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Nondiscrimination and Anti-Harassment Policy

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 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 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, 2020.

Scope

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

Policy History

I.  Effective Date:  December 10, 2013

II.  Approval:  August 13, 2020

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:  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

IV. Maintenance of Policy: Executive Director for Equity Compliance and Title IX/Section 504 Coordinator

Definitions

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.

Complainant- An individual who is alleged to be the victim of conduct that could constitute protected-class harassment or discrimination or retaliation for engaging in a protected activity.

Consent- See section IV. C. 5 below.

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

Discriminatory Harassment- See section IV 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/Section 504 Coordinator. A Deputy TIX 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.  

Formal Complaint- A document filed by a Complainant or signed by the 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).

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 below. 

Mandatory Reporter- An employee of the University who is obligated to report possible discrimination or harassment to the Executive Director/TIX Coordinator.

Notice- An employee, student, or third-party informs the Title IX Coordinator or an Official with Authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.

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 TIX Coordinators are Officials with Authority. 

Parties- The Complainant(s) and Respondent(s), collectively.

Protected Class- For purposes of this Policy, protected class includes age, race, color, creed, religion, ancestry, national or ethnic origin, 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.

Remedies- Post-finding actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to the University’s educational program.

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- An individual or group who has been reported to be the perpetrator of conduct that could constitute protected-class harassment or discrimination or retaliation for engaging in a protected activity.

Retaliation- See section VII. below. 

Sanction- A consequence imposed by the University on a Respondent who is found to have violated this policy.

Sexual Harassment- The umbrella category including the offenses of sexual harassment, sexual assault, stalking, and dating violence and domestic violence. See Section IV. C. for greater detail.

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 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 Coordinator for specific tasks.

Title IX Team- The Title IX Coordinator, any Deputy 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. 

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, administrator, 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.

Table of Contents

I.   General Information

II.  University Policy Statement on Nondiscrimination

III. University Policy on Accommodating Disabilities

IV. University Policy on Discriminatory Harassment

V.  Policy Expectations with Respect to Consensual Relationships

VI. Academic Freedom

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

VIII. Retaliation

IX. When a Complainant Does Not Wish to Proceed

X.  Amnesty for Parties and Witnesses

XI. False Reports

XII. Corrective Action

XIII. Mandatory Reporting and Confidentiality

XIV. Federal Timely Warning Obligation

Note on Policy History

License

Appendix A: Contacts for This Policy

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 is committed to providing a workplace and educational environment that is free from discrimination, harassment, and retaliation. To ensure compliance with federal and state civil rights laws and regulations, and to affirm its commitment to promoting the goals of fairness and equity in all aspects of the educational program or activity, the University has developed internal policies and procedures that provide a prompt, fair, and impartial process for those involved in allegations of protected-class discrimination or harassment and for allegations of retaliation. 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 during what is often a difficult time for all those involved.

A.  Scope 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 and/or staff.  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 Bylaws and Operating Procedures of the Faculty Hearing Committee on Grievances or Section I of the Bylaws and Operating Procedures of the Faculty Hearing Committee on Academic Freedom and Tenure. 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.[1]

B.  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:

Kim Bakota, JD (All reports, including regarding visitors)
Executive Director for Equity Compliance
Title IX Coordinator and Section 504 Coordinator
University of Dayton
St. Mary's Hall, Room 300
300 College Park
Dayton, OH 45469-3622
937-229-3622
kbakota1@udayton.edu

Reports can also be made to one of the Deputy Title IX Coordinators (“Deputy Coordinators”):

Tanya Pinkelton, JD (All reports, including regarding visitors)
Deputy Title IX Coordinator
Assistant Director for Investigations
University of Dayton
St. Mary's Hall, Room 300
300 College Park
Dayton, OH 45469-3622
937-229-3622
lpinkelton1@udayton.edu

Christine Schramm
Deputy Title IX Coordinator (Reports involving Students)
Associate Vice President and Dean of Students
University of Dayton
Gosiger Hall Room 201
300 College Park
Dayton, OH 45469-0965
937-229-1212
cshramm1@udayton.edu

Carolyn Phelps, Ph.D.
Deputy Title IX Coordinator (Reports involving Faculty)
Associate Provost for Faculty and Administrative Affairs
University of Dayton
St. Mary's Hall Room 212
300 College Park
Dayton, OH 45469-1634
937-229-2245
cphelps1@udayton.edu

Lee Jackson
Deputy Title IX Coordinator (Reports involving Non-Faculty Employees)
Director of Employee Development and Labor Relations
University of Dayton
St. Mary’s Hall Room 315
300 College Park
Dayton, OH 45469-1614
937-229-1284
lmorgan1@udayton.edu

Angie Petrovic
Deputy Title IX Coordinator (Matters Involving Equity in Athletics)
Associate Director of Compliance, Department of Athletics
University of Dayton
Frericks Convocation Center, Room 108
300 College Park
Dayton, OH 45469-1230
937-229-1285
apetrovic1@udayton.edu

The Title IX Coordinator and the Deputy TIX Coordinators listed above 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.

C.  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 Title IX 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.  Title IX 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 Executive Vice President for Business and Administrative Services:

Andrew Horner
Executive Vice President for Business and Administrative Services
300 College Park
Dayton, OH 45469-1665
937-229-2890
ahorner1@udayton.edu

Concerns of bias or a potential conflict of interest by any other Title IX 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 Executive Vice President for Business and Administrative Services (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.

D.  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.[2]  Reports or complaints may be made using either of the following options:

1.  File a report or complaint with the Executive Director/Title IX Coordinator (or designee) or any Deputy 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.

2.  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.

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). A Formal Complaint may be filed with the Executive Director/Title IX Coordinator by either option described above, so long as it meets this definition.  As used in this Policy, the phrase “document filed by a Complainant” means a document or electronic submission (such as by electronic mail or through an online reporting system provided by the University) that contains the Complainant’s physical or digital signature or otherwise indicates that the Complainant is the person filing the complaint.

If the notice is submitted in a form that does not meet this standard, the Executive Director/Title IX Coordinator (or designee) will contact the Complainant to ensure that it is filed correctly.

E.  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(s) upon receiving notice (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
  • 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
  • Providing campus safety escorts
  • 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
  • Pursuing restorative justice or other similar steps (in appropriate cases)
  • Any other actions deemed appropriate by the Executive Director/Title IX Coordinator

Violations of no contact orders will be referred to appropriate student or employee conduct processes for enforcement.

F.  Interim Suspension/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 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.

G.  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.

H.  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.

I.  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 in buildings owned or controlled by University-recognized student organizations. 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.  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, WiFi, and/or servers.

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.

Further, even when the Respondent is not a member of the University’s community, supportive measures, remedies, and resources may be available to the Complainant by contacting the Executive Director/Title IX Coordinator.

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.

Contact information for inquiries about this Policy and the related resolution procedures is listed in Appendix A of this policy. 

J.  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. 

K.  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 program 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, 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 or ethnic origin, 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 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 disabled 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 Executive Director/Title IX Coordinator also serves as the ADA/504 Coordinator and is responsible for overseeing efforts to comply with these disability laws, including responding to grievances and conducting investigations of any report alleging noncompliance or discrimination based on disability. 

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

A.  Students with Disabilities

The University is committed to providing qualified students with disabilities with reasonable accommodations and support needed to ensure equal access to the academic programs and activities of the University, except where doing so would cause undue hardship or require a fundamental alteration in the nature of the program.

Accommodations are made on an individualized basis.  A student requesting any accommodation should first contact the Office of Learning Resources, which coordinates interactive support services for students with disabilities.  The Office of Learning Resources consults with the student and, when appropriate, reviews documentation provided by the student to determine which accommodations are appropriate to the student’s particular needs and academic programs.  For more information on the interactive accommodation process, including how to appeal a decision regarding an accommodation request, please see the Office of Learning Resources’ Handbook for Students with Disabilities, found on the UD website at https://udayton.edu/ltc/learningresources, alternatively, contact the Office of Learning Resources at 937-229-2066. Students with concerns regarding offered accommodations should follow the appeal process outlined by the Office of Learning Resources.  If an acceptable accommodation cannot be determined through the appeals process, the student may file an appeal with the Executive Director/Title IX Coordinator.

B.  Employees with Disabilities

Pursuant to the ADA, the University will provide reasonable accommodation(s) to qualified employees with known disabilities, where their disability affects the performance of their essential job functions, except where doing so would be unduly disruptive or would result in undue hardship.

An employee with a disability is responsible for requesting an accommodation by asking the employee’s supervisor and/or the Office of Human Resources via the ADA Employee Reasonable Accommodation Request Procedure (found on the UD policies website at https://udayton.edu/policies/hr).

The Office of Human Resources will work with the employee’s supervisor and employee to identify which essential functions of the position are affected by the employee’s disability and what reasonable accommodations could enable the employee to perform those duties.  An employee may appeal a decision regarding an accommodation request by contacting the Executive Director/Title IX Coordinator.

IV.  University Policy on Discriminatory Harassment

Students, staff, administrators, and faculty are entitled to a working environment and educational environment free of discriminatory harassment.[3]  

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.

Harassing conduct 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. B, 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.

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 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 no-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.

A.  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 ability to participate in or benefit from the University’s educational programs or services, or residential programs and campus activities; or
  • when such conduct has the effect of unreasonably interfering with an individual’s University employment.

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.[4]  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

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC) and the State of Ohio regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice.  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.[5]

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.

  1. 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:

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

(2)  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.

(3)  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.

(4)  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.

  2.  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)(10), which defines Dating Violence to mean violence 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 consideration of the following factors: (1) length of the relationship; (2) type of the relationship; and (3) the frequency of the interaction between the persons involved in the relationship.   

  3.  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)(8), which defines Domestic Violence to mean violence committed:

(A) by a current or former spouse or intimate partner of the victim,

(B) by a person with whom the victim shares a child in common,

(C) by a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner,*

(D) by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Ohio, or

(E) 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.

  4.  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)(30), which defines Stalking to mean engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

(A) fear for their safety or the safety of others; or

(B) 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.

  5.  Force, Coercion, Consent, 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:

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. 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.

Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. Coercive conduct includes a wide range of actual or implied behaviors which override the voluntary nature of participation. 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.

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.[6]  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 should cease within a reasonable time.

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.

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 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.

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.

Incapacitation: 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.

It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “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.

V.  Policy Expectations with Respect to Consensual Relationships

Consenting romantic relationships between a supervisor and a person he or she may reasonably be expected to supervise are discouraged and are generally indicative of poor judgment.  There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as faculty and student, supervisor and employee).  These relationships may be less consensual than perceived by the individual whose position confers power.  The relationship also may be viewed in different ways by each of the parties, particularly in retrospect.  Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome.  It is also possible that others (student peers or colleagues) may be adversely impacted by such relationships.  Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later report of a violation of applicable sections of this policy.

The University does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the University.  For the personal protection of members of this community, romantic or sexual relationships in which power differentials are inherent (supervisor-supervisee, faculty-student, staff-student) are discouraged; such relationships with subordinate employees or graduate students must be disclosed and any conflict-of-interest addressed; and such relationships with undergraduate students over whom a University employee has any professional responsibility are prohibited.  Other unique considerations arise in familial relationships, some of which are addressed in this policy in the context of domestic violence; for additional policy considerations in such contexts, please refer to the University’s Nepotism Policy.  More policy details applicable to potential employee-employee and employee-student relationships follow.

A.  Supervisor-Supervisee romantic or sexual relationships

If a romantic or sexual relationship develops between a supervisor and someone who reports to that supervisor, the supervisor must take steps to address the conflict of interest. This requires reporting the relationship to an appropriate, more senior supervisor, who, in consultation with the Office of Human Resources (for staff) or Provost’s Office (for faculty), will then arrange for other forms of evaluation, advising or mentoring and other appropriate resolutions of any conflict of interest.  If the subordinate employee involved in a romantic or sexual relationship also is an undergraduate student, that individual’s student status shall be determinative for purposes of this policy (i.e., refer to subparts (b) and (c)).  If the relationship changes and the subordinate employee (or a third party) brings forward a concern of nonconsensual activity, there will be no presumption that the relationship was welcome to that subordinate employee.

B.  Faculty-undergraduate student romantic or sexual relationships

University faculty members are prohibited from pursuing and/or engaging in romantic or sexual relationships with undergraduate students they teach, advise or supervise, or have the reasonable potential to teach, advise or supervise.  Even when no professional relationship currently exists between a student and a member of the faculty, faculty members should appreciate the constant possibility that they may be unexpectedly placed in a position of responsibility for the student's instruction or evaluation.

Graduate assistants and other students should be aware that when they are serving as a teaching assistant, research supervisor, or otherwise in a superior or evaluative role to undergraduate students in the academic setting, they are acting as an extension of the faculty, and therefore pursuing and/or engaging in romantic or sexual relationships with undergraduate students over whom they have any such authority is prohibited. 

C.  Staff-undergraduate student romantic or sexual relationships

University staff members are prohibited from pursuing and/or engaging in a romantic or sexual relationship with any undergraduate student for whom they have a professional responsibility (e.g., a disciplinary role, awarding financial aid, etc.).  Even when no professional relationship currently exists between a student and a member of the administration, such persons should appreciate the constant possibility that they may be unexpectedly placed in a position of responsibility for the student or the student may incorrectly believe that, due to the position one holds, one is able to affect the student's status at the University.  Graduate assistants serving in a “staff” capacity (such as in Student Development, Campus Ministry, etc.), or in any other professional or evaluative role, must also be mindful of the prohibition on pursuing and/or engaging in a romantic or sexual relationship with an undergraduate student for or with whom they have a professional responsibility or relationship.

D.  Employee-graduate student romantic or sexual relationships

Romantic or sexual relationships between an employee and a graduate student over whom the employee has any professional responsibility (e.g., teaching, mentoring, supervising) are strongly discouraged.  If such a relationship does develop, the employee (whether faculty or staff) must take steps to address the conflict of interest. This requires reporting the relationship to an appropriate, more senior supervisor, who, in consultation with the Office of Human Resources (for staff) or Provost’s Office (for faculty), will then arrange for other forms of evaluation, advising or mentoring and other appropriate resolutions of any conflict of interest.  If the relationship changes and the graduate student (or a third party) brings forward a concern of nonconsensual activity, there will be no presumption that the relationship was welcome to that graduate student.

E.  Graduate students in general

As indicated throughout this section, graduate students may have many different roles on campus.  A graduate assistant is a graduate student who is given financial support (e.g., tuition remission, a stipend, room and/or board) because of work or other service performed for the University, and it is those graduate students – the graduate assistants – who frequently have direct supervisory or other professional roles with respect to other students.  A graduate student without an assistantship may nonetheless have an evaluative, judgmental or other professional role over undergraduate students.  As set forth in this policy, a graduate student is prohibited from pursuing and/or engaging in romantic or sexual relationships with undergraduate students over whom they have any professional or other authority on behalf of the University.  Any romantic or sexual relationship between a graduate assistant and an undergraduate student should be reported to the graduate student’s department chair, who in consultation with the Office of Human Resources (for staff) or Provost’s Office (for faculty), will then arrange for other forms of evaluation, advising or mentoring and other appropriate resolutions of any conflict of interest.  If the relationship changes and the subordinate student (or a third party) brings forward a concern of nonconsensual activity, there will be no presumption that the relationship was welcome to that student.

If a romantic or sexual relationship exists prior to someone having a status addressed by this policy (e.g., someone is in a relationship and then becomes a University employee), that individual should apprise his or her supervisor of that preexisting relationship, and the supervisor should consult with the Office of Human Resources (for staff) or Provost’s Office (for faculty) to determine how to appropriately address the situation.

VI.  Academic Freedom

The proper exercise of academic freedom by a member of the faculty is not restricted by the University's prohibition of harassment against a protected class. When members of the faculty lecture, lead discussions, show exhibits and the like on sexually-related, race-related, or potentially provocative topics relevant to course material, this policy is not meant to inhibit or prohibit such educational content or discussion.   Controversial or sensitive subject matters germane to academic endeavor or classes conducted in accord with the norms of the discipline are protected by academic freedom.

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," which 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 Student 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.

B.  “Threatening or causing physical harm,” extreme verbal abuse or other conduct which threatens or endangers the health or safety of any person on the basis of their actual or perceived membership in a protected class.

C.  “Discrimination,” defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of their actual or perceived membership in a protected class.

D.  “Intimidation,” defined as 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.

E.  “Hazing,” which includes 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 in the Code of Conduct.

F.  “Bullying,” defined as 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.

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 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.

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

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.  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 to see the Student Code of Conduct.  University non-faculty employees should reference the University’s Corrective Action policy, and faculty should consult the Faculty Handbook.

XIII.  Mandatory Reporting and Confidentiality

All University employees (faculty, staff, administrators) are expected to report possible discrimination or harassment to appropriate officials immediately, though there are some limited exceptions.[7]

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);
  • a counselor through the Employee Assistance Program, www.lifeworks.com (employees);
  • an on-campus confidential resource from Artemis, Dayton's Domestic Violence Resource Center;
  • off-campus local rape crisis counselors, domestic violence resources, local or state assistance agencies, ordained clergy members.

University employees who fall within this confidential resource category will submit anonymous statistical information for Clery Act purposes unless they believe it would be harmful to their client, patient or parishioner, but 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 and Formal Notice/Complaints

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 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’s Children Services at 937-224-KIDS (5437) or the municipal or county peace officer or as otherwise may be required by applicable law.

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.

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.

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.

__________________________________________________________________________ 

[1] If the Respondent is a tenured faculty member, and the matter implicates academic freedom, the Faculty Handbook affords an option for appeal of the appropriateness of the sanction imposed.  Effort will be made to work collaboratively in such appeal requests.

[2] And, with respect to University employees, the University’s Mandatory Reporting Policy requires that ALL employees except doctors, counselors, and ordained members of the clergy acting in that capacity report possible discrimination or harassment to the Executive Director/Title IX Coordinator.

[3] This policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive, subject matters protected by academic freedom.

[4] As explained later in this Policy, harassment that meets the definition of Sexual Harassment in Section IV. C below must be adjudicated through the Sexual Harassment Resolution Process. Harassment that is sex-based or sexual in nature but does not meet the definition of Sexual Harassment in Section IV. C can be adjudicated through the Equity Compliance Resolution Process.

[5] If a Formal Complaint alleges both Sexual Harassment (as defined in this section) and Discriminatory Harassment (based on another protected class) as described above, the complaint will be resolved through the Sexual Harassment Resolution Process.

[6] For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.

[7] See the University’s  Mandatory Reporting Policy for more information.

Appendix A

Contacts for this Policy

INTERNAL CONTACTS

Inquiries about this policy and accompanying resolution processes may be made internally to the people listed below. Note that, although each has a particular category of individuals that is his or her particular focus, you may contact any listed person if you have an issue that falls under this policy.

Kim Bakota, JD (All reports, including regarding visitors)
Executive Director for Equity Compliance
Title IX Coordinator and Section 504 Coordinator
University of Dayton
St. Mary's Hall, Room 300
300 College Park
Dayton, OH 45469-3622
937-229-3622
kbakota1@udayton.edu

Tanya Pinkelton, JD (All reports, including regarding visitors)
Deputy Title IX Coordinator
Assistant Director for Investigations
University of Dayton
St. Mary's Hall, Room 300
300 College Park
Dayton, OH 45469-3622
937-229-3622
lpinkelton1@udayton.edu

Christine Schramm
Deputy Title IX Coordinator (Reports involving Students)
Associate Vice President and Dean of Students
University of Dayton
Gosiger Hall Room 201
300 College Park
Dayton, OH 45469-0965
937-229-1212
cshramm1@udayton.edu

Carolyn Phelps, Ph.D.
Deputy Title IX Coordinator (Reports involving Faculty)
Associate Provost for Faculty and Administrative Affairs
University of Dayton
St. Mary's Hall Room 212
300 College Park
Dayton, OH 45469-1634
937-229-2245
cphelps1@udayton.edu

Lee Jackson
Deputy Title IX Coordinator (Reports involving Non-Faculty Employees)
Director of Employee Development and Labor Relations
University of Dayton
St. Mary’s Hall Room 315
300 College Park
Dayton, OH 45469-1614
937-229-1284
lmorgan1@udayton.edu

Angie Petrovic
Deputy Title IX Coordinator (Matters Involving Equity in Athletics)
Associate Director of Compliance, Department of Athletics
University of Dayton
Frericks Convocation Center, Room 108
300 College Park
Dayton, OH 45469-1230
937-229-1285
apetrovic1@udayton.edu

EXTERNAL CONTACTS

Inquiries about the compliance of this Policy and accompanying resolution process may be made externally to:

Office for Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 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
Telephone: (216) 522-4970 
Facsimile: (216) 522-2573
Email: OCR.Cleveland@ed.gov

Equal Employment Opportunity Commission (EEOC)
Contact: http://www.eeoc.gov/contact-eeoc

CONTACT

For questions related to University Policies of Finance and Administrative Services, please contact:


Thom Madden, Associate Vice President for Financial Support Services
937-229-2890
Email