Discrimination and Harassment: Difference between revisions

From Appalachian State University Policy Manual
 
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Policy 110
Policy 110
== Introduction ==
1.1 The purpose of this policy is to support Appalachian State University's ("Appalachian") commitment to providing an institutional environment free from discrimination and harassment.


1.2 This policy serves to address prohibited conduct adverse to Appalachian's commitment to preventing discrimination and harassment, as well as to provide an administrative framework and oversight for reporting, investigating, adjudicating, and resolving violations of this policy.
== 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.


== Scope ==
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.


2.1 This policy applies to all members of the Appalachian community, including students, faculty, staff and others who either participate in University programs or activities, or conduct business on behalf of the University.
== 2 Scope ==
2.1 This policy applies to all members of the University community, including Students, Employees, and Third-Parties.


2.2 This policy applies both to prohibited conduct that occurs: (a) on property owned or controlled by Appalachian, or (b) on property owned or controlled by non-Appalachian entities or individuals that has an adverse or detrimental effect on Appalachian and its employees, employment applicants, students, visitors or volunteers.
== 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.


2.3 Allegations of harassment and discrimination based on gender, gender expression, gender identity, sex or sexual orientation, including instances involving sexual assault, dating violence, domestic violence, or stalking, are subject to this policy and Appalachian Policy 112 – Sex-Based Misconduct Policy. If there is a conflict between Appalachian Policy 112 – Sex-Based Misconduct Policy and this policy for the statuses and conduct referenced in this subsection, then Appalachian Policy 112 – Sex-Based Misconduct Policy shall be controlling.
=== 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.


== Definitions  ==
=== 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.


=== Discrimination ===
=== 3.4 Harassment ===
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:
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.


:(a) an employee or employment applicant's access to employment, terms, conditions or benefits of employment (e.g., hiring, advancement, assignment, etc.);
==== 3.4.1 Hostile Environment ====
:(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
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.
:(c) a volunteer or visitor's ability to participate in, access or benefit from or deliver University's programs or services.


=== Harassment ===
==== 3.4.2 Quid Pro Quo ====
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 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.
:(a) educational environment (e.g., admission, academic standing, grades, assignments, etc.);
:(b) work environment (e.g., hiring, advancement, assignment, etc.); or
:(c) participation in a University program or activity (e.g., campus housing, extra-curricular activities, etc.).


====3.2.1 Hostile Environment====
==== 3.4.3 Sex-Based Harassment ====
::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.
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).


====3.2.2 Quid Pro Quo====
==== 3.4.4 Sex-Based Hostile Environment ====
::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.
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.


=== Protected Status ===
==== 3.4.5 Sex-Based Quid Pro Quo ====
Classes of people who receive certain protections under applicable federal and state law, and UNC System policies, because of their age, color, disability, gender, gender expression, gender identity, genetic information, national origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, or veteran status.
An Employee conditioning the provision of any aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.


=== Retaliation ===
==== 3.4.6 Specific Offenses ====
Any adverse action against an individual, or an individual's spouse, partner, or other person with a close personal relation, for: (a) making or supporting a claim of Discrimination or Harassment, (b) opposing any Discrimination or Harassment, (c) participating in the reporting, investigation, or resolution of alleged violation(s) under this policy, or (d) otherwise engaging in a protected activity under this policy or other associated University policies. 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.
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>


== Policy and Procedure Statements  ==
:'''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.


=== Prohibited Conduct ===
:'''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.
All members of the Appalachian community are prohibited from engaging in Discrimination, Harassment, or Retaliation (collectively, "Prohibited Conduct").


=== Reporting ===
:'''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.
====Reporting and Review of Prohibited 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 that may result in a subsequent 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.


====Supportive / Interim Measures====
:'''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.
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 Appalachian will balance the burden placed on members of the Appalachian community with its interest in ensuring a safe and nondiscriminatory environment.


====Employee Reporting====
=== 3.5 Prohibited Conduct ===
:4.2.3.1 Mandatory Title IX Responsible Employee Reporting
Conduct which includes Discrimination, Harassment, or related Retaliation.
: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.


:4.2.3.2 Other Employee Reporting
=== 3.6 Protected Status ===
: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.
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.


:4.2.3.3 Confidential Resources
=== 3.7 Resolution Procedures ===
: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:
Procedures governing the University’s response to reports of Prohibited Conduct, investigatory processes, adjudication, and resolution of violations of University policy or applicable law.


::(a) they obtain permission from the recipient of the Prohibited Conduct, as addressed under this policy;
=== 3.8 Retaliation ===
::(b) there is a threat to the health or safety of the individual or others; or
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.
::(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
=== 3.9 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.


:4.2.3.4 Other Exemptions
=== 3.10 Third-Party ===
: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.
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.


====Complainants and Respondents====
== 4 Policy Statement ==
For purposes of this policy and administrative office procedures:
=== 4.1 Reporting ===
:(a) a reporting party or "Complainant" is a person who submits an informal report or formal complaint regarding Prohibited Conduct under this policy; and
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
:(b) a responding party or "Respondent" is a person who is alleged to have committed a Prohibited Conduct under this policy.
&amp; Equity: Equal Opportunity (“EO”).


====Privacy and Confidentiality====
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.
Information obtained by Appalachian in response to allegations of Prohibited Conduct will be reviewed in a manner that balances an individual's preferences for privacy with Appalachian’s legal obligations, as well as, its 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.


=== Standard of Proof ===
=== 4.2 Applicable Resolution Procedures ===
For purposes of this policy, the standard of proof used to determine the level of evidence needed to determine whether an individual is responsible for an alleged violation(s) will be the preponderance of the evidence. This simply means that the evidence presented to the administrative office responsible for the review or investigation of the alleged violation tends to prove that it is more likely than not that the alleged respondent(s) 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., formal complaints, police reports, investigation reports), exhibits (e.g., photographs, audio/video information, electronic communications including social media), and written or oral statements of the parties or witnesses. Formal rules of evidence and procedure do not apply.
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.


=== Policy Implementation ===
=== 4.3 Standard of Proof ===
4.4.1 Administrative offices at Appalachian have been identified and tasked with the administration and implementation of this policy. These administrative offices work both independently and jointly to safeguard Appalachian in carrying out the University's commitment to providing an educational or employment environment free from Discrimination and Harassment. Each administrative office will author and publish procedures to process informal reports and formal complaints that will be assessed, investigated, and otherwise resolved in compliance with applicable federal and state laws and regulations, UNC System policies, and policies of the University, as well as in collaboration with other administrative offices.
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.


4.4.2 The administrative offices below are responsible for administrating and implementing this policy (e.g., investigating and adjudicating an alleged violation of Discrimination and Harassment). Each identified office is responsible for collecting reports, questions, and comments, as well as conducting reviews and investigations, related to their office responsibilities. These offices will also be responsible for University Discrimination and Harassment prevention and response training in their respective areas. All reporting, questions, or comments that fall within the scope of this policy should be directed to the applicable administrative office as identified below. Depending on the facts and circumstances, more than one administrative office may be responsible for reviewing a matter that falls within the scope of this policy.
=== 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&#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.


{| class="wikitable"
=== 4.5 Enforcement ===
! Administrative Office !! Responsibility
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.
|-
| Office of Academic Affairs || Reviews all Prohibited Conduct matters governed under this
policy pertaining to faculty employment-related matters.


Any Prohibited Conduct reporting regarding a faculty- member or faculty-member applicant for employment, or questions or comments related to this policy, should be directed to this office.
== 5 Additional References ==
 
:[https://studentconduct.appstate.edu Code of Student Conduct]
This office is responsible for enforcement of the Faculty Handbook.
|-
| Office of Disability Resources || Reviews or investigates all Prohibited Conduct matters governed under this policy pertaining to disability accommodations or accessibility.
 
Any Prohibited Conduct reporting on the basis of disability accommodations or accessibility, or questions or comments related to this policy, should be directed to this office.
|-
| Office of Human Resources || Reviews or investigates all Prohibited Conduct matters governed under this policy pertaining to SHRA, EHR.A non- faculty, temporary, and student employee employment- related matters (e.g., equal employment opportunities, affirmative action).
 
Assists Academic Affairs in investigations of faculty Prohibited Conduct matters pertaining to faculty employment-related matters (e.g., equal employment opportunities, affirmative action).
 
Any Prohibited Conduct reporting regarding a SHRA, EHRA non-faculty, student employee, or temporary employee, or applicant for employment under one of these classifications, or questions or comments related to this policy, should be directed to this office.
 
|-
| Office of Student Conduct || Any Prohibited Conduct reporting related to student conduct, or questions or comments related to this policy, should be directed to this office.
 
This office is responsible for enforcement of the Code of Student Conduct and Academic Integrity Code.
|-
| Office of Title IX Compliance || Reviews or investigates all Prohibited Conduct matters governed under this policy pertaining to gender, gender, expression, gender identity, sex or sexual orientation.
 
Assists Academic Affairs in investigations of faculty Prohibited Conduct matters pertaining to gender, gender expression, gender identity, sex or sexual orientation.
 
Any Prohibited Conduct reporting related to gender, gender expression, gender identity, sex or sexual orientation, including instances involving sexual assault, dating violence, domestic violence, and stalking, or questions or comments related to this policy, should be directed to this office.
|}
 
=== Enforcement ===
Appalachian will enforce violations of this policy in accordance with applicable federal and state law, and UNC System policies. Violations of this policy, including but not limited to the engagement of Discrimination, Harassment, or Retaliation, as defined by this policy, or a Responsible Employee's failure to disclose Discrimination, Harassment, or Retaliation, may result in grounds for disciplinary action, up to and including termination or expulsion.
 
=== Academic Freedom ===
As permitted by federal and state law, Appalachian supports and encourages full freedom of inquiry, discourse, teaching, research, and publication. Such opportunities are afforded in pursuit of knowledge and learning without fear of sanction, unless the manner of expression is found through the administration of this policy to substantially impair the rights of others.
 
=== Appeals ===
Appeals of University decisions will be addressed according to the procedures provided by the respective administrative office responsible for the review or investigation of the alleged violation. Each administrative office will author and publish procedures to resolve appeals.
 
== Additional References ==
:[https://studentconduct.appstate.edu/ Code of Student Conduct]
:[[Equal Opportunity]]
:[[Equal Opportunity]]
:[[EHRA Non-Faculty Grievances]]
:[[EPS_Grievances]]
:[https://facultyhandbook.appstate.edu/ Faculty Handbook]
:[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]]
:[[SHRA_Grievance_and_Appeal]]
:[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.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]


== Authority ==
== 6 Authority ==
:North Carolina Office of State Human Resources - Unlawful Workplace Harassment
:North Carolina Office of State Human Resources - Unlawful Workplace Harassment
:North Carolina Office of State Human Resources - Reasonable Accommodation
:North Carolina Office of State Human Resources - Reasonable Accommodation
Line 147: Line 114:
:Title IV, the Violence Against Women Act, Violence Crime Control and Law Enforcement Act of 1994
: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 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 VII, Civil Rights Act of 1964, as amended (42 U.S.C. 2000e, et seq.)
:Title IX of the Education Amendments Act of 1972
:Title IX of the Education Amendments Act of 1972
:Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990
: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.)
: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)
: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.)
: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.)
:Pregnancy Discrimination Act of 1978 (95 U.S.C. 555, et seq.)
:Age Discrimination Act of 1967 (29 U.S.C. 621 et seq.)
:Age Discrimination Act of 1967 (29 U.S.C. 621 et seq.)
Line 160: Line 127:
:25 NCAC 01J .1101 and 25 NCAC 01J. 1302
:25 NCAC 01J .1101 and 25 NCAC 01J. 1302


== Contact Information ==
== 7 Contact Information ==
:Office of Academic Affairs [https://academicaffairs.appstate.edu/] (828-262-2070)
:Office of Access and Equity [http://eo.appstate.edu] (828-262-2144)
:Office of Disability Resources [https://odr.appstate.edu/] (828-262-3056)
:Office of Academic Affairs [https://academicaffairs.appstate.edu] (828-262-2070)
:Office of Human Resources [https://hr.appstate.edu/] (828-262-3186)
:Office of Human Resources [https://hr.appstate.edu] (828-262-3187)
:Office of Student Conduct [https://studentconduct.appstate.edu/] (828-262-2704)
:Office of Student Conduct [https://studentconduct.appstate.edu] (828-262-2704)
:Office of Title IX Compliance [https://titleix.appstate.edu/] (828-262-2144)


== Original Effective Date ==
== 8 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
Line 178: Line 144:
:March 2, 2020
:March 2, 2020
:August 14, 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
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