University of the Virgin Islands Sexual Misconduct Policy June 4, 2016 David Hall Henry C. Smock President Chairman of the Board Approved for recommendation by the Finance & Budget Committee of the Board on May 19, 2016 to the UVI Board for consideration. Amendment approved by the UVI Board of Trustees June 4, 2016. 2 | P a g e I. POLICY STATEMENT, SCOPE AND DEFINITIONS A.1. POLICY STATEMENT The University of the Virgin Islands is committed to uncompromised integrity and to doing all within its power to ensure a working environment that is inclusive and respectful of diversity and which promotes intellectual growth and development, and support the academic pursuits of faculty, students and staff. It is critically important that we create a safe and supportive environment for all students, employees and visitors. We must always be mindful of our responsibilities to others and ensure that there are clear guidelines for the resolution of concerns and complaints. The University strictly prohibits any acts of sexual misconduct or sexual harassment. Sexual misconduct in the workplace is unacceptable and will not be tolerated in any form. It is our goal to build on the positive environment that exists at the University of the Virgin Islands and ensure that it remains a safe and inviting place to study, work and meet. A.2. SCOPE This policy applies to all members of the University of the Virgin Islands (UVI) community in both on-and off- campus sponsored events and activities, or through the use of electronic and/or digital media. Members of the UVI community are encouraged to promptly report observance of and/or complaints about sexual harassment, sexual misconduct, and unlawful sexual contact to any of the following: supervisor or manager; Title IX Coordinator; EEO Officer; Human Resources; or other UVI administrator/official. Persons found to be in violation of this policy shall be subject to a transfer, or may face disciplinary action which may include, but is not limited to, written warning, demotion, suspension, expulsion, dismissal or termination. F. DEFINITIONS 1. SEXUAL MISCONDUCT Sexual misconduct is defined as non-consensual physical contact of a sexual nature. Acts that constitute sexual misconduct take a variety of forms. Examples of the kinds of conduct that may constitute sexual misconduct include, but are not limited to acts using force, threat, intimidation, or advantage gained by the offended party's mental or physical incapacity or impairment of which the offending party was aware or should have been aware. The use of any drug, including alcohol, judged to be related to the commission of an offense will be considered a contributing factor rather than a mitigating factor. 2. SEXUAL HARASSMENT Sexual harassment is a form of sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended, and Title IX of the Education Amendments of 1972. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following circumstances: 3 | P a g e i. Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress. ii. Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual. iii. The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment. iv. Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the education institution. v. Other Examples of Sexual Harassment: Acts that constitute sexual harassment take a variety of forms. Examples of additional kinds of conduct that may constitute sexual harassment include, but are not limited to: 1) Unwelcome sexual propositions, invitations, solicitations, and flirtations. 2) Threats or insinuations that a person's employment, wages, academic grade, promotional opportunities, classroom or work assignments or other conditions of employment or academic life may be adversely affected by not submitting to sexual advances. 3. FORMS OF GENDER-BASED OR SEXUAL MISCONDUCT INCLUDE: i. Sexual Harassment: Unwelcome, gender-based verbal or physical conduct that is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from an educational program or activity. ii. Non Consensual Sexual Contact: Any intentional sexual touching, however slight and with any object or body part, that is without consent (as defined below) and/or by force or coercion. This includes intentional contact with breasts, buttocks, groin, mouth, or genitals, as well as any other intentional bodily contact that occurs in a sexual manner. iii. Non Consensual Sexual Intercourse: Any sexual penetration or copulation, however slight and with any object or body part that is without consent and/or by force or coercion. Intercourse includes anal or vaginal penetration by a penis, object, tongue, or finger, and oral copulation (mouth and genital/anal contact), no matter how slight the penetration or contact. iv. Sexual Exploitation: Taking non-consensual or abusive sexual advantage of an individual to benefit anyone other than the person being exploited. Examples include: invading privacy, video or audio recording of sexual acts without consent, knowingly transmitting a Sexually Transmitted Infection (STI), sexually based stalking or bullying, or exposing one’s genitals. 4 | P a g e v. Non-Consensual Sexual Expressions: (a) Unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person's body, dress, appearance, or sexual activities; the unwelcome use of sexually degrading language, jokes or innuendoes; unwelcome suggestive or insulting sounds or whistles; obscene phone calls.) (b) Sexually suggestive objects, pictures, videotapes, audio recordings, and electronically-generated communications, or literature placed in the work or study area that may embarrass or offend individuals. Materials with sexual content that are used or displayed in an educational setting must be related to educational purposes. vi. Other gender-based Misconduct: Physical harm, extreme verbal abuse, or other conduct that threatens the health or safety of any person on the basis of actual, expressed, or perceived gender identity, including: a. Discrimination: actions that deprive others of access, benefits, or opportunities based on irrelevant criteria b. Hazing: acts likely to cause physical or psychological harm or social exclusion or humiliation c. Bullying: repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or degrade another person physically or mentally d. Intimate Relationship Violence: violence between those in a sexual and/or comparably personal and private relationship e. Stalking: repeated or obsessive unwanted attention or a menacing pursuit directed toward an individual or group that is likely to cause alarm, fear, or substantial emotional distress. Stalking may take many forms, including following, lying in wait, monitoring, and pursuing contact. Stalking may occur in person or through a medium of communication, such as letters, e-mail, text messages, or telephone calls. In some circumstances, two instances of such behavior may be sufficient to constitute stalking. 4. UNLAWFUL SEXUAL CONTACT Title XIV, Chapter 85 of the Virgin Islands Code prohibits unlawful sexual contact. The University of the Virgin Islands will be guided by the relevant University policy in addressing instances of unlawful sexual conduct by any University student or employee. Examples of unlawful sexual contact, which may also violate this policy on Sexual Harassment, may include, but are not limited to, acts of force, coercion, or intimidation when used to accomplish unlawful sexual contact; physical contact that includes touching, assaulting, impeding or blocking movements. Such acts include but are not limited to rape, assault to commit rape, sexual battery, aggravated sexual battery, statutory rape, sodomy and aggravated sodomy 5. RESPONSIBILITY Individuals who are aware of, or have experienced, an incident of sexual harassment or sexual assault should promptly report the matter to a supervisor, manager, University Administrator, Human Resources, or the University officials designated to receive informal or formal complaints. (Please see pp. 8-10) Under this policy, a third party may also file a complaint if the sexual conduct of others in the education or work 5 | P a g e environment permeates the work or education environment, even if such conduct is not directed at the third party, but occurs in his or her presence, and has the purpose or effect of substantially interfering with the third party's welfare, or academic or work performance. Any University administrator who receives notice of a restraining order should complete the Sexual Harassment Reporting Form and execute a sworn affidavit of the conversations that have taken place between the administrator and the faculty or staff member reporting the harassment. These documents should be submitted to the Title IX coordinator for further processing. 6. RETALIATION Retaliation is defined as any adverse action taken against a person participating in a protected activity because of their participation in that protected activity. No employee, applicant for employment, student, vendor or member of the public shall be subject to restraints, interference, coercion or reprisal for action taken in good faith to seek advice concerning a sexual harassment matter, to file a sexual harassment complaint, or to serve as a witness or a panel member in the investigation of a sexual harassment grievance. Retaliatory acts are a violation of federal law and the Virgin Islands Code and of this sexual harassment policy. Acts of retaliation should be reported immediately to the Title IX Coordinator or to a University Administrator. Acts of retaliation will be investigated and resolved accordingly. 7. MALICIOUS, FALSE ACCUSATIONS Any person filing a complaint that is found to be false or brought with malicious intent will be subject to a transfer, or may face disciplinary action which may include, but is not limited to, written warning, demotion, suspension, dismissal, expulsion, or termination. (This information is adapted, in part, from the ATIXA gender-based and Sexual Misconduct Policy by the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA), 2011). CONSENT A. . WHAT IS CONSENT? Consent is defined as permission to act. It may be given by words or actions, as long as those words or actions create clear, mutually understood permission to engage in (and the conditions of) sexual activity. A party granting consent as defined herein, retains the authority at all times to withdraw their consent. 1. STANDARDS FOR AFFIRMATIVE CONSENT: Consent Must Be: a. Active, not passive. Silence, in and of itself, cannot be interpreted as consent. There is no requirement that an individual resist a sexual act or advance, but resistance is a clear demonstration of non-consent. 6 | P a g e b. Given freely. A person cannot give consent under force, threats, or unreasonable pressure (coercion). Coercion includes continued pressure after an individual has made it clear that he/she does not want to engage in the behavior. c. Provided knowingly. Legally valid consent to sexual activity cannot be given by: i. A person under the legal age to consent. In the United States Virgin Islands, the age of consent is 16 or ii. An individual who is known to be (or based on the circumstances should reasonably be known to be) mentally or physically incapacitated. An incapacitated individual is someone who cannot make rational, reasonable decisions because he or she lacks the capacity to understand the “who, what, when, where, why, or how” of a sexual interaction. This includes a person whose incapacity results from mental disability, sleep, involuntary physical restraint, unconsciousness, use of alcohol or other drugs. iii. Specific permission to engage in one form of sexual activity does not imply permission for another activity. iv. Previous relationships or prior consent do not imply consent to future sexual acts. It is the responsibility of the initiator of the act to receive permission for the specific act. As a result, consent may be requested and given several times by multiple parties during a sexual encounter involving multiple acts. B. POLICY CONSIDERATIONS REGARDING CONSENSUAL RELATIONSHIPS Sexual, romantic, or intimate relationships between persons in an unequal power relationship that appear to be voluntary and welcome may nonetheless constitute sexual harassment under this Policy. Relationships between persons in an unequal power status carry an inherent risk. The relationship may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, past consent may not remove grounds for a later charge of a violation of applicable sections of this Policy. 1. Relationships with Power Differentials: i. Relationships between faculty and subordinate faculty or staff, between administrators and subordinate staff or students; between a supervisor and those employees whom he or she supervises, between a faculty member or teaching assistant and his or her student, or between an employee and a vendor or contractor may give rise to legal and ethical concerns or to conflicts between personal and professional interests. Although such a relationship may be viewed by the parties involved as consensual, that fact alone does not mean that no sexual misconduct exists. ii. In addition, such relationships can result in discrimination or harassment (1) where third parties are adversely affected in academic or employment matters because of a consensual relationship between others; (2) where a consensual relationship creates a hostile and intimidating work or learning environment for third parties; or (3) when a consensual relationship ends, and one of the parties continues behavior which the 7 | P a g e other party has made clear is now unwelcomed. iii. Administrators, supervisors, instructors or mentors shall avoid beginning or having an amorous relationship with a person under their charge, and if he or she is already involved in such a relationship, has the obligation to, disclose such relationship to the University; and to remove him- or herself from the supervisory or mentoring role. In instances where the administrator, supervisor, instructor, or mentor is not in a position to remove him or herself from the supervisory or mentoring role, the relationship shall be terminated unless the amorous relationship existed prior to the supervisory or mentoring role and has been disclosed, in writing, to the University. Except as otherwise permitted hereunder, in the event the relationship is not terminated, the conduct of the administrator, supervisor, instructor or mentor shall be evaluated under and be governed by the applicable University disciplinary policy. In keeping with UVI’s commitment to uncompromised integrity, employees in positions of authority and employees who may have supervisory and/or management oversight of students or other employees should be mindful of their duty to maintain a workplace or educational environment free from discrimination on the basis of sex. Faculty members or administrators residing in University housing or other accommodations are prohibited from cohabitating with a subordinate, faculty, staff or student, unless both parties are married or engaged in an amorous relationship prior to the faculty member or administrator taking up residence in University housing or other accommodations, and the pre-existing relationship has been disclosed, in writing, to the University prior to taking up residence in the University housing or other accommodations. (This information is adapted, in part, from the ATIXA gender-based and Sexual Misconduct Policy by the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA), 2011). FEDERAL AND TERRITORIAL LAWS AND UNIVERSITY POLICIES Sexual misconduct and Sexual harassment are forms of sex discrimination that are prohibited by law and policy including: Federal Law Title VII of the Civil Rights Act of 1964 (Employment) Title IX of the Education Amendments of 1972 (Education) Territorial Law Virgin Islands Code, Title 24, Chapter 17: Discrimination in Employment Virgin Islands Code, Title 10, Chapter 5: Civil Rights Commission V i r g i n Islands Code, Title 14, Chapter 85: Rape and Related Offenses University of the Virgin Islands Documents Employee Policy Manual Faculty Policy Manual Student Handbook 8 | P a g e II. GENERAL PROCEDURES AND INFORMATION A. CONFIDENTIALITY AND REPORTING OF OFFENSES UNDER THIS POLICY University officials, depending on their roles at the University, have varying reporting responsibilities and abilities to maintain confidentiality. Please see Section II (B) below for the identification of those University officials who have an affirmative duty to report. In order to make informed choices, University employees, students and vendors should be aware of confidentiality and mandatory reporting requirements when consulting campus resources. On campus, some resources may maintain confidentiality, offering options and advice without any obligation to inform an outside agency or individual unless the University employee, student or vendor have requested information to be shared. Other resources exist for you to report crimes and policy violations and these resources will take action when you report victimization to them. Most resources on campus fall in the middle of these two extremes; neither the University, nor the law, requires them to divulge private information that is shared with them, except in rare circumstances. The following describes the three reporting options at the University. 1. Confidential Reporting If a reporting party would like the details of an incident to be kept confidential, the reporting party may speak with on-campus counselors, campus health service providers, off-campus local rape crisis counselors, domestic violence resources, or local assistance agencies, all of whom will maintain confidentiality except in extreme cases of immediacy or threat of danger or abuse of a minor. Campus counselors are available for students and the Human Resources Department is available for employees to help free of charge and can be seen on an emergency basis during normal business hours. 2. Informal Reporting Except in severe cases of sexual harassment or sexual misconduct as defined in Section III (A) (2) of this Policy, this policy provides for an early resolution process which is intended to encourage persons who feel that they are subjected to any conduct which is prohibited by this Policy and by law to avail themselves of the informal reporting mechanism outlined in Section III (A) of this Policy. 3. Formal Reporting Options i. University officials who are identified in Section II (B) hereof have an affirmative duty to report a complaint that is within the purview of this Policy. Parties bringing a complaint may want to consider carefully whether they should share personally identifiable details with non-confidential employees, as those details must be shared by the employee with the Title IX Coordinator and/or or designated officials at the University. Non-confidential employees must share all details of the reports they receive with the Title IX Coordinators and/or other designated University officials. ii. If a complainant does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a formal resolution to be pursued, the complainant may make such a request to the Title IX Coordinator or Deputy 9 | P a g e Coordinators, who will evaluate that request in light of the duty to ensure the safety of the campus and comply with federal law. In Section III of this Policy the University provides specific guidance relative to informal and formal complaint resolution procedures. iii. In cases indicating pattern, predation, threat and/or violence, the University will be unable to honor a request for confidentiality. In cases where the victim requests confidentiality, confirms this request in writing, and the circumstances allow the University to honor that request, the University will offer interim support and remedies to the victim and the community, but will not otherwise pursue formal action. A party bringing a complaint has the right, and can expect, to have complaints taken seriously by the University when formally reported, and to have those incidents investigated and properly resolved through these procedures. Formal reporting still affords privacy to the reporter, and only a small group of officials who need to know will be told, including but not limited to: e.g. the Title IX Coordinator, the Dean of Students, if the matter involves as student, the Provost, Chief of Campus Security, or his/her designee and the University President. Information will be shared only as necessary with investigators, witnesses and the responding party. The University will endeavor to keep the number of people with this knowledge as small as possible to preserve the privacy rights of the party bringing a complaint. Additionally, anonymous reports can be made by victims and/or third parties using the online reporting form posted on the University’s website. Note that these anonymous reports may prompt a need for the institution to investigate. B. RESPONSIBILITIES OF MANAGERS AND SUPERVISORS It is imperative that managers and supervisors assist in the establishment of the tone for the strict enforcement of this Policy. University Administrators, Deans, Directors, Cabinet members or Managerial or Supervisory employees have an affirmative duty and are promptly required to report any discrimination, harassment, retaliation or sexual assault that they observe, learn about from others, or reasonably suspect has occurred with respect to any person covered by this Policy. University officials who have an affirmative duty to report are referred to herein as Non-confidential employees for purposes of the reporting obligations under this Policy. Any University manager or supervisor who receives notice of a restraining order should complete the Sexual Harassment Reporting Form and execute a sworn affidavit of the conversations that have taken place between the administrator and the faculty or staff member reporting the harassment. These documents should be submitted to the Title IX coordinator for further processing. C. INFORMATION, COUNSELING / ADVOCACY The University of the Virgin Islands encourages members of the University community to reach out to University resource persons regarding sexual m i s c o n d u c t matters, irrespective of whether there is a desire to lodge an informal or formal complaint. Students, faculty, and staff are encouraged to seek information, advice, or counseling on matters related to sexual harassment, generally, or in instances where there is uncertainty about whether the behavior being experienced is sexual harassment. 5. WHERE TO GO FOR HELP a) STAFF Staff members who would like to report an incident of sexual misconduct which may involve 10 | P a g e them personally or a third party should do so as soon as possible after the incident has occurred. Generally, the University will make every effort to complete investigations of sexual harassment complaints within 45 business days, unless there are compelling reasons why this timeframe cannot be met. In instances where an investigation may take longer than 45 business days, the individual who made the complaint will be apprised of the delay and will be provided the reason(s) for the delay. Staff members will be asked to complete the Sexual Misconduct Reporting Form for Faculty and Staff [See Appendix II] whether the complaint is to be pursued formally or informally. If a complainant is desirous of pursuing a complaint formally, the Department of Human Resources will facilitate the process with the designated campus Title IX Coordinator. In instances where sexual harassment complaints are made to immediate supervisors and managers, the matter should be addressed through the procedures set forth in Section III, hereof, in coordination with the Human Resources Department, either as a part of the Early Resolution process, or through the internal Grievance Procedure. b) FACULTY Faculty members who would like to report an incident of sexual harassment that may involve them personally or a third party should do so as soon as possible after the incident has occurred. Faculty will be asked to complete the Sexual Harassment Reporting Form for Faculty and Staff [See Appendix II]. Generally, the University will make every effort to complete investigations of sexual harassment complaints within 45 business days, unless there are compelling reasons why this timeframe cannot be met. In instances where an investigation may take longer than 45 business days, the individual who made the complaint will be apprised of the delay and will be provided the reason(s) for the delay. Faculty members are urged to consult the Faculty Policy Manual, or subsequent governing policy, as may be amended from time to time, for details regarding the procedures that govern sexual harassment charges that faculty members bring against a fellow faculty member. In instances where sexual harassment complaints are made to the Deans of Schools and Colleges, the Chair of an academic department, or to any immediate supervisor or manager, the matter should be addressed through the procedures set forth in Section III, hereof, in coordination with the Human Resources Department, either as a part of the Early Resolution process, or through the internal Grievance Procedure. c) STUDENTS Students should be aware that the procedures that govern the review of incidents of sexual harassment differ depending on whether the alleged sexual harassment incident involved faculty or staff persons, or whether an alleged incident involves another student. Students who would like to report an incident of sexual harassment either on their own behalf or involving another student, should do so as soon as possible after the incident has occurred. Generally, the University will make every effort to complete investigations of sexual harassment complaints within 45 business days, unless there are compelling reasons why this timeframe cannot be met. In instances where an investigation may take longer than 45 business days, the 11 | P a g e individual who made the complaint will be apprised of the delay and will be provided the reason(s) for the delay. In instances where sexual harassment complaints are made to the Deans of Schools and Colleges, the Chair of an academic department, or to any student advisor, supervisor or manager, the matter should be addressed through the procedures set forth in Section III, hereof, in coordination with the Human Resources Department, either as a part of the Early Resolution process, or through the internal Grievance Procedure. Students will be asked to complete a Student Sexual Harassment Reporting Form [See Appendix III] whether the complaint is to be pursued formally or informally. For formal complaints, the Dean of Students on the campus where the reported incident is alleged to have occurred will facilitate the process with the designated campus Title IX Coordinator. Special Note to Students: Students are advised that the University of the Virgin Islands’ response to students’ reports of alleged sexual harassment will be based on the U.S. Department of Education’s Office of Civil Rights Title IX, Revised Sexual Harassment Guidance, (2001), as may be amended from time to time. Title IX applies to all higher education institutions that receive federal funds. Thus, as a recipient of federal funds, Title IX applies to UVI. Under Title IX, sexual harassment of students is considered to be a form of sexual discrimination, and as such, is prohibited. Essentially, based on the referenced guidelines by the Office of Civil Rights of the U.S. Department of Education, once a “responsible employee” or an employee who is in a position to make a decision regarding an allegation of sexual harassment, has knowledge of such an incident involving a student, UVI is then obligated to investigate the complaint and timely and effectively address the matter with corrective action, such that the sexual harassment does not recur, and a hostile environment is either not established or is removed. This obligation exists whether a student decides to follow the early resolution or formal grievance process within this policy. 6. GENERAL INFORMATION APPLICABLE TO STUDENTS, FACULTY AND STAFF The University of the Virgin Islands is committed to providing support for all of its employees and to ensuring a work place free of hostility. As such, in addition to the Title IX Coordinators on each campus, the University provides opportunities for faculty, staff and students seeking information or needing advice and guidance on issues related to sexual harassment to speak with a liaison. A listing of liaisons appears in Appendix I. Additionally, a copy of the University’s Sexual Harassment Policy and the procedures governing the investigation and resolution of sexual harassment complaints may be found at the University’s website at www.uvi.edu, in the University’s libraries, the Student Affairs Office, the Human Resources Department, and the offices of the Title IX Coordinators. 12 | P a g e III. RESOLUTION PROCESS SEXUAL HARASSMENT COMPLAINT RESOLUTION PROCEDURES The University of the Virgin Islands will act on any formal or informal complaint or notice of violation of this Policy that is received by the Title IX Coordinator or EEO Designee, any University Administrator, Deans, Director, Cabinet Member, Student Advisors or Manager, whether such complaint is made by the complainant party or any a third party. As noted above, confidentiality will be maintained where possible and desired, but safety and security of the campus and all persons who are subject to the protections afforded by this Policy is the paramount and controlling objective. Any University Administrator, Dean, Director, Cabinet Member, or other Managerial or Supervisory employee who receives a report of a potential violation of this Policy is expected to promptly contact the Title IX Coordinator within the next business day after receiving a report. In accordance with Section II (B) hereof, a complaining party should be advised by the Manager, Administrator, Director, Cabinet member, or other University administrator, Deans, Director, Cabinet Member or other Managerial or Supervisor employee that such University official has an affirmative duty to report the complaint of sexual harassment or other misconduct to the appropriate University official for investigation, where the University’s interest in safety and security of the campus outweighs the interest in maintaining strict confidentiality.. If the complaining party refuses to initiate, or authorize the initiation of the Early Resolution or Formal Grievance procedure on his/her behalf, then the University Administrator, Dean, Director, Cabinet Member or other Managerial or Supervisory employee shall prepare and execute a sworn affidavit of the conversation(s), and the affidavit shall be submitted to the Title IX Coordinator. The Title IX Coordinator will then proceed on the basis of the steps outlined in the procedure and make a determination to pursue Early Resolution, or to move to the Formal Investigation stage, as further set forth herein. The procedures set forth herein will apply to all complaints involving members of the University community, including faculty, staff and students, contractors, subcontractors and all vendors. Redress and requests for responsive actions for complaints against non-members of the University community are also covered by these procedures. A. EARLY RESOLUTION 1. The Early Resolution process is intended to encourage persons to come forward who feel that he or she is being sexually harassed, and provides several avenues of communication, information and resolution. The aim of the Early Resolution process is not to determine whether there was intent to harass, but to ensure that the alleged offending behavior ceases and the matter is resolved promptly. No disciplinary action is taken in resolving a complaint as a part of the Early Resolution process. The Early Resolution process is inappropriate and should not be used for severe cases of sexual harassment/sexual assault, or cases where the alleged victim has filed a previous complaint of sexual harassment; or where the alleged harasser has had a previous complaint of sexual harassment filed against him or her. 2. For purposes of this Section III (A), severe cases shall include cases where unwelcomed conduct of a sexual nature involves: 13 | P a g e a) physical touching; b) the display or dissemination of sexually suggestive objects, photographs, cartoons, posters, videotapes, audio recordings, emails, or other material of a sexual nature that is degrading, derogatory or inappropriate in the work or academic environment (excepting therefrom material that is used, or to be used, in the furtherance of the work or the academic subject); c) any incident involving the presence or dissemination of pornographic material; d) any incident that is coupled with threats of physical violence or bodily harm; or e) A threat or actual adverse employment action or the unreasonable interference with, denial or limitation on an employee, student or vendor’s ability to participate in or benefit from an educational program or activity. 3. The foregoing list of examples of unwelcomed conduct which characterizes “severe cases” is not intended to be an exhaustive list. 4. There is no requirement that the individual use the Early Resolution process before filing a formal grievance, or that the grievance be put into writing by the Complaining party before the Early Resolution procedures are utilized. 5. Once invoked, a party may withdraw from the Early Resolution procedures and formally request that their complaint be considered under the Formal Investigation procedures herein. Early Resolution takes place in consultation with the Department of Human Resources and may involve: 1. Requesting that the Title IX Coordinator speak with the alleged offender regarding the conduct for which there has been a complaint. 2. Meeting with the alleged offender and a third party to explain the complaining party’s feelings of being sexually harassed, and to discuss the University’s Policy on sexual harassment. Possible Outcomes of an Early Resolution process: 1. The complaint is resolved to the satisfaction of both the complaining party and the respondent. 2. The complaint is not resolved. In this case where resolution of the complaint is not possible utilizing the Early Resolution process, the Title IX Coordinator shall advise the grievant of the option to file a formal grievance, in accordance with the procedures herein. B. FORMAL GRIEVANCE PROCEDURE If the decision is made to move to a Formal Investigation, the investigation must commence within five (5) business days of the receipt of the complaint. A formal written complaint is not required to initiate an investigation, the complaining party should be encouraged to create a formal written complaint. Upon initiation of the complaint, by written submission or orally, the Title IX Coordinator is responsible for leading the investigation of the allegations and forwarding a recommendation to the Provost. The investigation will proceed as follows: Interviews will be conducted by the Title IX Coordinator of all persons who have or may have knowledge of facts related to the allegations. All investigations will be thorough, reliable and impartial. Statements will be compiled and reviewed, and the accused will be advised of the allegations at the onset of 14 | P a g e the formal investigation into the allegations. In the presence of a representative from Human Resources, the respondent (accused) will be advised of the allegations, the process which will be followed to investigate the allegations, and the appeals process. If in the judgment of the Title IX Coordinator, in consultation with the Human Resources Department and Legal Counsel, the safety or security of any member(s) of the campus community may be jeopardized by the presence on-campus of the accused individual or the ongoing activity of a student organization whose behavior is in question, the Title IX Coordinator (or his or her designee) may recommend to the Provost interim remedies intended to address the immediate or short-term effects of the alleged harassment, discrimination and/or retaliation; i.e. to redress harm to the alleged victim and the community and to prevent further violations. These remedies may include referral to counseling, altering the housing situation of an accused student or resident employee (or the alleged victim, if desired), altering work arrangements or employees, implementing contact limitations between the parties, offering adjustment to academic deadlines and/or course schedules. The University Provost may suspend a student, employee or organization on an interim basis pending completion of the formal investigation and procedures. In all cases in which an interim suspension is imposed, the student, employee or student organization, will be given an opportunity to meet with the Title IX Coordinator prior to such suspension being imposed, or as soon thereafter as reasonable possible, to show cause why the suspension should not be implemented. For purposes of this policy, the University Provost has the sole discretion to implement or to stay an interim suspension and to determine its conditions and duration. Violation of an interim suspension under this policy will be grounds for expulsion or termination. During an interim suspension or administrative leave, a student or employee may be denied access to University housing, and/or to campus facilities and events. As determined by the Provost or designee, this restriction includes classes and/or all other University activities or privileges for which the student or employee might otherwise be eligible. At the discretion of the Provost or designee, alternative coursework options may be pursued to ensure as minimal an academic impact as possible on the accused student or employee. Employees suspended on an interim basis will normally continue to be paid during the suspension. The Title IX Coordinator shall, within fifteen (15) business days of the receipt of a sexual harassment complaint, prepare a detailed report containing investigative findings and recommendations and forward the same to the Provost for review and determination. The Provost’s review can include meeting with the complaining party and the accused to discuss the findings; or speaking with witnesses or requesting additional information not contained in the investigative summary in order to make a determination. The Provost’s decision must be rendered within fifteen (15) business days from the date that the Title IX Coordinator’s investigative findings are presented to her/him for review. The Provost’s findings and decision should be communicated to both parties in writing, via certified mail and by hand delivery, if possible. The findings and decision of the Provost and copies of the letters to both parties submitting the findings and decision shall also be forwarded to the Title IX Coordinator who shall serve as the custodian of the files and records of matters under this procedure. After receiving the decision of the Provost, if either party disagrees with the decision, he or she may file a notice of appeal with the Provost to request an impartial review in accordance with Section III hereof. The notice of appeal must be served upon the Provost by either the Complaining party or the Respondent within five (5) business days of receipt of the Provost’s findings and decision. If either party fails to file an appeal within the five (5) business days, the decision of the Provost shall become final. 15 | P a g e In the event a complaint pursuant to this Policy is made against the Title IX Coordinator, the Provost or the President the procedures shall be as follows: 1. In the event a complaint pursuant to this Policy is made against the Title IX Coordinator, the University President shall designate a substitute Title IX Coordinator and the process set forth above shall be followed with the substitute Title IX Coordinator investigating the charge of sexual harassment, discrimination, retaliation or other violation of this Policy and reporting his/or findings and determination to the University Provost. 2. In the event a complaint pursuant to this Policy is made against the Provost or the President, the Chairperson of the Board of Trustees for the University shall within seven (7) business days of such complaint designate an Investigator to review the complaint, to interview witnesses, marshal the evidence and to prepare a report of their Findings and Recommendations for submission to Chairperson of the Board of Trustees. The Investigator shall submit his/her Findings and Recommendation to the Board Chairperson within fifteen (15) business days of the receipt of the complaint of sexual harassment. The Chairperson, in consultation with legal counsel, shall prepare his report and determination for the consideration and decision of the Executive Committee of the Board of Trustee and such report shall be submitted to the Executive Committee of the Board of Trustees within fifteen (15) business days of the date the Investigator submits his/her report to the Board Chair. The decision of the Executive Committee, shall be subject to review and ratification or modification by the Board of Trustees and its decision with respect to such matters shall be final. C. APPEALS 1. Appeals To The Faculty Grievance Committee: a. If the party appealing the decision of the Provost is a faculty member (as defined in Section 4.1 of the Faculty Policy Manual (2008)) and is the Respondent, the appeal shall be made to the Faculty Grievance Committee (“FGC”). The FGC is established in accordance with Article 9.iii of the Faculty Policy Manual. The appeal must be in writing and must state the nature of the complaint, the grounds upon which the appeal is being made, and if applicable, the remedy being sought. b. The Faculty Grievance Committee shall hear the appeal of the Provost’s findings and decision in accordance with Article 9.v of the Faculty Policy Manual, as may be amended from time to time. c. Within ten (10) business days from the date the appeal is presented to the FGC, the Committee shall review the findings and decision of the Provost and shall submit its written recommendation to the Complainant, Respondent and to the President no later than five (5) business days following the conclusion of the hearing on the appeal. Either the Complainant or the Respondent may appeal the recommendation of the Faculty Grievance Committee within three (3) business days following the receipt of the recommendation. d. The appeal must be in writing and must state the nature of the complaint, the grounds upon which the appeal is being made, and if applicable, the remedy being sought and must be submitted to the President, or his designee, within three (3) business days following the receipt thereof, or it is untimely. The President shall have the right to act on the appeal in accordance with Section D herein. 16 | P a g e 2. Appeals to the Personnel Review Committee a. Except for Respondents who are faculty members, all other parties may appeal to the Personnel Review Committee, as constituted in the Human Resources Policy Manual, as may be amended from time to time. The appeal must be in writing and must state the nature of the complaint, the grounds upon which the appeal is being made, and if applicable, the remedy being sought. b. The Personnel Review Committee shall consist of (3) three members selected and appointed by the President, such appointment to be made no more than five (5) business days after the appeal is filed with the Provost; provided however that in the case of a Respondent who is a student, the President shall include no less than one student as a member of the Personnel Review Committee who will be charged with reviewing an appeal concerning charges which are brought under this Policy against a student- Respondent. The Chair of the Personnel Review Committee shall, within ten (10) business days from the date the appeal is presented to the Committee, convene a hearing to review the findings and decision of the Provost, if requested by the Complainant or Respondent. c. At the hearing, the Personnel Review Committee shall give the Complainant and Respondent an opportunity to present evidence and to otherwise be heard, within the discretion of the Committee. The hearing shall be recorded by the Committee. d . The Personnel Review Committee shall submit its written recommendation to the Complainant, Respondent and to the President no later than five (5) business days following the conclusion of the hearing on the appeal. e. Either the Complainant or the Respondent may appeal the recommendation of the Personnel Review Committee within three f. (3) business days following the receipt thereof. The appeal must be in writing and must state the nature of the complaint, the grounds upon which the appeal is being made, and if applicable, the remedy being sought and must be submitted to the President, or his designee, within three (3) business days following the receipt of the recommendation, or it is untimely. g. The President shall have the right to act on the appeal in accordance with Section D herein. D. PROCEDURES FOR APPEALS TO THE PERSONNEL REVIEW COMMITTEE 1. Notification of Charges At least one week prior to the hearing, or as far in advance as is reasonably possible if an accelerated hearing is scheduled with the consent of the parties, the PRC Chair will send a letter [by any reasonable means] to the parties with the following information. Once sent, emailed and/or received in-person, notice will be presumptively delivered. The letter will contain: 17 | P a g e • The Decision of the Provost, a description of the alleged violation(s), a description of the applicable procedures and a statement of the sanctions/responsive actions that is recommended by the Provost; the basis of the appeal taken and by whom. • The time, date and location of the hearing and a reminder that attendance is mandatory, superseding all other campus activities. If any party does not appear at the scheduled hearing, the hearing will be held in their absence. For compelling reasons, the Chair may reschedule the hearing. • The parties may confer with an advisor outside of the presence of the hearing participants, but has no right to an attorney or other advisor’s participation during the hearing. The parties to the hearing are expected to ask and respond to questions on their own behalf, without representation by their advisor. The parties may seek a brief recess to consult with the advisor outside of the hearing room. • Hearings for possible violations that occur near or after the end of an academic term will be held immediately after the end of the term or during the summer, as needed, to meet the resolution timeline followed by the University and remain within the 45-day goal for resolution. 2. Hearing Procedures PRC Hearings will be convened, usually within one to two weeks of the completion of the issuance of the Findings and Determination by the Provost, and will be conducted in private. The PRC has the authority to hear all collateral misconduct, meaning that it hears all allegations of discrimination, harassment and retaliation, but also may hear any additional alleged policy violations that have occurred in concert with the discrimination, harassment or retaliation, even though those collateral allegations may not specifically fall within PRC jurisdiction. Accordingly, investigations should be conducted with as wide a scope as necessary. Participants in the hearing will be the PRC Chair and members, the Human Resources Director or designee the Title IX Coordinator or designee who conducted the initial investigation, the complainant and respondent(s) (or up to three organizational representatives in a case where an organization is charged), and any called witnesses. The PRC Chair will provide the names of witnesses the parties intend to and all pertinent documentary evidence at least two business days in advance of the hearing. In addition, the parties will be given a list of the names of each of the PRC panel members at least two business days in advance of the hearing. Should any party object to any panelist, he/she must raise all objections, in writing, to the Chair immediately. Panel members will only be unseated if the Chair, in consultation with the Title IX Coordinator or designee and legal counsel, concludes that their actual or potential bias or conflict of interest may preclude an impartial hearing of the complaint and/or response thereto. Additionally, any panelist or Chair who feels he/she cannot make an objective determination must recuse himself or herself from the proceedings when notified of the identity of the parties and witnesses in advance of the hearing. All parties will have ample opportunity to present facts and arguments in full and question all present witnesses during the hearing. If alternative questioning mechanisms are desired (screens, Skype, questions directed through the Chair, etc.), the parties should request them from the Chair at least two business days prior to the hearing. Once the procedures are explained and the participants are introduced, the PRC Chair will present the Findings and Recommendation of the Provost first. The findings of the Provost are not binding on the PRC panel, though any undisputed conclusions of the Provost will not be revisited and will be accepted as binding on the panel, except as necessary to determine sanctions/responsive actions. Once the report of the Provost’s Findings and Recommendations has been presented, the PRC will permit questioning of and by the parties, and of any present witnesses. Questions may be directed solely through and at the discretion of the Chair. 18 | P a g e Formal rules of evidence will not apply. Any evidence that the panel believes is relevant and credible may be considered, including history and pattern evidence. The PRC Chair will address any evidentiary concerns prior to and/or during the hearing, may exclude irrelevant or immaterial evidence and may ask the panel to disregard evidence lacking in relevance. The PRC Chair will determine all questions of procedure and admissibility of evidence into the record. Anyone appearing at the hearing to provide information will respond to questions on his/her own behalf. Unless the PRC Chair determines it is appropriate, no one will present information or raise questions concerning: (1) incidents not directly related to the possible violation, unless allegations of a pattern have been made, or (2) the sexual history of or the character of the victim/complainant. Where issues of competency or job performance are concerned, the PRC panel will not substitute its judgment of competency or performance for the judgment of other appropriate campus officials; the function of the hearing panel is to determine whether violations of the University’s policies regarding harassment and nondiscrimination have been committed, and issues of competency or performance may only be considered in that context. No observers will be allowed in the hearing unless the PRC by majority vote determines otherwise. The PRC Chair may allow witnesses who have relevant information to appear at a portion of the hearing in order to respond to specific questions from the panel or the parties involved. The panel will not hear from character witnesses, but will accept up to two letters supporting the character of the individuals involved. In hearings involving more than one accused individual or in which two complainants have accused the same individual of substantially similar conduct, the standard procedure will be to hear the complaints jointly; however, the Title IX Coordinator may permit the hearing pertinent to each respondent to be conducted separately. In joint hearings, separate determinations of responsibility will be made for each respondent. Proceedings are private. All persons present at any time during the hearing are expected to maintain the privacy of the proceedings, subject to University disciplinary consequences for failure to do so. While the contents of the hearing are private, the parties have discretion to share their own experiences if they so choose, and should discuss doing so with their advisors. Hearings are recorded, by the PRC Panel only, for purposes of review in the event of an appeal. PRC members, the parties and/or the persons who initiated the action, and appropriate administrative officers of the University will be allowed to listen to the recording in a location determined by the Title IX Coordinator or designee. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator. Persons given access to the recording will be required to sign an agreement confirming that they will protect the privacy of the information contained in the recording. 3. Decisions The PRC will deliberate in closed session to determine whether the respondent is responsible or not responsible for the alleged violation(s) in question. The panel will base its determination on a preponderance of the evidence (i.e., whether it is more likely than not that the accused individual committed the alleged violation(s)). If an individual respondent or organization is found responsible by a majority of the panel, the panel will recommend appropriate sanctions to the Title IX Coordinator. The PRC Chair will prepare a written deliberation report and deliver it to the President if he is not the respondent or to the Board Chair if the President or Provost is the respondent, detailing the findings of the PRC, how each member voted, the information cited by the panel in support of its recommendation and any information the 19 | P a g e hearing panel excluded from its consideration and why. The report should conclude with any recommended sanctions. A copy of the PRC report shall be delivered to the Title IX Coordinator as the custodian of the records. E. DECISION OF THE PRESIDENT Upon receipt of the recommendation from either the Faculty Grievance Committee or the Personnel Review Committee, the President will review the investigative findings and recommendations and shall make a final decision to accept, reject, or modify the Committee’s recommendations, or may request further information. In reviewing the matter under consideration, the President, may in his discretion, but is not obligated to, conduct interviews, meet with witnesses and engage in a de novo review of the matter before rendering his decision. In all cases arising under these procedures, the decision of the President shall be final unless appealable to the Board of Trustees and a notice of appeal is filed with the Board within ten (10) days of the date of receipt of the President’s decision, made in accordance with applicable law or policies of the University. The decision of the President may include, but is not limited to, demotion, suspension with or without pay, termination or dismissal from employment or enrollment at the University. If the President or Provost is the respondent, the Chair shall review the recommendation from the PRC and shall make a final decision in consultation with Legal Counsel, shall prepare his report and determination for the consideration and decision of the Executive Committee of the Board of Trustee and such report shall be submitted to the Executive Committee of the Board of Trustees within fifteen (15) business days of the date the Investigator submits his/her report to the Board Chair. The decision of the Executive Committee, shall be subject to review and ratification or modification by the Board of Trustees and its decision with respect to such matters shall be final. F. EDUCATIONAL PROGRAMS 1. GENERAL Educational programs are essential to the establishment of a campus community that is free of sexual harassment and in which high standards of conduct in consensual relations are maintained. The University of the Virgin Islands seeks to achieve four goals through its educational programs related to sexual harassment awareness: (a) notifying individuals of conduct that is prohibited; (b) ensuring that all faculty, staff and students are aware of their rights; (c) informing administrators about the proper way to address complaints of violations of this policy; and (d) helping educate the faculty, staff and students about the issues addressed within this policy. 2. PREPARATION AND DISSEMINATION OF INFORMATION The Director of Human Resources is charged with developing, coordinating, and disseminating the sexual harassment policy and procedure for the University. Accordingly, the Human Resources Department will provide summaries of this policy to current members of the University community and to those who join the community in the future. A summary of this policy will be included in student and employee orientation materials and handbooks for employees and for undergraduate and graduate students. In addition, copies of this policy will be made available on UVI’s website, www.uvi.edu, the Employee Policy Manual, offices, libraries, and other appropriate campus locations, and will be distributed in sexual harassment awareness and prevention training sessions. 20 | P a g e 3. TRAINING / EDUCATION Sexual harassment awareness and prevention training, workshops, and professional development seminars are available and scheduled from time to time during the academic year. Such training and education will be available to all new employees and periodic updates and training will be provided for current employees. For further information regarding sexual harassment training or education, please contact the Human Resources Office at 340-693-1421. 21 | P a g e APPENDICES 22 | P a g e Appendix I: Sexual Harassment Information Liaisons (key contact personnel within the University)* Type of Incident Name of Liaison Contact Number *To be determined in consultation with key constituency groups, through the University’s Shared Governance process. Liaisons will be identified prior to the promulgation of the approve Policy. 23 | P a g e Appendix II: UVI Sexual Harassment Reporting Form for Faculty and Staff UNIVERSITY OF THE VIRGIN ISLANDS Sexual Harassment Reporting Form [For Faculty and Staff] Name: Date of Complaint: / / Work Address: Work Phone: 1. Please describe, in as much detail as possible, the nature of your complaint. Please include dates and other details that will help with the investigation of your complaint. 2. Please provide names and contact information of any witness(s) who were present when one or more of the details described in item #1 occurred. Name Contact Information Directions: Please use this form to report any instance in which you believe that you have been sexually harassed. Your completed form should be submitted to any of the following individuals: to the Deans of Schools and Colleges, the Chair of an academic department, supervisor or manager, or a representative from the Human Resources Department. Please note, however, that the completion of this form is not required to report an incident involving sexual harassment or to lodge a complaint regarding sexual harassment. 24 | P a g e 3. Please provide the names and contact information of any person(s) with whom you discussed or shared information about the incident(s) that gave rise to this written complaint prior to the filing of this report. Name Contact Information Date Information was Shared 4. Please provide any supporting materials that you have relative to the complaint being filed. (Supporting documents may include e-mails; facsimiles; notes; pictures or other graphics; recorded messages, etc.) 5. How would you like your complaint addressed? a. Through the Early Resolution Process b. Through the Formal Grievance Process Acknowledgment To investigate your complaint, it will be necessary to interview you, the alleged harasser(s), and any witnesses with knowledge of your complaint. The University will notify everyone involved of the confidential nature of the process and that unauthorized disclosures of information concerning the investigation could result in disciplinary action, up to and including termination of employment. The University is committed to handling your complaint with the highest level of professional integrity and confidentiality and to ensuring due process to both the complainant and the respondent. The information provided in this complaint is true and correct to the best of my knowledge. I will cooperate fully in the investigation of my complaint and provide requested evidence deemed relevant by the University. / / Complainant’s Signature Day University Official Receiving Complaint Form: Name: Position Title: /_ / Signature Year Appendix III: UVI Sexual Harassment Reporting Form for Students UNIVERSITY OF THE VIRGIN ISLANDS Sexual Harassment Reporting Form [For Students] Name: Date of Complaint: / / College or School: Student ID Number: Address: Contact Number: 1. Please describe, in as much detail as possible, the nature of your complaint. Please include dates, locations and other details that will help with the investigation of your complaint. 2. Please provide names and contact information of any witness(s) who were present when one or more of the details described in item #1 occurred. Name Contact Information Directions: This form should be used to report any instance in which you believe that you have been sexually harassed. The University’s Sexual Harassment Policy provides a mechanism through which reports of sexual harassment can be investigated and resolved. Your completed form should be submitted to any of the following individuals: to the Deans of Schools and Colleges, the Chair of an academic department, or to any student advisor, supervisor or manager, or a Human Resources representative. 26 | P a g e 3. Please provide the names and contact information of any person(s) at UVI with whom you discussed or shared information about the incident(s) before you completed and submitted this written complaint. Name Contact Information Date Information was Shared 4. Please provide any supporting materials that you have relative to the complaint being filed. (Examples of supporting materials include, but are not limited to, documents; e-mails; facsimiles; notes; pictures or other graphics; and recorded messages) 5. How would you like your complaint addressed? a. Through the Early Resolution Process b. Through the Formal Grievance Process Acknowledgment To investigate your complaint, it will be necessary to interview you, the alleged harasser(s), and any witnesses with knowledge of your complaint. The University will notify all persons involved in the investigation that it is confidential and that unauthorized disclosures of information concerning the investigation could result in disciplinary action. The University is committed to handling your complaint with the highest professional integrity and confidentiality and to ensuring due process to both complainant and the respondent. The information provided in this complaint is true and correct to the best of my knowledge. I will cooperate fully in the investigation of my complaint and provide requested evidence deemed relevant by the University. / / Complainant’s Signature Day Year 27 | P a g e / / Signature Month Day Year Date submitted to Title IX Coordinator: / Month / Day Year University Official Receiving Complaint Form: Name: Position Title: 28 | P a g e References 1. Brown University Sexual Harassment Policy, September 2010. 2. Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties: Title IX. January 2001. U.S. Department of Education, Office of Civil Rights. 3. The Ohio State University Sexual Harassment Policy 1.15 (Revised 2006). [hr.osu.edu/policyhome.htm] 4. V.I. Code Title 14, Chapter 85: Rape and Related Offenses. Sections 1699 – 1709. Michie’s Legal Resources. [http://www.michie.com/virginislands] 5. V.I. Code Title 10, Chapter 5: Civil Rights Commission. Sections 61-64a. Michie’s Legal Resources. [http://www.michie.com/virginislands] 6. Virgin Islands Code, Title 21, Chapter 17: Employment Discrimination – Rules and Regulations; V.I. Department of Labor, 1981. 7. V.I. Code. Title 21, Chapter 17: Discrimination in Employment. Sections 451 – 462. Michie’s Legal Resources. [http://www.michie.com/virginislands] 8. University of the Virgin Islands Employee Policy Manual.