Discrimination and Harassment: Difference between revisions

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Policy 110
Policy 110
== Introduction ==
1.1 This policy prohibits all forms of discrimination and harassment based on protected class status. This policy also prohibits all forms of retaliation against any individual because of their participation in the reporting, investigation, or adjudication of alleged violations of this policy.


== Scope ==
== 1 Introduction ==
1.1 The purpose of this policy is to support Appalachian State University’s (the “University”) commitment to creating and maintaining an equitable and institutional environment free from Discrimination, Harassment, and related Retaliation.


This policy applies to all members of the Appalachian community, including students, faculty, staff and others who participate in University programs, activities, or conduct business on behalf of the University.
1.2 This policy defines Prohibited Conduct that is adverse to the University’s commitment to preventing Discrimination and Harassment, establishes oversight, and provides an administrative framework for reporting, investigating, adjudicating, and resolving violations of this policy.


== Definitions  ==
== 2 Scope ==
2.1 This policy applies to all members of the University community, including Students, Employees, and Third-Parties.


=== Discrimination ===
== 3 Definitions  ==
:Conduct based on an individual’s Protected Status that is an unlawful or otherwise prohibited preference for, or detrimental treatment of, one individual compared to other individuals. The conduct must be sufficiently serious to unreasonably interfere with or limit:
=== 3.1 Consent ===
:(a) an employee or employment applicant’s access to employment, terms, conditions or benefits of employment (e.g., hiring, advancement, assignment, etc.);
An affirmative decision by all participants to engage in mutually acceptable sexual activity. Consent means clear, knowing, and voluntary approval given by words, non-verbal, or demonstrated actions to engage in sexual activity, which is freely and mutually understandable. Consent must be ongoing throughout the sexual activity, and any party can withdraw Consent at any time.
:(b) a student or admission applicant’s ability to participate in, access or benefit from University programs, services, or activities (e.g., admission, academic standing, grades, assignments, campus housing, etc.); or
:(c) a volunteer or visitor’s ability to participate in, access or benefit from or deliver University’s programs or services.


=== Harassment ===
=== 3.2 Discrimination ===
:Communication or conduct (e.g. verbal, physical, electronic, written, etc.) that creates a Hostile Environment or involves a Quid Pro Quo exchange for an individual within a Protected Status that unreasonably interferes with the individual’s:  
Conduct based on an individual’s Protected Status that is an unlawful or otherwise prohibited preference for, or detrimental treatment of, one individual compared to other individuals. The conduct must be sufficiently serious to unreasonably interfere with or limit:
::(a) educational environment (e.g., admission, academic standing, grades, assignments, etc.);  
:(a) an Employee’s or applicant for employment’s access to employment, terms or conditions of employment, or benefits of employment;
::(b) work environment (e.g., hiring, advancement, assignment, etc.); or  
:(b) a Student’s or applicant for admission’s ability to participate in, access, or benefit from the University’s educational programs, services, or activities; or
::(c) participation in a University program or activity (e.g., campus housing, extra-curricular activities, etc.).
:(c) a volunteer or visitor’s ability to participate in, access, or benefit from a University program or service.


==== Hostile Environment ====
=== 3.3 Employee ===
:Conduct based on Protected Status that is so severe, persistent, or pervasive that it alters the conditions of education, employment, or participation in a University program or activity, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive. An isolated incident, unless sufficiently severe, does not constitute a Hostile Environment.
An individual employed by the University, including but not limited to those holding temporary, probationary, time-limited, full or part-time, SHRA, EPS, SAAO, Faculty, Student Employees, and Non-Student Temporary positions.


==== Quid Pro Quo ====
=== 3.4 Harassment ===
:Conduct based on Protected Status where submission to or rejection of such conduct is used, explicitly or implicitly, as the basis for decisions adversely affecting an individual’s education, employment, or participation in a University program or activity.
Communication in any form (including verbal, physical, electronic, or written) or conduct based on an individual’s Protected Status that is protected by federal law, state law, or University policy that creates a Hostile Environment or involves a Quid Pro Quo exchange that unreasonably interferes with the individual’s education, employment, or participation in a University program or activity. Not all harassing communication or conduct rises to unlawful harassment.


=== Protected Status ===
==== 3.4.1 Hostile Environment ====
:The University prohibits Discrimination and Harassment based on age, color, disability, gender, gender expression, gender identity, genetic information, national origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, and veteran status, as defined by federal and state law and UNC system policies.
Communication or conduct based on Protected Status that is subjectively and objectively offensive and is so severe or pervasive that it alters the conditions of education or employment; or limits or denies an individual’s ability to participate in or benefit from a University program or activity. An isolated incident, unless sufficiently severe, does not constitute a Hostile Environment.


=== Retaliation ===
==== 3.4.2 Quid Pro Quo ====
:Any adverse action against an individual, or an individual’s spouse, partner, or other person with a close personal relation, for making or supporting a claim of Discrimination or Harassment, opposing any Discrimination or Harassment, or participating in the reporting, investigation, or resolution of alleged violation(s) under this policy. Examples of Retaliation include intimidation, threats, coercion, or adverse employment or educational actions. Retaliation may be found even when an underlying report or complaint made in good faith was not substantiated.
Conduct based on Protected Status whereby submission to or rejection of such conduct is explicitly or implicitly: (a) a term or condition of an individual’s employment, education, or receipt of University services or benefits; or (b) is used as the basis for decisions adversely affecting an individual’s education, employment, or participation in a University program or activity.


== Policy and Procedure Statements  ==
==== 3.4.3 Sex-Based Harassment ====
Sex-based harassment is a form of sex discrimination that includes sexual harassment and other harassment based on sex (including pregnancy, childbirth, and related medical conditions, sexual orientation, and gender identity) that includes Sex-Based Quid Pro Quo, Sex-Based Hostile Environment, and Specific Offenses (i.e. Sexual Assault, Dating Violence, Domestic Violence, and Stalking), and other conduct based on sex (i.e. sex-based stereotypes, sexist comments, or facially neutral offensive conduct motivated by sex).


=== Prohibited Conduct ===
==== 3.4.4 Sex-Based Hostile Environment ====
All members of the Appalachian community are prohibited from engaging in Discrimination or Harassment or engaging in Retaliation. (“Prohibited Conduct”)
Unwelcome conduct based on sex that either (a) occurs within an educational program or activity that is severe, pervasive, and objectively offensive, or (b) that is subjectively and objectively offensive and is so severe or pervasive that it alters the conditions of employment or education; or limits or denies an individual’s ability to participate in or benefit from a University program or activity. An isolated incident, unless sufficiently severe, does not constitute a Sex-Based Hostile Environment.


=== Reporting ===
==== 3.4.5 Sex-Based Quid Pro Quo ====
==== Reporting and Review of Prohibited Conduct ====
An Employee conditioning the provision of any aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.
Allegations of Prohibited Conduct should be reported as promptly as possible to the applicable administrative office as identified in Section 4.4. Allegations must be reviewed and processed by the applicable administrative office in accordance with this policy and administrative office procedures, as further referenced in Section 4.4. Allegations of Prohibited Conduct should be disclosed to an administrative office by submitting either an informal report or formal complaint:
:(a) an informal report is a disclosure of information alleging the occurrence of Prohibited Conduct, which may result in a formal complaint being made by an individual or University representative; and
:(b) a formal complaint is a written allegation of Prohibited Conduct made by an individual or a University representative requesting the University to address the alleged behavior through a resolution process.


==== Interim Measures ====
==== 3.4.6 Specific Offenses ====
Upon receiving an informal report or formal complaint, the appropriate administrative office reviewing allegation(s) of Prohibited Conduct may impose reasonable interim measures to temporarily address allegations to ensure a safe and nondiscriminatory environment. The measures imposed will be identified on a case-by-case basis, and the University will balance the burden placed on members of the Appalachian community with the University’s interest in ensuring a safe and nondiscriminatory environment.
Specific Offenses include:
:'''3.4.6.1 Sexual Assault''' is any sexual act directed against another individual, without their Consent, including instances where the individual is incapable of giving Consent. Sexual Assault includes:
<ol style="list-style-type:lower-roman">
  <li>the penetration of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without Consent;</li>
  <li>the touching of the private body parts of another person for the purpose of sexual gratification, without Consent;</li>
  <li>sexual intercourse with a person who is under the statutory age of consent; or</li>
  <li>sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.</li>
</ol>


==== Responsible Employee Reporting ====
:'''3.4.6.2 Dating Violence''' is conduct defined as violence committed by an individual (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 a consideration of the length of the relationship; type of relationship; and frequency of interaction between the individuals involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
===== Mandatory Title IX Responsible Employee Reporting =====
Upon receiving any information that may indicate the occurrence of Prohibited Conduct based on the Protected Status of gender, gender expression, gender identity, sex, or sexual orientation, the following employees are required to report the information to the Office of Title IX Compliance as promptly as possible, but in no event after seventy-two (72) hours: Faculty, Coaching Staff in the Athletics Department, Office of Human Resources Staff, University Housing Staff, and other University staff with supervisory responsibility.


===== Other Responsible Employee Reporting =====
:'''3.4.6.3 Domestic Violence''' is felony or misdemeanor crimes of violence committed by (i) a current or former spouse of the victim, (ii) a current or former intimate partner of the victim, (iii) a person with whom the victim shares a child in common, (iv) a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, (v) a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction, or (vi) any other person against an adult or minor victim who is protected from that person’s acts under the domestic or family laws of the jurisdiction.
As promptly as possible, upon receiving any information that may indicate the occurrence of Prohibited Conduct based on a Protected Status that is not referenced in Section 4.2.3.1, employees should report the information to the appropriate administrative office identified in Section 4.4.


===== Confidential Resources =====
:'''3.4.6.4 Sexual Exploitation''' is when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and when that behavior does not otherwise constitute one of the other forms of Prohibited Conduct offenses.
Confidential Resources are employees in designated University departments who are responsible for maintaining the confidentiality of information they receive while acting within the scope of their employment capacity. These employees may not report information they obtain on allegations of Prohibited Conduct, unless:
:(a) they obtain permission from the recipient of the Prohibited Conduct, as addressed under this policy;
:(b) there is a threat to the health or safety of the individual or others; or
:(c) there is a legal obligation (e.g., suspected abuse or neglect of a minor).


Employees, in the following University departments, are considered “Confidential Resources” and are exempt from reporting obligations referenced in Section 4.2.3.1 and Section 4.2.3.2: Counseling for Faculty and Staff, Counseling and Psychological Services, ComPsych (or a similar service provider), Psychology Clinic, Student Legal Clinic, Student Health Services, and University Ombuds.
:'''3.4.6.5 Stalking''' is engaging in any actions on more than one occasion directed at a specific individual that places or is likely to place a reasonable individual in fear or at risk of physical, mental, or emotional harm to themselves or others. Such actions may occur directly, indirectly, or through a third party, and may include, but are not limited to, unwelcome communication of any type (e.g., face-to-face, telephone calls, voice messages, electronic mail, written letters, or notes); unwanted gifts; pursuing/following; observing/surveillance; or interference with property. Reports of stalking will be assessed on an individualized basis to determine the applicable University office and procedures used to resolve alleged incidents.


===== Other Exemptions =====
=== 3.5 Prohibited Conduct ===
Employees are not required to report information disclosed at public awareness events and programs open to the public in which attendees disclose incidents of Prohibited Conduct, nor are they required to report information obtained during an individual’s participation as a subject in an approved Institutional Review Board (“IRB”) human subjects research study, unless the disclosing party also initiates an informal report or formal complaint under this policy.
Conduct which includes Discrimination, Harassment, or related Retaliation.


==== Complainants and Respondents ====
=== 3.6 Protected Status ===
For purposes of this policy and administrative office procedures:
Individuals whose characteristics are protected under federal law, state law, UNC System policies or University policies. Protected status includes age, color, disability, gender, gender expression, gender identity, genetic information, national origin, political affiliation, race, religion, sex (including pregnancy, childbirth, or related medical conditions), sexual orientation, or veteran status.
:(a) a reporting party or “Complainant” is a person who submits an informal report or formal complaint regarding Prohibited Conduct under this policy; and
:(b) a responding party or “Respondent” is a person who is alleged to have committed a Prohibited Conduct under this policy.


==== Privacy and Confidentiality ====
=== 3.7 Resolution Procedures ===
Information obtained by the University in response to allegations of Prohibited Conduct will be reviewed in a manner that balances an individual’s preferences for privacy with the University’s legal obligations, as well as the University’s obligations to provide a safe and nondiscriminatory environment. Complete confidentiality cannot be guaranteed, and information may be shared with others when necessary to investigate or address the Prohibited Conduct, to prevent its recurrence, or to fulfill legal obligations.
Procedures governing the University’s response to reports of Prohibited Conduct, investigatory processes, adjudication, and resolution of violations of University policy or applicable law.


=== Reporting Options ===
=== 3.8 Retaliation ===
4.3.1 Individuals who believe they have experienced conduct prohibited by this policy have the right to report and/or file a complaint with the University. Choosing to make a report, and deciding to file a complaint, is a process that unfolds over time. The University recognizes that the decision about how to proceed is personal and will make every effort to respect an individual’s autonomy in making this determination. There may be instances when the University determines that it must address a reported concern even if the Reporting Party does not wish to proceed with a formal complaint. These situations include, but are not limited to, when the information provided causes a safety concern for the individual reporting or the University community, when the University is required by law to address discrimination in the workplace, and similar situations. The University takes seriously every report and complaint of discrimination, harassment and retaliation. All individuals are encouraged to report and/or file a complaint of any incident of which they are aware, regardless of when or where the incident occurred, and to seek any necessary resources and support from University or other sources.
Intimidation, threats, coercion, or discrimination against any individual, or an individual’s spouse, partner, or other person with a close personal relation to the individual, because the individual has reported information, made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this policy, including in a facilitated resolution process. Retaliation may be found even when an underlying report or complaint made in good faith was not substantiated.


4.3.2 Consistent with this policy, upon receipt of a report, appropriate university officials will conduct an initial assessment to: (a) review the incident or behavior of concern; (b) assess any risk of harm to the parties, any other individuals, or the broader University community; (c) determine the Reporting Party’s desired course of action; and (d) identify any need for interim protective measures for the safety and well-being of the Reporting Party, any other individual, or the community.  
=== 3.9 Student ===
An individual who has accepted an offer of admission to the University, is currently enrolled in coursework or has registered for coursework at the University, has a continuing relationship with the University, is auditing coursework, or is participating in an educational program sponsored by or affiliated with the University. In general, the continuing relationship ends upon conferral of a degree, termination of the relationship, or a break in enrollment of twelve (12) consecutive months after the last semester attended at the University.


4.3.3 Individuals who believe they have experienced discrimination, harassment or retaliation prohibited by this policy are encouraged to report and/or file a complaint about the incident directly as follows:
=== 3.10 Third-Party ===
An individual who either participates in or is attempting to participate in a University program or activity or conducts business on behalf of or at the request of the University, including but not limited to contractors, vendors, visitors, or guests.


#Individuals who believe they have experienced discrimination, harassment or retaliation by an employee, vendor, contractor or visitor of Appalachian State University are encouraged to report and/or deliver a complaint about the incident to the Office of Title IX Compliance.
== 4 Policy Statement ==
#Individuals who believe they have experienced sex/gender-based discrimination or harassment by a student, as defined in the University’s Code of Student Conduct, are encouraged to report and/or deliver a formal complaint about the incident to the Office of Title IX Compliance. Individuals who believe they have experienced any other forms of discrimination, harassment or retaliation by a student are encouraged to report and/or file a formal complaint about the incident to the Office of Student Conduct.
=== 4.1 Reporting ===
4.1.1 '''Generally.''' Any person may report an allegation of Prohibited Conduct as defined in this policy. Individuals reporting Prohibited Conduct allegations should report to the Office of Access
4.3.4 Any employee should file a complaint under this policy immediately, but in no event later than thirty (30) days following the incident(s). The University will address discrimination and harassment concerns brought to the attention of administrators more than thirty (30) days after an occurrence of such discrimination, harassment, and/or retaliation, but employees’ rights to appeal internal university decisions will not apply beyond the thirty (30) day reporting period.  
&amp; Equity: Equal Opportunity (“EO”).


4.3.5 Employees subject to the State Human Resources Act (SHRA) should file complaints under this policy within fifteen (15) calendar days to protect their appeal rights provided by Office of State Human Resources policies. The University will address discrimination and harassment concerns brought to the attention of administrators more than  fifteen (15) calendar days after an occurrence of such discrimination, harassment, and/or retaliation but employees’ rights to appeal internal university decisions will not apply beyond the prescribed fifteen (15) calendar day reporting period.
4.1.2 '''Required Reporting.''' All employees are required to report any information that may indicate the occurrence of Prohibited Conduct to EO as promptly as possible, but in no event after forty-eight (48) hours (2 business days) with the exception of confidential employees acting in an official confidential role, such as University counseling services, Ombuds, Student Health Service, pastoral counselors, and Student Legal Services.


=== Privacy and Confidentiality ===
=== 4.2 Applicable Resolution Procedures ===
4.4.1 Responsible employees and other University officials who receive reports or complaints subject to this policy are expected to respect the privacy of all individuals involved, consistent with the University’s responsibility to investigate the allegation(s) and determine what steps the University must take to eliminate the prohibited conduct, prevent its recurrence, and address its effects. University officials responsible for addressing alleged violations of this policy may share information on a “need to know” basis with other University employees, or as otherwise permitted by law.
4.2.1 EO responds to reports of Prohibited Conduct and utilizes Resolution Procedures to address and remedy the alleged Prohibited Conduct. Resolution Procedures shall be governed and administered by EO to ensure fair and equitable resolutions, which shall include due process protections for individuals alleged to have engaged in Prohibited Conduct. Such applicable procedures shall be made readily available through EO.


4.4.2 Confidential Resources will not share information about or shared by the individuals involved in alleged violations of this policy without permission, unless there is a threat of serious harm to the individual or to others, or there is a legal obligation to reveal such information (e.g., suspected abuse or neglect of a minor).
=== 4.3 Standard of Proof ===
4.3.1 The evidentiary standard for all violations of this policy, utilized to determine whether an individual is responsible for an alleged violation(s), shall be a preponderance of the evidence. This standard is met when the evidence shows that it is “more likely than not” that the alleged Prohibited Conduct occurred.


=== Interim Protective Measures ===
=== 4.4 Privacy and Confidentiality ===
4.5.1 When a report is received, the Office of Title IX Compliance, in consultation with other administrators, will impose reasonable and appropriate interim protective measures when necessary for the safety and well-being of the parties or witnesses involved. Interim protective measures are actions taken by the University to ensure equal access to its educational programs, services and activities, or access to employment and the conditions and benefits of employment, during the process of reporting, investigation, and/or adjudication. Interim protective measures may be applied to the Reporting Party, the Responding Party, and other involved individuals as appropriate to ensure their safety and well-being. Interim protective measures may be requested by the parties or directed by the University at any time, regardless of whether any particular course of action is sought by the Reporting Party. Interim measures are initiated on the basis of information gathered during a report or investigation and do not constitute disciplinary actions.
4.4.1 Information obtained by the University in response to allegations of Prohibited Conduct shall be reviewed in a manner that considers an individual&#39;s preferences for privacy with the University’s legal obligations and its obligations to provide a safe and nondiscriminatory environment. Complete confidentiality cannot be guaranteed, and information may be shared as necessary to investigate or address the Prohibited Conduct, fulfill legal obligations, or pursuant to University policies.


=== Standard of Proof ===
=== 4.5 Enforcement ===
4.6.1 Before a person may be subjected to a serious disciplinary sanction for violation of this policy, the  University must establish that the Responding Party is responsible for an alleged violation(s) by a preponderance of the evidence (i.e., that it is more likely than not that the Responding Party violated this policy). This determination must be based solely on the information presented, which may include, but is not limited to, pertinent records (e.g., complaints, police reports, investigation reports), exhibits (e.g., photographs, audio/video information, electronic communications including social media), and written and oral statements. Formal rules of evidence and procedure do not apply.  
4.5.1 The University shall enforce violations of this policy in accordance with applicable federal and state law, and UNC System policies. Violations of this policy may result in grounds for disciplinary action, up to and including termination or expulsion.


=== Investigations ===
== 5 Additional References ==
4.7.1 If the Director of Investigations and Title IX Compliance determines that the most appropriate means for addressing the complaint is through an investigation, the Director will appoint an investigator will be identified and appointed.  
:[https://studentconduct.appstate.edu Code of Student Conduct]
:[[Equal Opportunity]]
:[[EPS_Grievances]]
:[https://facultyhandbook.appstate.edu Faculty Handbook]
:[[Policy_Statement_on_the_Family_Educational_Rights_and_Privacy_Act_of_1974,_as_Amended]]
:[https://oshr.nc.gov/documents/personnel-records-policy/open Personnel Records Policy]
:[[SHRA_Grievance_and_Appeal]]
:[https://www.northcarolina.edu/apps/policy/index.php?pg=dl&amp;id=10866&amp;format=pdf&amp;inline=1 The UNC Policy Manual, Chapter 100.1, The Code, Section 103]


4.7.2 The role of the investigator is to gather information and impartially review and report about the alleged incident.  
== 6 Authority ==
:North Carolina Office of State Human Resources - Unlawful Workplace Harassment
:North Carolina Office of State Human Resources - Reasonable Accommodation
:The UNC Policy Manual, Chapter 100.1, The Code, Section 103
:Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, et seq.)
:Section 504 of the 1973 Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.)
:Title II, Civil Rights Act of 1964, as amended (42 U.S.C. 2000a, et seq.)
:Title IV, the Violence Against Women Act, Violence Crime Control and Law Enforcement Act of 1994
:Title VI, Civil Rights Act of 1964, as amended (42 U.S.C. 2000d, et seq.)
:Title VII, Civil Rights Act of 1964, as amended (42 U.S.C. 2000e, et seq.)
:Title IX of the Education Amendments Act of 1972
:Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990
:Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 4301, et seq.)
:Title II, Genetic Information Nondiscrimination Act of 2008 (PL 110-233)
:Vietnam Era Veterans&#39; Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212 et seq.)
:Pregnancy Discrimination Act of 1978 (95 U.S.C. 555, et seq.)
:Age Discrimination Act of 1967 (29 U.S.C. 621 et seq.)
:N.C. Gen. Stat. § 95-241
:N.C. Gen. Stat. §§ 126-1.1, 126-5,126-7.1, 126-14, 126-14.1, 126-14.2, 126-16, 126-17, 126-34.01, 126-34.02, 126-82, 126-85
:N.C. Gen. Stat. §§ 168A-3, 168A-5 168A-10
:25 NCAC 01J .1101 and 25 NCAC 01J. 1302


4.7.3 A preliminary investigation may be conducted by interviewing involved parties and witnesses provided by the Reporting Party. If it is concluded that further investigation is warranted, the Responding Party will be advised of the allegations in writing and asked to provide a response to the complaint, along with a witness list and any relevant documentation. The investigation may include the review of written or oral statements, audio or video recordings, pictures, social media information, text messages, class schedules, police investigation reports, medical records and other relevant information.  
== 7 Contact Information ==
:Office of Access and Equity [http://eo.appstate.edu] (828-262-2144)
:Office of Academic Affairs [https://academicaffairs.appstate.edu] (828-262-2070)
:Office of Human Resources [https://hr.appstate.edu] (828-262-3187)
:Office of Student Conduct [https://studentconduct.appstate.edu] (828-262-2704)


4.7.4 The investigation will be conducted in a thorough, prompt, impartial and fair manner.
== 8 Original Effective Date ==
 
4.7.5 Prior to finalizing the investigative report, the investigator shall provide all parties the opportunity to review their own statements for accuracy. At the conclusion of an investigation, the investigator shall present an investigative report summarizing the key evidence and findings to the appropriate administrator or supervisor. 
 
4.7.6 During an investigation involving students, the parties may be accompanied by support individuals and an advocate as provided in the University’s Code of Student Conduct. During an investigation involving employees, the parties may have a third party present for support; provided, however, that the third party is not providing legal representation and does not actively participate in the investigation.
 
=== Resolutions ===
4.8.1 Complaints involving alleged violation(s) of this policy by a student will be resolved through the Office of Student Conduct. Determinations of responsibility and the imposition of sanctions, if appropriate, shall be made pursuant to the Code of Student Conduct.
 
4.8.2 Complaints involving alleged violation(s) of this policy by a University employee, contractor, vendor or visitor will be resolved through the Office of Title IX Compliance. The Director of Investigations and Title IX Compliance shall determine whether or not a violation of this policy has occurred. Determinations regarding sanctions and necessary corrective actions, if any, shall be made by the employee’s supervisor in consultation with the Director of Investigations and Title IX Compliance and other appropriate University administrators, subject to applicable grievance policies.
 
4.8.3 The totality of the circumstances and facts will be reviewed to determine whether the alleged conduct constitutes harassment and/or other forms of discrimination or retaliation. The University ordinarily will provide a written response to a reporting party within sixty (60) calendar days following receipt of a complaint by Director of Investigations and Title IX Compliance. This timeline is subject to adjustments as necessitated by the facts and circumstances of each case.
 
=== Appeals ===
4.9.1 Appeals involving alleged violation(s) of this policy by a student may be filed as provided in the Code of Student Conduct.
 
4.9.2 Appeals involving alleged violation(s) of this policy by an employee, vendor, contractor or visitor:
#SHRA employees have grievance rights as provided in the University SHRA Grievance and Appeal Policy. If a grievance alleging conduct prohibited by this policy is filed, the grievance process will be held in abeyance until the Office of Title IX Compliance completes its investigation. Investigations initiated through the SHRA grievance process ordinarily will be completed within forty-five (45) calendar days. An extension may be granted only as provided in the SHRA Grievance and Appeal Policy. The Office of Title IX Compliance will notify the Reporting Party, the Responding Party, and the Office of Human Resources when its investigation is concluded.
#EHRA Non-Faculty employees have grievance rights as provided in the EHRA Non-Faculty Grievances Policy. If a grievance alleging conduct prohibited by this policy is filed, the grievance process will be held in abeyance until the Office of Title IX Compliance completes its investigation. The Office of Title IX Compliance will notify the Reporting Party, the Responding Party and the Office of Human Resources when its investigation is concluded.
#Faculty members have grievance rights as stated in the Faculty Handbook. If a grievance is filed alleging conduct prohibited by this policy, the grievance process will be held in abeyance until the Office of Title IX Compliance completes its investigation. The Office of Title IX Compliance will notify the Reporting Party, the Responding Party and the Vice Provost for Faculty Affairs when its investigation is concluded.
 
=== Education and Training ===
4.10.1 The University is committed to offering educational and training opportunities for the University community to promote awareness and prevention of prohibited conduct as outlined in this policy. Members of the Office of Title IX Compliance provide in-person training on recognizing, preventing and responding to reports of discrimination, harassment and retaliation. To request a presentation or training, or for additional information, please contact the Office of Title IX Compliance.
 
== Additional References ==
:[https://facultyhandbook.appstate.edu/ Faculty Handbook]
:[http://policy.appstate.edu/EHRA_Non-Faculty_Grievances EHRA Non-Faculty Grievances Policy]
:[http://policy.appstate.edu/SHRA_Grievance_and_Appeal SHRA Grievance and Appeal Policy]
:[https://studentconduct.appstate.edu/ Code of Student Conduct]
:[https://www.northcarolina.edu/apps/policy/index.php?pg=dl&id=10866&format=pdf&inline=1 The UNC Policy Manual, Chapter 100.1, The Code, Section 103]
 
== Authority ==
:[https://oshr.nc.gov/policies-forms/eeo/unlawful-workplace-harassment North Carolina Office of State Human Resources - Unlawful Workplace Harassment]
:[https://oshr.nc.gov/policies-forms/eeo/reasonable-accommodation North Carolina Office of State Human Resources - Reasonable Accommodation]
:[https://www.northcarolina.edu/apps/policy/index.php?pg=dl&id=10866&format=pdf&inline=1 The UNC Policy Manual, Chapter 100.1, The Code, Section 103]
:[https://www.ada.gov/pubs/adastatute08.htm Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, et seq.)]
:[https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations Title II, Civil Rights Act of 1964, as amended (42 U.S.C. 2000a, et seq.)]
:[https://www.justice.gov/crt/fcs/TitleVI-Overview Title VI, Civil Rights Act of 1964, as amended (42 U.S.C. 2000d, et seq.)]
:[https://www.eeoc.gov/laws/statutes/titlevii.cfm Title VII, Civil Rights Act of 1964, as amended (42 U.S.C. 2000e, et seq.)]
:[https://legcounsel.house.gov/Comps/Rehabilitation%20Act%20Of%201973.pdf Rehabilitation Act of 1973, as amended (29 U.S.C. 701 et seq.)]
:[https://www.dol.gov/vets/programs/userra/ Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 4301, et seq.)]
:[https://www.eeoc.gov/laws/statutes/gina.cfm Title II, Genetic Information Nondiscrimination Act of 2008 (PL 110-233)]
:[https://www.dol.gov/ofccp/regs/statutes/4212.htm Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212 et seq.)]
:[http://www.ncleg.net/gascripts/statutes/Statutes.asp N.C.G.S. §§ 95-241, 126-1.1, 126-5,126-7.1, 126-14, 126-14.1, 126-14.2, 126-16, 126-17, 126-34.01, 126-34.02, 126-82, 126-85, 168A-3, 168A-5, and 168A-10;  25 NCAC 01J .1101, 25 NCAC 01J. 1302]
 
== Contact Information ==
:Office of Title IX Compliance (828-262-2144)
:Office of Human Resources (828-262-3186)
 
== Original Effective Date ==
:March 6, 2012
:March 6, 2012


== Revision Dates ==
== 9 Revision Dates ==
:June 23, 2012
:June 23, 2012
:April 24, 2014
:April 24, 2014
:December 8, 2015
:December 8, 2015
:June 21, 2017 (This revision combined and superseded two prior policies: 602.2 Harassment, Discrimination and Retaliation; and 401.2 Harassment and Discrimination.)
:June 21, 2017
:July 31, 2018 (This revision consisted only of the name change for the Office of Equity, Diversity and Compliance - now Office of Title IX Compliance; and title change for Associate Vice Chancellor for Equity, Diversity and Compliance - now Director of Investigations and Title IX)
:July 31, 2018
:March 2, 2020
:August 14, 2020
:November 4, 2022
:August 27, 2024
 
[[Category:Contents]]
[[Category:Governance and Administration]]

Latest revision as of 12:54, 4 September 2024

Policy 110

1 Introduction

1.1 The purpose of this policy is to support Appalachian State University’s (the “University”) commitment to creating and maintaining an equitable and institutional environment free from Discrimination, Harassment, and related Retaliation.

1.2 This policy defines Prohibited Conduct that is adverse to the University’s commitment to preventing Discrimination and Harassment, establishes oversight, and provides an administrative framework for reporting, investigating, adjudicating, and resolving violations of this policy.

2 Scope

2.1 This policy applies to all members of the University community, including Students, Employees, and Third-Parties.

3 Definitions

3.1 Consent

An affirmative decision by all participants to engage in mutually acceptable sexual activity. Consent means clear, knowing, and voluntary approval given by words, non-verbal, or demonstrated actions to engage in sexual activity, which is freely and mutually understandable. Consent must be ongoing throughout the sexual activity, and any party can withdraw Consent at any time.

3.2 Discrimination

Conduct based on an individual’s Protected Status that is an unlawful or otherwise prohibited preference for, or detrimental treatment of, one individual compared to other individuals. The conduct must be sufficiently serious to unreasonably interfere with or limit:

(a) an Employee’s or applicant for employment’s access to employment, terms or conditions of employment, or benefits of employment;
(b) a Student’s or applicant for admission’s ability to participate in, access, or benefit from the University’s educational programs, services, or activities; or
(c) a volunteer or visitor’s ability to participate in, access, or benefit from a University program or service.

3.3 Employee

An individual employed by the University, including but not limited to those holding temporary, probationary, time-limited, full or part-time, SHRA, EPS, SAAO, Faculty, Student Employees, and Non-Student Temporary positions.

3.4 Harassment

Communication in any form (including verbal, physical, electronic, or written) or conduct based on an individual’s Protected Status that is protected by federal law, state law, or University policy that creates a Hostile Environment or involves a Quid Pro Quo exchange that unreasonably interferes with the individual’s education, employment, or participation in a University program or activity. Not all harassing communication or conduct rises to unlawful harassment.

3.4.1 Hostile Environment

Communication or conduct based on Protected Status that is subjectively and objectively offensive and is so severe or pervasive that it alters the conditions of education or employment; or limits or denies an individual’s ability to participate in or benefit from a University program or activity. An isolated incident, unless sufficiently severe, does not constitute a Hostile Environment.

3.4.2 Quid Pro Quo

Conduct based on Protected Status whereby submission to or rejection of such conduct is explicitly or implicitly: (a) a term or condition of an individual’s employment, education, or receipt of University services or benefits; or (b) is used as the basis for decisions adversely affecting an individual’s education, employment, or participation in a University program or activity.

3.4.3 Sex-Based Harassment

Sex-based harassment is a form of sex discrimination that includes sexual harassment and other harassment based on sex (including pregnancy, childbirth, and related medical conditions, sexual orientation, and gender identity) that includes Sex-Based Quid Pro Quo, Sex-Based Hostile Environment, and Specific Offenses (i.e. Sexual Assault, Dating Violence, Domestic Violence, and Stalking), and other conduct based on sex (i.e. sex-based stereotypes, sexist comments, or facially neutral offensive conduct motivated by sex).

3.4.4 Sex-Based Hostile Environment

Unwelcome conduct based on sex that either (a) occurs within an educational program or activity that is severe, pervasive, and objectively offensive, or (b) that is subjectively and objectively offensive and is so severe or pervasive that it alters the conditions of employment or education; or limits or denies an individual’s ability to participate in or benefit from a University program or activity. An isolated incident, unless sufficiently severe, does not constitute a Sex-Based Hostile Environment.

3.4.5 Sex-Based Quid Pro Quo

An Employee conditioning the provision of any aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.

3.4.6 Specific Offenses

Specific Offenses include:

3.4.6.1 Sexual Assault is any sexual act directed against another individual, without their Consent, including instances where the individual is incapable of giving Consent. Sexual Assault includes:
  1. the penetration of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without Consent;
  2. the touching of the private body parts of another person for the purpose of sexual gratification, without Consent;
  3. sexual intercourse with a person who is under the statutory age of consent; or
  4. sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
3.4.6.2 Dating Violence is conduct defined as violence committed by an individual (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 a consideration of the length of the relationship; type of relationship; and frequency of interaction between the individuals involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
3.4.6.3 Domestic Violence is felony or misdemeanor crimes of violence committed by (i) a current or former spouse of the victim, (ii) a current or former intimate partner of the victim, (iii) a person with whom the victim shares a child in common, (iv) a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, (v) a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction, or (vi) any other person against an adult or minor victim who is protected from that person’s acts under the domestic or family laws of the jurisdiction.
3.4.6.4 Sexual Exploitation is when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and when that behavior does not otherwise constitute one of the other forms of Prohibited Conduct offenses.
3.4.6.5 Stalking is engaging in any actions on more than one occasion directed at a specific individual that places or is likely to place a reasonable individual in fear or at risk of physical, mental, or emotional harm to themselves or others. Such actions may occur directly, indirectly, or through a third party, and may include, but are not limited to, unwelcome communication of any type (e.g., face-to-face, telephone calls, voice messages, electronic mail, written letters, or notes); unwanted gifts; pursuing/following; observing/surveillance; or interference with property. Reports of stalking will be assessed on an individualized basis to determine the applicable University office and procedures used to resolve alleged incidents.

3.5 Prohibited Conduct

Conduct which includes Discrimination, Harassment, or related Retaliation.

3.6 Protected Status

Individuals whose characteristics are protected under federal law, state law, UNC System policies or University policies. Protected status includes age, color, disability, gender, gender expression, gender identity, genetic information, national origin, political affiliation, race, religion, sex (including pregnancy, childbirth, or related medical conditions), sexual orientation, or veteran status.

3.7 Resolution Procedures

Procedures governing the University’s response to reports of Prohibited Conduct, investigatory processes, adjudication, and resolution of violations of University policy or applicable law.

3.8 Retaliation

Intimidation, threats, coercion, or discrimination against any individual, or an individual’s spouse, partner, or other person with a close personal relation to the individual, because the individual has reported information, made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this policy, including in a facilitated resolution process. Retaliation may be found even when an underlying report or complaint made in good faith was not substantiated.

3.9 Student

An individual who has accepted an offer of admission to the University, is currently enrolled in coursework or has registered for coursework at the University, has a continuing relationship with the University, is auditing coursework, or is participating in an educational program sponsored by or affiliated with the University. In general, the continuing relationship ends upon conferral of a degree, termination of the relationship, or a break in enrollment of twelve (12) consecutive months after the last semester attended at the University.

3.10 Third-Party

An individual who either participates in or is attempting to participate in a University program or activity or conducts business on behalf of or at the request of the University, including but not limited to contractors, vendors, visitors, or guests.

4 Policy Statement

4.1 Reporting

4.1.1 Generally. Any person may report an allegation of Prohibited Conduct as defined in this policy. Individuals reporting Prohibited Conduct allegations should report to the Office of Access & Equity: Equal Opportunity (“EO”).

4.1.2 Required Reporting. All employees are required to report any information that may indicate the occurrence of Prohibited Conduct to EO as promptly as possible, but in no event after forty-eight (48) hours (2 business days) with the exception of confidential employees acting in an official confidential role, such as University counseling services, Ombuds, Student Health Service, pastoral counselors, and Student Legal Services.

4.2 Applicable Resolution Procedures

4.2.1 EO responds to reports of Prohibited Conduct and utilizes Resolution Procedures to address and remedy the alleged Prohibited Conduct. Resolution Procedures shall be governed and administered by EO to ensure fair and equitable resolutions, which shall include due process protections for individuals alleged to have engaged in Prohibited Conduct. Such applicable procedures shall be made readily available through EO.

4.3 Standard of Proof

4.3.1 The evidentiary standard for all violations of this policy, utilized to determine whether an individual is responsible for an alleged violation(s), shall be a preponderance of the evidence. This standard is met when the evidence shows that it is “more likely than not” that the alleged Prohibited Conduct occurred.

4.4 Privacy and Confidentiality

4.4.1 Information obtained by the University in response to allegations of Prohibited Conduct shall be reviewed in a manner that considers an individual's preferences for privacy with the University’s legal obligations and its obligations to provide a safe and nondiscriminatory environment. Complete confidentiality cannot be guaranteed, and information may be shared as necessary to investigate or address the Prohibited Conduct, fulfill legal obligations, or pursuant to University policies.

4.5 Enforcement

4.5.1 The University shall enforce violations of this policy in accordance with applicable federal and state law, and UNC System policies. Violations of this policy may result in grounds for disciplinary action, up to and including termination or expulsion.

5 Additional References

Code of Student Conduct
Equal Opportunity
EPS_Grievances
Faculty Handbook
Policy_Statement_on_the_Family_Educational_Rights_and_Privacy_Act_of_1974,_as_Amended
Personnel Records Policy
SHRA_Grievance_and_Appeal
The UNC Policy Manual, Chapter 100.1, The Code, Section 103

6 Authority

North Carolina Office of State Human Resources - Unlawful Workplace Harassment
North Carolina Office of State Human Resources - Reasonable Accommodation
The UNC Policy Manual, Chapter 100.1, The Code, Section 103
Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, et seq.)
Section 504 of the 1973 Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.)
Title II, Civil Rights Act of 1964, as amended (42 U.S.C. 2000a, et seq.)
Title IV, the Violence Against Women Act, Violence Crime Control and Law Enforcement Act of 1994
Title VI, Civil Rights Act of 1964, as amended (42 U.S.C. 2000d, et seq.)
Title VII, Civil Rights Act of 1964, as amended (42 U.S.C. 2000e, et seq.)
Title IX of the Education Amendments Act of 1972
Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990
Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 4301, et seq.)
Title II, Genetic Information Nondiscrimination Act of 2008 (PL 110-233)
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212 et seq.)
Pregnancy Discrimination Act of 1978 (95 U.S.C. 555, et seq.)
Age Discrimination Act of 1967 (29 U.S.C. 621 et seq.)
N.C. Gen. Stat. § 95-241
N.C. Gen. Stat. §§ 126-1.1, 126-5,126-7.1, 126-14, 126-14.1, 126-14.2, 126-16, 126-17, 126-34.01, 126-34.02, 126-82, 126-85
N.C. Gen. Stat. §§ 168A-3, 168A-5 168A-10
25 NCAC 01J .1101 and 25 NCAC 01J. 1302

7 Contact Information

Office of Access and Equity [1] (828-262-2144)
Office of Academic Affairs [2] (828-262-2070)
Office of Human Resources [3] (828-262-3187)
Office of Student Conduct [4] (828-262-2704)

8 Original Effective Date

March 6, 2012

9 Revision Dates

June 23, 2012
April 24, 2014
December 8, 2015
June 21, 2017
July 31, 2018
March 2, 2020
August 14, 2020
November 4, 2022
August 27, 2024
Retrieved from "https://policy.appstate.edu/index.php?title=Discrimination_and_Harassment&oldid=26448"