential bias and/or conflict of interest when assigned to a case and they are expected to self-disclose any existing or potential bias and/or conflicts of interest to the Executive Director/Title IX Coordinator.

To raise any concern involving bias or conflict of interest by the Executive Director/Title IX Coordinator, contact the Vice President of Safety, Risk & Compliance:

Robin Oldfield
Vice President of Safety, Risk & Compliance
University of Dayton
St. Mary’s Hall, Suite 301
300 College Park
Dayton, OH 45469-1642
Phone:  937-229-4348
Email:  roldfied1@udayton.edu

Concerns of bias or a potential conflict of interest by any other Nondiscrimination Team member should be raised with the Executive Director/Title IX Coordinator.  Reports of misconduct or discrimination committed by the Executive Director/Title IX Coordinator should be reported to the Vice President of Safety, Risk & Compliance (contact information listed above).  Reports of misconduct or discrimination committed by any other Nondiscrimination Team member should be reported to the Executive Director/Title IX Coordinator.

Reports of misconduct or discrimination committed by the Executive Director/Title IX Coordinator should be reported to the Associate Vice President of Audit, Risk & Compliance/Chief Risk Officer (contact information listed above). Reports of misconduct or discrimination committed by any other Title IX Team member should be reported to the Executive Director/Title IX Coordinator.

E.  Notice, Reports, and Complaints of Discrimination, Harassment, and/or Retaliation

The University encourages everyone to report concerns or complaints regarding possible discrimination, harassment, and/or retaliation.  Reports or complaints may be made using either of the following options:

File a report or complaint with the Executive Director/Title IX Coordinator (or designee), or any Deputy Title IX Coordinator.  Such a report may be made in person (during business hours) or at any time (including during non-business hours) by using the telephone numbers, email addresses, or mailing addresses listed in the previous section.

File an online report, using the reporting form posted on the Equity Compliance Office’s webpage (found here).  Anonymous reports are accepted but can give rise to a need to investigate.

The University tries to provide supportive measures to all Complainants, which is impossible with an anonymous report.  Because reporting carries no obligation to initiate a Formal Resolution Process, and as the University respects Complainant requests to dismiss complaints unless there is a compelling threat to health and/or safety, the Complainant is largely in control and should not fear a loss of privacy by making a report that allows the University to discuss and/or provide supportive measures.  The Complainant may want to carefully consider whether they share personally identifiable details with mandatory reporters as those details must be shared with the Title IX Coordinator.

To initiate the Formal Resolution Process (either the Sexual Harassment Resolution Process or the Equity Compliance Resolution Process), individuals must submit a Formal Complaint.  A Formal Complaint means a document filed by a Complainant or signed by the Executive Director/Title IX Coordinator that alleges protected-class harassment, or discrimination or retaliation for engaging in a protected activity against a Respondent and requests that the University investigate the allegation(s).  As defined above, a Formal Complaint to initiate a formal process of sexual harassment must be in writing and signed by the Complainant or Title IX Coordinator.  All other protected-category-based harassment or discrimination may be through an oral or written request by a Complainant to the Title IX Coordinator that objectively can be understood as a request for the University to investigate and make a determination about alleged protected-class harassment, or discrimination or retaliation for engaging in a protected activity against a Respondent.

F.  Standard of Proof

The University uses the preponderance of the evidence as the standard of proof when determining whether a Policy violation has occurred.  This means that the University will decide whether it is more likely than not, based upon the available information at the time of the decision, that the Respondent is in violation of the alleged Policy violation(s).

G.  Supportive Measures

The University will offer and implement appropriate and reasonable supportive measures to the Complainant upon notice of a report of alleged harassment, discrimination, and/or retaliation, and to the Respondent when they are notified of such allegations or whenever such supportive measures appear to be appropriate. 

Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties to restore or preserve access to the University’s education programs or activities, including measures designed to protect the safety of all the parties and/or the University’s educational environment, and/or to deter harassment, discrimination, or retaliation.

The Executive Director/Title IX Coordinator (or designee) promptly makes supportive measures available to the Complainant upon receiving notice or complaint (whether a report or a formal complaint) and/or to the Respondent(s) upon receiving a formal complaint.  At the time that supportive measures are offered, the University will inform the Complainant, in writing, that they may file a formal complaint with the University either at that time or in the future if they have not done so already.  The Executive Director/Title IX Coordinator (or designee) works with the Complainant to ensure that their wishes are taken into account with respect to the supportive measures that are planned and implemented.

The University will maintain the privacy of the supportive measures, provided that privacy does not impair the University’s ability to provide the supportive measures.  The University will act to ensure as minimal an academic impact on the parties as reasonably possible.  The University will implement measures for a given party in a way that does not unreasonably burden the other party.

These actions may include, but are not limited to:

• Referral to counseling, medical, and/or other healthcare services;
• No Contact Orders;
• Referral to the Employee Assistance Program;
• Referral to community-based service providers;
• Student financial aid and counseling;
• Education to the community or community subgroup(s);
• Altering campus housing assignment(s);
• Altering work arrangements for employees or student employees;
• Safety planning;
• Providing campus safety escorts;
• Providing transportation assistance;
• Implementing contact limitations (mutual no contact orders) between the parties;
• Academic support, extension of deadlines, or other course or program-related adjustments;
• Trespass orders issued by Public Safety;
• Class schedule modifications, withdrawals, or leaves of absence;
• Increased security and monitoring of certain areas of the campus;
• Any other actions deemed appropriate by the Executive Dir4ector/Title IX Coordinator.

Violations of No Contact Orders will be referred to appropriate student or employee conduct processes for enforcement, except where the violation is a continuation of the behavior underlying the Formal Complaint (i.e., stalking and/or dating or domestic violence), in which case the violation will be resolved as part of the Equity Compliance Office's formal resolution process.

H.  Interim Actions/Leave/Emergency Removal

The University can act to remove a student Respondent entirely or partially from its education program or activities on an emergency basis when an individualized safety and risk analysis has determined that an immediate threat to the physical health or safety of any student or other individual justifies removal.  This risk analysis is performed by the Vice President for Student Development (or designee) in consultation with the Executive Director/Title IX Coordinator, the appropriate Deputy Title IX Coordinator, and the CARE Team (the University’s behavioral intervention team for students).

In all cases in which an emergency removal is imposed following a Formal Complaint of Sexual Harassment (as defined in this Policy) against a student, the student  will be given notice of the action and the option to request to meet with the Vice President for Student Development (or designee) and the Executive Director/Title IX Coordinator prior to such action/removal being imposed, or as soon thereafter as reasonably possible to show cause why the action/removal should not be implemented or should be modified.

A Respondent may be accompanied by an Advisor of their choice when attending the show cause meeting.  The Respondent will be given access to a written summary of the basis for the emergency removal prior to the meeting to allow for adequate preparation.

This meeting is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the emergency removal is appropriate.  When this meeting is not requested by the Respondent, objections to the emergency removal will be deemed waived.  A Complainant and their Advisor may be permitted to participate in this meeting if the Executive Director/Title IX Coordinator and Vice President for Student Development (or designee) determines it is equitable to do so.  This section also applies to any restrictions that a coach or athletic administrator may place on a student-athlete arising from allegations related to Title IX.  There is no appeal process for interim suspension/emergency removal decisions.

The Vice President for Student Development (or designee) has discretion under this Policy to implement or stay an emergency removal and to determine the conditions and duration.  Violation of an emergency removal under this policy will be grounds for discipline, which may include expulsion or termination.

The University will implement the least restrictive emergency actions possible in light of the circumstances and safety concerns.  As determined by the Vice President (or designee), these actions could include, but are not limited to: removing a student from a residence hall, temporarily re-assigning a student employee, restricting a student’s access to or use of facilities or equipment, allowing a student to withdraw or take grades of incomplete without financial penalty, and suspending a student’s participation in extracurricular activities, student employment, student organizational leadership, or intercollegiate/intramural athletics.

At the discretion of the Executive Director/Title IX Coordinator, alternative coursework options may be pursued to ensure as minimal an academic impact as possible on the parties.

Where the Respondent is an employee, existing provisions for interim action are applicable.

I.  Promptness

All reports are acted upon promptly by the University once it has received Actual Knowledge of the report.  Formal Complaints can take 60-90 business days to resolve, typically.  There may be exceptions and extenuating circumstances that can cause a resolution to take longer but the University will avoid all undue delays within its control.

Any time the general timeframes for resolution outlined in the related resolution procedures will be delayed the University will provide written notice to the parties of the delay, the cause of the delay, and an estimate of the anticipated additional time that will be needed as a result of the delay.

J.  Privacy

Reasonable effort is made by the University to protect the privacy of involved parties, including protecting the privacy of witnesses to the extent within the University’s control.  The University will not share the identity of any individual who has made a report or complaint of harassment, discrimination, or retaliation; any Complainant, any individual who has been reported to be the perpetrator of harassment, discrimination, or retaliation; any Respondent, or any witness, except as permitted by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; FERPA regulations, 34 CFR part 99; or as required by law; or to carry out the purposes of 34 CFR Part 106, including the conducting of any investigation, hearing, or resolution proceeding arising under this Policy and the related procedures.

K.  Jurisdiction

This Policy applies to the University’s education programs and activities to conduct that takes place on the campus or on property owned or controlled by the University, and at University-sponsored events, and to misconduct occurring within any building owned or controlled by University-recognized student organizations.  A Complainant does not have to be a member of the University community to file a Complaint, at the discretion of Executive Director/Title IX Coordinator.  The University’s disciplinary response may be limited if the Respondent is a visitor or other third-party or is not subject to the University’s jurisdiction. 

This Policy can also be applicable to the effects of off-campus misconduct that effectively deprives someone of access to the University’s education programs and activities, that creates a hostile work environment, or that adversely affects the terms and conditions of someone's employment.  The University may also extend jurisdiction to off-campus conduct or online conduct when the Executive Director/Title IX Coordinator determines that the conduct affects a substantial University interest.  A “substantial University interest” is defined to include:

1.  Any action that constitutes a criminal offense as defined by federal, state, or local law.  This includes, but is not limited to, single or repeat violations of any local, state, or federal law, whether the action takes place on the University’s campus or elsewhere.

2.  Any situation in which it appears that the Respondent may present an immediate danger or threat to the health or safety of any student or other University community member.

3.  Any situation that significantly impinges upon the rights, property, or achievements of self or others or significantly breaches the peace and/or causes social disorder.

4.  Any situation that is detrimental to the educational interests or mission of the University.

5.  Off-campus discriminatory or harassing communication that is directed at a protected class (or should reasonably be known to have a negative impact on a protected class) by an employee when such speech is made in an employee’s official or work-related capacity, or when an employee is using UD equipment, network, software, cloud-based services, Wi-Fi, and/or servers.

For disciplinary action to be issued under this Policy, the Respondent must be a University administrator, faculty member, student, employee, or volunteer at the time of the alleged incident.  If the Respondent is unknown or is not a member of the University community, the Executive Director/Title IX Coordinator (or designee) will assist the Complainant in identifying appropriate campus and local resources, and support options and/or, when criminal conduct is alleged, in contacting local or campus law enforcement if the individual would like to file a police report.

All vendors serving the University through third-party contracts are subject to the policies and procedures of their employers and their employees are also to comply with this Policy when serving the University community.

When the Respondent is enrolled in or employed by another institution, the Executive Director/Title IX Coordinator can assist the Complainant in contacting the appropriate individual at that institution as it may be possible to pursue action under that institution’s policies.

In addition, the University may take other actions as appropriate to protect the Complainant against third parties, such as barring individuals from University property and/or events.

L.  Time Limits on Reporting

There is no time limitation on the filing of concerns, however, the University’s ability to respond to the concern depends in part on the accused individual remaining subject to the University’s jurisdiction and a remedy being available to the impacted party.  The University encourages prompt reporting because witnesses’ memories and availability typically are better closer in time to the alleged incident(s).  If the Respondent is no longer subject to the University’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and provide remedies may be more limited or impossible.

Acting on notice or complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of policy) is at the discretion of the Executive Director/Title IX Coordinator, who, in lieu of conducting an investigation or taking other action, may document allegations for future reference, offer supportive measures and/or remedies, and/or engage in informal or formal action, as appropriate.

When notice or a complaint is affected by significant time delay, the University will typically apply the policy at the time of the incident(s) and the procedures in place at the time of notice/complaint. 

M.  Online Harassment and Misconduct

The policies of the University are written and interpreted broadly to include online and cyber manifestations of any of the behaviors prohibited below when those behaviors occur in or have an effect on the University’s education programs and activities or use the University's networks, technology, or equipment.

While the University may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to the University it will engage in a variety of means to address and mitigate the effects.

Members of the community are encouraged to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via Snapchat or other social media, unwelcome or sex-based messaging, distributing or threatening to distribute revenge pornography including sextortion, using racial or ethnic slurs in social media posts, breaches of privacy, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of the University community.  When these behaviors appear to rise to a violation of this Policy, the allegations may be subject to resolution using either the University’s Sexual Harassment Resolution Process or the Equity Compliance Resolution Process.

II.  University Policy Statement on Nondiscrimination

The University adheres to all federal and state civil rights laws prohibiting discrimination in private institutions of higher education.  The University of Dayton does not discriminate against any employee, applicant for employment, student, or applicant for admission on the basis of age, race, color, creed, religion, ancestry, national origin, ethnicity, sex/gender, sexual orientation, gender identity, gender expression, disability, genetic information, military status, veteran status, familial status, or any other protected category consistent with the requirements of applicable local, state, or federal law, ordinance or regulation.  This includes protections for those opposing discrimination or participating in any such reporting process on campus or within the Equal Employment Opportunity Commission, Ohio Civil Rights Commission, or other human rights agencies, in the planning and administration of its admissions policies, educational programs, scholarships, loans, and other financial aid, athletic and other school-administered programs, services, and activities, or in employment.

This policy covers nondiscrimination in employment as well as access to educational opportunities.  It is the policy of the University of Dayton, while reserving its lawful rights where appropriate to take actions designed to promote the Catholic, Marianist principles that sustain its mission and identity, to not discriminate or permit discrimination in its educational programs or employment opportunities.  Therefore, any member of the campus community, guest or visitor who acts to deny, deprive, or limit the educational, employment, residential access and/or benefits required by applicable law, and/or opportunities of any member of the campus community on the basis of their actual or perceived membership in the protected classes listed above (which denial, deprivation, or limitation constitutes “discrimination” under this policy) is in violation of this Policy.  This includes failing to provide and/or implement reasonable accommodations to persons with disabilities when that accommodation is consistent with state and federal law. 

When brought to the attention of the University, any such discrimination will be promptly and fairly addressed and remedied by the University as described below.

III.  University Policy on Accommodating Disabilities

The University is committed to full compliance with the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws pertaining to individuals with disabilities.  Under the ADA and its amendments, a person has a disability if the person has a physical or mental impairment that substantially limits a major life activity.  The ADA also protects individuals who have a record of a substantially limiting impairment or who are regarded as having such an impairment by the institution whether qualified or not.  A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, or caring for oneself. 

The Assistant Vice President for Institutional Equity (or designee) serves as the Section 504 Coordinator and is responsible for overseeing efforts to comply with these disability laws, including responding to grievances alleging noncompliance or discrimination based on disability.

Sean Weaver
Assistant Vice President for Institutional Equity/Section 504 Coordinator
University of Dayton
St. Mary’s Hall, Suite 301
300 College Park
Dayton, OH 45469-1642
Phone:  937-229-3622
Email:  sweaver2@udayton.edu

Grievances related to disability status and/or accommodations will be addressed using the Equity Compliance Resolution Process.

A.  Students with Disabilities

IV.  University Policy on Discrimination

Students, staff, administrators, and faculty are entitled to a working environment and educational environment free of discriminatory harassment.  Discrimination is different treatment with respect to an individual’s employment or participation in an education program or activity based, in whole or in part, upon the individual’s actual or perceived protected characteristic.  Discrimination also may be a failure to provide reasonable accommodations as required by law or policy, such as for disability, religion, or creed.

The University reserves the right to take measures to remedy all forms of harassment when reported.   Where appropriate, such behavior may be subject to discipline under other University policies.  In some situations, behavior that is offensive or harassing but does not rise to the level of hostile environment can be resolved informally and with remedial, responsive, and/or supportive measures.

Harassing conduct, including bias, may take various forms including name-calling, graphic or written statements (including the use of electronic means), or other conduct that may be physically threatening, harmful, or humiliating.  Such harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.  Sex-based harassment can take two forms: sexual harassment, which is further defined below in section IV.C, and gender-based harassment, which is harassment based on stereotypical notions of what is female/feminine vs. male/masculine or a failure to conform to those gender stereotypes.

A.  Discriminatory Harassment

Discriminatory harassment is defined as unwelcome conduct that is based on an individual’s actual or perceived membership in a protected class.  The University will not tolerate discriminatory harassment against any employee, student, visitor, or guest.  

Examples of discriminatory harassment include but are not limited to: epithets or slurs; negative stereotyping; denigrating jokes; and display or circulation in the working, learning, or living environment (including electronic transmission) of written or graphic material that is discriminatory in nature.  This may include belittling remarks about a person's identity, based on protected status(es) that have the effect of isolating an individual (or group) or adversely impact access to educational programs(s).  Use of email, the Internet, or other forms of digital media to facilitate any of the above referenced behaviors also constitutes discriminatory harassment.

The University reserves the right to take measures to remedy all forms of harassment or intimidation when reported. Where appropriate, such behavior may be subject to discipline under other University policy(ies).  In some situations, behavior that is offensive or harassing but does not rise to the level of creating a hostile environment can be resolved informally and with remedial, responsive, and/or protective actions. These actions could include issuing no contact orders, providing counseling and/or medical services, providing academic support, interim suspensions (for students), living arrangement adjustments, providing a campus escort, making academic or work schedule and assignment accommodations, safety planning, issuing trespass orders or other access restrictions, and/or referral to campus and community support resources. 

Note that, even where a violation of this Policy is not found to have occurred, the University may recommend that facilitated dialogue or mediated agreements, counseling or other restorative steps be taken, or, if another University policy has been violated, implement corrective action as appropriate.  Regardless of whether policy violation is found to have occurred or even formally investigated, remedy may continue to include no contact directive, or other means, as appropriate.  Procedures for handling reported incidents are fully described in the University’s Sexual Harassment Resolution Process and the Equity Compliance Resolution Process.  

     1.  Hostile Environment Discriminatory Harassment

A hostile environment, based on membership in a protected class, exists when harassment is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive so as to unreasonably interfere with, deny, or limit a person’s (a) ability to participate in or benefit from the University’s educational programs, services, residential programs, or campus activities; or (b) a University employee’s employment.

Discriminatory Harassment can be based on a single incident of conduct or a pattern of conduct, in which case the Notice of Investigation and Allegation (NOIA) will clearly indicate that both individual incidents and a pattern of conduct are being investigated.  A pattern may exist and be alleged when there is a potential substantial similarity to incidents where the proof of one could make it more likely that the other(s) occur, and vice versa.  Patterns may exist based upon target selection, similarity of offense, or other factors.  Where a pattern is found, it can be the basis to enhance sanctions, accordingly.

In determining whether harassment has created a hostile environment, consideration will be made not only as to whether the conduct was unwelcome to the person to whom the conduct was directed or who experienced the conduct, but also whether a reasonable person in a similar situation would have perceived the conduct as objectively offensive.

Also, the following factors will be considered:

• The degree to which the conduct affected one or more students’ education or one or more individuals’ employment;
• The nature, scope, frequency, duration, and location of incident or incidents;
• The identity, number, and relationships of persons involved;
• Academic freedom.

When discriminatory harassment rises to the level of creating a hostile environment, the University may also impose sanctions on the Respondent through application of the Equity Compliance Resolution Process.  The University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination for any act of Hostile Environment Discriminatory Harassment based on the facts and circumstances of the particular reported behavior.

B.  Bias Incidents

As stated above, the University reserves the right to take measures to remedy all forms of harassment when reported, even if the harassment does not rise to the level of creating a hostile environment.  An example of this type of behavior is a bias incident. Bias incidents are acts of conduct, speech, or expression that target individuals or groups based on their actual or perceived membership in a protected class and cause that individual or group to feel targeted or unwelcome. Even when these bias incidents do not rise to a level of a violation of this Policy, these acts are unacceptable and contribute to creating an unsafe or unwelcome environment for community members. Bias-related incidents that do not appear to rise to a violation of this Policy may be addressed through measures such as direct or facilitated dialogue, remedial action(s), education, and/or effective conflict resolution mechanisms. Where appropriate, such behavior may be subject to discipline under other University policy(ies), and the Equity Compliance Office may refer the matter to the appropriate office for resolution.

C.  Sexual Harassment

In addition to the Equal Employment Opportunity Commission (EEOC) and the State of Ohio, the Department of Education's Office for Civil Rights (OCR) regards sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice.  In accordance with OCR's regulations, the University has adopted the following definition of Sexual Harassment in order to address the special environment of an academic community, which consists not only of employer and employees, but of students as well.

Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking.  Specifically, for purposes of this Policy, Sexual Harassment is defined as conduct on the basis of sex that satisfies one or more of the following:

     1.  Quid Pro Quo Sexual Harassment: an employee of the University conditioning the provision of aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;

     2.  Hostile Environment Sexual Harassment: unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or

     3.  Sexual Assault, dating violence, domestic violence, or stalking, as defined below.

Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.  Complainants alleging Sexual Harassment as defined in 1-3 above and further explained below will be resolved through the Sexual Harassment Resolution Process.

State law defines various violent and/or non-consensual sexual acts as crimes.  Any criminal or civil court processing is handled outside and apart from this Policy, and may occur simultaneously with any steps taken under this policy and related process.  While some of these acts may have parallels in criminal law, the University has defined categories of sex discrimination as sexual harassment, as stated in this section, for which action under this Policy may be imposed. 

Generally speaking, the University considers sexual assault violations to be the most serious, and therefore, typically imposes the most severe sanctions on such violations including suspension or expulsion for students and termination for employees.  However, the University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any act of sexual harassment including quid pro quo sexual harassment, hostile environment sexual harassment, sexual assault, dating violence, domestic violence, and stalking, based on the facts and circumstances of the particular reported behavior.

  a. Sexual Assault

Sexual Assault is engaging or attempting to engage in one of the following activities with another individual without consent or where the individual cannot consent because of age or temporary or permanent mental or physical incapacity:

     i.  Sexual intercourse (anal, oral, or vaginal), including penetration with a body part (e.g., penis, finger, hand, or tongue) or an object, however slight;

     ii.  Intentional touching of the intimate body parts of another for the purpose of sexual gratification. Intimate body parts include the breasts, buttocks, groin, and genitals.

     iii.  Sexual intercourse (anal, oral, or vaginal) between individuals who are not permitted to marry.  In Ohio, this means that individuals closer in kin than second cousins may not have sexual intercourse.

     iv.  Sexual intercourse (anal, oral, or vaginal) with a person who is under the statutory age of consent.  In Ohio, state law prohibits sex with any individual under the age of 13; additionally, individuals over the age of 18 may not have sex with individuals under the age of 16.

  b.  Dating Violence

Pursuant to 34 C.F.R. 106.30, the University is required to define Dating Violence in accordance with 34 U.S.C. 12291(a)(11), which defines Dating Violence to mean violence committed by a person:

     i.  who is or has been in a social relationship of a romantic or intimate nature with the victim; and

     ii.  where the existence of such a relationship shall be determined based on consideration of the following factors: (1) length of the relationship; (2) the type of relationship; and (3) the frequency of the interaction between the persons involved in the relationship.   

  c.  Domestic Violence

Pursuant to 34 C.F.R. 106.30, the University is required to define Domestic Violence in accordance with 34 U.S.C. 12291(a)(12), which defines Domestic Violence to mean violence committed:

     i.  by a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim;

     ii.  by a person with whom the victim shares a child in common;

     iii.  by a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner*;

     iv.  by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Ohio; or

     v.  by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Ohio.

*To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates.  The people cohabitating must be current or former spouses or must have an intimate relationship.

  d.  Stalking

Pursuant to 34 C.F.R. 106.30, the University is required to define Stalking in accordance with 34 U.S.C. 12291(a)(36), which defines Stalking to mean engaging in a course of conduct that is directed at a specific person that would cause a reasonable person to (1) fear for their safety or the safety of others; or (2) suffer substantial emotional distress.

For purposes of this definition:

     (1)  The course of conduct must be on the basis of sex.

     (2)  Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent 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.

     (3)  A reasonable person means any reasonable person under similar circumstances and with similar identities to the Complainant.

     (4)  Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

The University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination for any offense under this Policy.

D.  Consent, Force, Coercion, and Incapacitation

As used in the Sexual Harassment offenses described above, including the offenses of sexual assault, domestic violence, dating violence, and stalking, the following definitions and understandings apply:

     1.  Consent

Consent is granted when a person freely, actively, and knowingly agrees by word or action at the time to participate in a particular sexual act with a particular person.  Consent exists when mutually understandable words and/or actions demonstrate a willingness to participate in mutually agreed-upon activity at every stage of that sexual activity.  Reasonable reciprocation can be implied.  Consent can be withdrawn once given as long as the withdrawal is clearly communicated through words or actions.  If consent is withdrawn, that sexual activity must cease immediately. 

Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity.  Silence or the absence of resistance alone should not be interpreted as consent.  While resistance is not required or necessary, it is a clear demonstration of non-consent.

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.  Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions.  Reasonable reciprocation can establish consent.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse).  A current or previous intimate relationship is not sufficient to constitute consent.  If an individual expresses conditions on their wiliness to consent or limitations on the scope of their consent, those conditions and limitations must be respected.  If a sexual partner shares the clear expectation for the use of a condom, or to avoid internal ejaculation and those expectations are not honored the failure to use a condom, removing a condom, or internal ejaculation can be considered acts of sexual assault.

Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the University to determine whether this Policy has been violated.  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 incident occurred and any similar, previous patterns that may be evidenced.

Going beyond the boundaries of consent is prohibited.

     2.  Force

Force is the use of physical violence and/or physical imposition to gain sexual access.  Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent.

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced.  Force is conduct that, if sufficiently severe, can negate consent.  Silence or the absence of resistance alone is not consent.  Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

     3.  Coercion

Coercion is unreasonable pressure for sexual activity.  When someone makes clear that they do not want to engage in sexual activity, 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.  Coercive conduct includes a wide range of actual or implied behaviors which override the voluntary nature of participation.  Coercion is evaluated based on the frequency, intensity, isolation, and duration of the pressure involved.  Such acts include, but are not limited to, threatening to disclose personal sexual information to obtain consent, or threatening to harm oneself if the other party does not engage in the sexual activity.

     4.  Incapacitation

Incapacitation is a state where a person is incapable of giving consent.  A person cannot consent if they are unable to understand what is happening or they are disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs.  As stated above, a Respondent violates this Policy if they engage in sexual activity with someone who is incapable of giving consent.

"Should have known" is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing and informed consent (e.g., to understand the "who, what, when, where, why, or how" of their sexual interaction).

Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.

If the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated, that is a defense to a sexual assault policy violation.  The University reserves the right to address offensive conduct and/or harassment that (1) does not rise to the level of creating a hostile environment, or (2) that is of a generic nature and not based on a protected class.  Addressing such conduct will not result in the imposition of discipline under this University Policy, but may be addressed through respectful conversation, remedial actions, education, effective Alternative Resolution, and/or other Informal Resolution mechanisms.  However, an employee or student may be subject to discipline under another applicable University policy or code of conduct.

V.  Policy Expectations with Respect to Consensual Relationships

VII.  Other Civil Rights Offenses: When the Act is Based Upon the Status of a Protected Class

Other types of behavior prohibited by this Policy include:

A.  Sexual Exploitation

Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit when such behavior does not constitute Sexual Harassment under this Policy.  Examples include but are not limited to: 

     1.  Taking non-consensual pictures/recordings.  Taking pictures, video, or audio recording of another in a sexual act, naked (full or partial), or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the effective consent of all involved in the activity, or exceeding the boundaries of that consent.  This includes the unauthorized sharing or distribution of digital, video or audio recording of sexual activity or nakedness (full or partial).

     2.  Going beyond the boundaries of consent.  This may include allowing others to watch otherwise consensual activity, knowingly exposing another to sexually transmitted infection, or removing protection without a partner's consent in an otherwise consensual interaction.

     3.  Compelling Prostitution.  Compelling or inducing another individual to engage in sexual activity for hire.

     4.  Voyeurism.  When one individual engages in secretive observation of another (or allows another to surreptitiously engage in this behavior) for personal sexual pleasure or engages in non-consensual video or audio recording of sexual acts or nakedness.  This behavior is a form of sexual misconduct and violates the dignity of the affected party(ies), even if the person secretly viewed or recorded may be unaware of the observation or recording.

     5.  Exposure.  Exposure of oneself or another person’s private or intimate parts of the body (e.g., breasts, buttocks, groin, and/or genitals) in non-consensual circumstances and/or a lewd manner (not including streaking, which may be behavior addressed under the Standards of Behavior and Code of Conduct).

     6.  Alcohol/Drug facilitation.  Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity.

     7.  Engaging in sex trafficking.

     8.  Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections (e.g., spoofing).

     9.  Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity.

     10.  Creating or disseminating synthetic media, including images, videos, or audio representations of individuals doing or saying sexually-related things that never happened, or placing identifiable real people in fictitious pornographic or nude situations without their consent (i.e., deepfakes).

B.  Threatening or causing physical harm

Verbal abuse or other conduct which threatens or endangers the health or safety of any person or damages their property on the basis of their actual or perceived membership in a protected class.

C.  Intimidation

Implied threats or acts that cause an unreasonable fear of harm in another on the basis of actual or perceived membership in a protected class.

D.  Hazing

Any planned/executed action or activity, by or against any active member, associate member, new member, pledge or potential member of a Student Organization or Student Group that inflicts (whether intentionally, forcefully, or recklessly) physical or mental harm, distress, anxiety, or which may demean, degrade, endanger, embarrass, or disgrace any person, regardless of location, consent, or intention of Participants.  Hazing falls within this Policy if it is based on membership or perceived membership in a protected class. Other forms of hazing may nonetheless violate other University policies and be referred accordingly.  For more information see the University’s Hazing Policy.

E.  Bullying

Repeated, severe, and/or aggressive behavior likely to intimidate or intentionally hurt, control, or diminish another person, physically or mentally, on the basis of actual or perceived membership in a protected class.  Bullying falls within this Policy if it is based on membership or perceived membership in a protected class. Other forms of bullying may nonetheless violate other University policies and be referred accordingly.

F.  Failure to Comply/Process Interference

     1.  Failure to comply with the reasonable directives of the Title IX Coordinator in the performance of their official duties, including the terms of a no contact order.

     2.  Failure to comply with emergency removal of interim suspension terms.

     3.  Failure to comply with sanctions.

     4.  Failure to adhere to the terms of an agreement achieved through informal resolution.

     5.  Failure to comply with mandated reporting duties as defined in this Policy.

     6.  Intentional interference with the Title IX resolution process, including but not limited to:

          a.  Destruction of or concealing evidence;

          b.  Actual or attempted solicitation of knowingly false testimony or providing false testimony or evidence;

          c.  Intimidating or bribing a witness or party.

A violation of any other University rule or policy, when motivated by the actual or perceived membership of the impacted individual (on the basis of sex or gender or any other protected class), may be pursued using this Policy and associated process(es).  Note that violations of other University rules or policies that do not constitute a violation of this Policy (e.g., a violation not motivated by discrimination or harassment or directed on the basis of an actual or perceived protected class) may nonetheless trigger discipline or sanctions under another University policy or policies.

The University may impose sanctions on the Respondent(s) for violation of these Civil Rights Offenses through application of the Equity Compliance Resolution Process.  Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion/termination.

VIII.  Retaliation

Protected activity under this Policy includes reporting an incident that may implicate this Policy, participating in the resolution process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.

Acts of alleged retaliation should be reported immediately to the Executive Director/Title IX Coordinator (or designee) or a Deputy Title IX Coordinator and will be promptly investigated.  The University is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.

It is prohibited for the University or any member of the University’s community to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy and procedure.

Charges against an individual for Code of Conduct violations or other applicable policy violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or complaint of Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.

The exercise of rights protected under the First Amendment does not constitute retaliation.

Charging an individual with a Code of Conduct violation or other applicable policy violation (e.g., the Policy Prohibiting Illegal, Fraudulent, Dishonest & Unethical Conduct) for making a materially false statement in bad faith in the course of a resolution proceeding under this Policy and the related procedures does not constitute retaliation provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith.

For employees: such types of materially adverse action include, but are not limited to, dismissal from employment; demotion; loss of salary or benefits; or denial of promotion that otherwise would have been received.

For students: such types of materially adverse action include, but are not limited to, being given a grade not based on class/test performance; denial of access to a course, program, organization, or housing; denial of support, services or other assistance given to other students; or denial of an award that otherwise would have been received.

An adverse action is retaliatory only if it is taken because the person participated in a protected activity.  Retaliatory behavior is to be distinguished from the University’s right to take action against an employee or student for other legitimate reasons, even if that employee or student has made a report of discrimination or harassment or otherwise participated in a protected activity.  For example, an employee’s supervisor may still provide an employee a negative performance review or take disciplinary action against an employee who violates a University policy that is unrelated to the participation in a process related to the Nondiscrimination and Anti-Harassment Policy.  For students, the University may still sanction a student who violates the Code of Conduct.

IX.  When a Complainant Does Not Wish to Proceed

If a Complainant does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a Formal Complaint to be pursued they may make such a request to the Executive Director/Title IX Coordinator, who will evaluate that request in light of the duty to ensure the safety of the campus and to comply with state or federal law.

The Executive Director/Title IX Coordinator has ultimate discretion over whether the University proceeds when the Complainant does not wish to do so, and the Executive Director/Title IX Coordinator may sign a formal complaint to initiate a resolution process if a compelling risk to the health and/or safety of the University community exists.

A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence.  The University may be compelled to act on alleged employee misconduct irrespective of a Complainant’s wishes.

The Executive Director/Title IX Coordinator must also consider the effect that non-participation by the Complainant may have on the availability of evidence and the University’s ability to pursue a resolution process fairly and effectively.

When the Executive Director/Title IX Coordinator executes the written complaint, they do not become the Complainant.  The Complainant is the individual who is alleged to be the victim of conduct that could constitute a violation of this Policy.

When the University proceeds, the Complainant (or their Advisor) may have as much or as little involvement in the process as they wish.  The Complainant retains all rights of a Complainant under this Policy, irrespective of their level of participation.  Typically, when the Complainant chooses not to participate, their Advisor may be appointed as proxy for the Complainant throughout the process, acting to ensure and protect the rights of the Complainant.

Note that the University’s ability to remedy and respond to notice may be limited if the Complainant does not want the University to proceed with an investigation and/or resolution process.  The goal is to provide the Complainant with as much control over the process as possible while balancing the University’s obligation to protect its community.

In cases in which the Complainant requests confidentiality/no formal action and the circumstances allow the Recipient to honor that request, the University will offer informal resolution options, supportive measures, and remedies to the Complainant and the community, but will not otherwise pursue formal action.

If the Complainant elects to take no action, they can change that decision if they decide to pursue a formal complaint at a later date.  Upon making a formal complaint, a Complainant has the right, and can expect, to have allegations taken seriously by the University, and to have the incidents investigated and properly resolved through these procedures.

X.  Amnesty for Parties and Witnesses

The University encourages the reporting of misconduct and crimes by Complainants and witnesses.  Sometimes Complainants or witnesses are hesitant to report to University officials or participate in resolution processes because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident.  Respondents may hesitate to be forthcoming during the process for the same reasons.

It is in the best interests of the University community that Complainants choose to report misconduct to University officials, that witnesses come forward to share what they know, and that all parties be forthcoming during the process.

To encourage reporting and participation in the process, the University maintains a policy of offering parties and witnesses amnesty from minor policy violations – such as underage consumption of alcohol or the use of illicit drugs – related to the incident.

Amnesty does not apply to more serious allegations, such as physical abuse of another or illicit drug distribution.  The decision not to offer amnesty to a Respondent is based on neither sex nor gender, but on the fact that collateral misconduct is typically addressed for all individuals within a progressive discipline system, and the rationale for amnesty – the incentive to report serious misconduct – is rarely applicable to Respondent with respect to a Complainant.

Students:  Sometimes students are hesitant to assist others for fear that they may get in trouble themselves.  For example, an underage student who has been drinking or using marijuana might hesitate to help take an individual who has experienced sexual misconduct to Public Safety.

The University maintains a policy of amnesty for students who offer help to others in need.  While policy violations cannot be overlooked, the University may provide purely educational options with no official disciplinary finding, rather than punitive sanctions, to those who offer their assistance to others in need.

Employees:  Sometimes employees are hesitant to report harassment or discrimination they have experienced for fear that they may get in trouble themselves.  For example, an employee who has violated the consensual relationship policy and is then assaulted in the course of that relationship might hesitate to report the incident to University officials.

The University may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident.  Amnesty may also be granted to Respondents and witnesses on a case-by-case basis.

XI.  False Reports/Evidence

Deliberately false and/or malicious accusations of harassment are serious offenses and will be subject to review under University policy.  False reports are different from information reported in good faith, even if ultimately found to be without merit.

Additionally, witnesses and parties knowingly providing false evidence, tampering with or destroying evidence after being directed to preserve such evidence, or deliberately misleading an official conducting an investigation can be subject to discipline under University policy.

XII.  Sanctions/Corrective Action

Where a Respondent is found in violation of this Policy, the University will impose appropriate sanctions/consequences for the violation.  The University will promptly respond to individuals who are alleged to be victims of discrimination, harassment, or retaliation by offering supportive measures.  When a grievance process is initiated, the University will follow a fair process and provide remedies (in appropriate circumstances) to victims of discrimination, harassment, and/or retaliation.  Consequences for behaviors in violation of this Policy range from reprimand up through and including suspension or expulsion/termination.  For further details as the types of consequences to which students may be subject, see the Standards of Behavior and Code of Conduct.  University non-faculty employees should reference the University’s Corrective Action policy, and faculty should consult the Faculty Handbook.

XIII.  Confidentiality, Mandatory Reporting, and Training Requirements

All University employees (administrators, faculty, and staff) are expected to report possible discrimination or harassment to appropriate officials immediately, though there are some limited exceptions.

In order to make informed choices when consulting campus resources, one should be aware of confidentiality and mandatory reporting requirements. 

On campus some resources may maintain confidentiality, offering options and advice without any obligation to inform University officials or an outside agency or individual unless the Complainant requests that the information be shared. 

If the Complainant expects formal action in response to their allegations, reporting to any Mandatory Reporter can connect them with resources to report crimes and/or policy violations, and these Mandatory Reporter employees will immediately pass reports to the Executive Director/Title IX Coordinator who will take action when an incident is reported to them.

The following describes the communication options at the University:

A.  Confidential Resources

If a party who has experienced an incident of discrimination or harassment does not desire action by the University and would like the details of the incident to be kept confidential, but desires to confide in someone, the party may speak with the following confidential resources:

• a licensed mental health professional at the University Counseling Center 937-229-3141 (students);
• a doctor or nurse at the Health Center 937-229-3131 (students);
• an ordained member of the clergy through Campus Ministry 937-229-3339 (students and employees) working within the scope of their licensure or ordination;
• a counselor through the Employee Assistance Program (employees), www.telus.com;
• an on-campus confidential resource from YWCA, Dayton's Domestic Violence Resource Center;
• off-campus local rape crisis counselors, domestic violence resources, local or state assistance agencies, ordained clergy members, or attorneys.

University employees who fall within this confidential resource category will, on a bi-annual basis, submit de-identified statistical information for Title IX and Clery Act purposes unless they believe it would be harmful to their client, patient, or parishioner, and taking into account professional and/or legal considerations.  These employees will not otherwise share the information.  Confiding in someone within this category does not trigger an investigation or otherwise provide notice to the University to take action.

B.  Mandatory Reporters, Formal Notice/Complaints, and Failure to Report

All University employees, with the exception of those who are designated as confidential resources in the previous section, have a duty to report to the Equity Compliance Office incidents or information that may indicate discriminatory or harassing behavior.  See the University’s Mandatory Reporting Policy for complete details of reporting obligations.

Complainants may want to consider carefully whether they share personally identifiable details with non-confidential Mandatory Reporters, as those details must be shared with the Executive Director/Title IX Coordinator.  Any individual can consult with the Executive Director (or a Deputy Title IX Coordinator) if uncertain about what may require reporting. 

Generally, climate surveys, classroom writing assignments or discussions, human subjects research, or events such as Take Back the Night events or speak-outs do not provide notice that must be reported to the Executive Director/Title IX Coordinator by employees unless the reporting party clearly indicates that they wish a report to be made.  When in doubt, employees should remind Complainants of options for confidential support or non-confidential reporting for University response and/or remedial action.

Supportive measures may be offered as the result of such disclosures without formal University action.

C.  Reporting of Instances Involving Minors

Anyone witnessing or otherwise knowing of a violation of this Policy that involves a minor (generally, a non-UD student, under the age of 18) should refer to the University’s Working with Minors and Children on Campus Policy.  Any observed violations of that policy should be reported to Public Safety (937-229-2121) and the person in charge of the program.  If abuse was witnessed by a "mandatory reporter" as defined by Ohio Revised Code § 2151.421, the incident must also be reported to Montgomery County Children Services at 937-224-KIDS (5437) or the municipal or county peace officer, or as otherwise may be required by applicable law.

D.  Training for University Employees

Training for university employees (administrators, faculty, and staff) shall include information on how to respond to hate incidents or incidents of harassment that occur during a class or event held at the institution at the time the incident occurs, which will address mandatory reporting obligations.  This training may be provided online.

XIV.  Federal Timely Warning Obligation

Victims of sexual misconduct should be aware that University administrators must issue timely warnings for incidents reported to them that pose a serious or ongoing threat to the campus community.  The University will undertake reasonable efforts to ensure that a victim’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 potential danger.

XV.  Note on Policy History

This policy was first effective as one overarching policy applicable to the whole University community and all protected classes on January 1, 2014.  The University's original sexual harassment policy was approved in 1983.  The original University-wide Notice of Nondiscrimination was approved in August 2012 (individual units and offices had issued their own such statements at various times over the prior decades).  In May 2020, the Department of Education amended the regulations implementing Title IX of the Education Amendments of 1972 (Title IX).  This Policy was revised to comply with the amended regulations which became effective August 14, 2020.

The Executive Director/Title IX Coordinator reviews and updates these policies and procedures regularly.  The University reserves the right to make changes to this document as necessary, and once those changes are posted online, they are in effect.

If government laws or regulations change or court decisions alter the requirements in a way that impacts this document, this document will be construed to comply with the most recent government laws, regulations, or court holdings.

This document does not create legally enforceable protections beyond the protections of the background state and federal laws that frame such policies and codes, generally.

License

Use and adaptation of this model with citation to ATIXA is permitted through a limited license to the University of Dayton.  All other rights reserved. © 2020. ATIXA.

Reference Documents

1. University of Dayton Equity Compliance Resolution Process;
2. University of Dayton Sexual Harassment Resolution Process;
3. Mandatory Reporting Policy;
4. Policy on Nepotism;
5. Working with Minors and Children on Campus Policy;
6. Faculty Policy & Governance Handbook;
7. University of Dayton. Faculty Affairs Committee, "DOC 2020-04 Amendments to Faculty Hearing Committee on Grievances and Bylaws and Operating Procedures" (2020). Senate Documents. 280.;
8. University of Dayton. Faculty Affairs Committee, "DOC 2020-05 Faculty Hearing Committee on Academic Freedom and Tenure Bylaws and Operating Procedures" (2020). Senate Documents. 279.;
9. University of Dayton Student Handbook;
10. Title VII of the Civil Rights Act of 1964;
11. Title IX of the Education Amendments of 1972;
12. Sections 503 and 504 of the Rehabilitation Act of 1973;
13. Americans with Disabilities Act;
14. Age Discrimination in Employment Act / Age Discrimination Act;
15. Ohio Revised Code § 4122;
16. National Labor Relations Act;
17. Violence Against Women Reauthorization Act of 2013
18. University of Dayton Procedure to Address National Science Foundation Notification Requirements Regarding Harassment and Sexual Assault
19. Ohio Campus Accountability and Modernization to Protect University Students (CAMPUS) Act