SEXUAL HARASSMENT AND MISCONDUCT POLICIES AND PROCEDURES
(Revised Board of Directors, May , 2000)
PART I: POLICY STATEMENT
Sexual harassment undermines the mission of the university and threatens the careers, educational experience and well-being of students, faculty, staff and visitors to the campus. Therefore, it is the policy and goal of Wittenberg University that all students, faculty, staff and guests be free from sexual harassment and sexual misconduct. Although founded on and guided by the laws of the United States and of the State of Ohio, the university's policy against sexual harassment and misconduct is not limited by these laws. The policy is an expression of the academic, residential and professional standards of the Wittenberg community. The university reserves the right to investigate circumstances that may involve harassment in situations where no complaint, formal or informal, has been filed.
This policy applies to all faculty, staff and students. All community members are expected to abide by this policy, whether on campus or away from campus, when engaged in activities sponsored by the university or which otherwise relate to the university or its business. This policy also applies to the activities of recognized student organizations. Those who contract to use Wittenberg’s campus, conduct business on campus or visit the university are expected to adhere to the principles established by this policy.
Members of the university community are responsible for knowing and understanding the university's policy prohibiting sexual harassment and misconduct. Students who do not understand the policy should contact the Office of Student Development. Faculty and staff who do not understand the policy should contact their department chair or supervisor. Department chairs or supervisors who need assistance in understanding, interpreting or applying the policy should contact the associate vice president for human resources.
Once a member of the faculty or staff learns of a sexual harassment or sexual misconduct complaint, written or unwritten, that faculty or staff member is required to notify the associate vice president for human resources so that a record of such complaint can be kept for the purpose of recognizing patterns of harassment.
Supervisors have a special responsibility for monitoring adherence to this policy. Supervisors are expected to model good behavior and to act promptly to correct any harassing behavior and to ensure that there is no reprisal.
Appropriate sanctions will be imposed upon anyone who violates this policy. Sexual harassment may be considered adequate cause for dismissal of a student or termination of employment, including termination of a tenured faculty appointment.
The university will not permit intimidation, threats, coercion or other retaliation against persons who complain or express concerns about sexual harassment. Appropriate sanctions will be imposed on anyone engaged in such activity.
Persons who make false allegations or testimony also will be subject to disciplinary action. Failure to substantiate an allegation of sexual misconduct in the course of a hearing, however, is not sufficient proof that the charges are intentionally false.
The Sexual Complaint Grievance Board
The president will appoint a standing Sexual Complaint Grievance Board (SCGB) to adjudicate formal complaints of sexual harassment or sexual misconduct. The board will be composed of at least four faculty members, four staff members, the chief justice of the Student Senate Hearing Board and three other students appointed by the Student Senate. The president will appoint faculty and staff members to three (3)-year staggered terms and student members to two (2)-year staggered terms. Incumbent board members may be reappointed.
In making the appointments, the president will be guided by considerations of continuity, experience and sensitivity to the concerns of students, faculty and staff. If necessary, the president may make a temporary appointment to the board. To the extent possible, the board will be gender- balanced. No faculty member shall serve simultaneously on the SCGB and on the Faculty Hearing Board on Academic Freedom and Tenure.
The president of the university will designate one of the faculty members as chair of the SCGB and one of the staff members as vice chair.
The university aspires to treat inquiries and complaints about sexual harassment or misconduct with discretion. Although the university gives no assurance of confidentiality to any party or witness who participates in any proceeding under this policy, it is committed to informing only those who need to be involved with a complaint.
If a person wishes to ensure that a discussion about sexual harassment remains confidential and that no action is taken, it is essential that the person making the inquiry not disclose information sufficient to identify the accused. This is necessary because the university may be legally obligated to investigate, even without the inquirer’s consent, once it is informed that harassment may be occurring. The university counselor or campus pastors are able to maintain the client privilege of confidentiality to the extent that the law permits.
Retention and Disposal of Records
All records of complaints will be kept in a separate file from other university records. If the respondent is a faculty or staff member and a violation of university policy is found, a copy of the hearing panel's report will be placed in the respondent’s permanent personnel record. If the respondent is a student, the report will be placed in the respondent's student disciplinary file.
Records of complaints closed by Assisted Resolution will be retained in the Department of Human Resources for a period of six (6) years after the case has been closed. Complaints resolved through Adjudication will be retained for five (5) years after the case has been closed if no violation of university policy has occurred. Records will be retained indefinitely if a violation has occurred.
Description and Definitions of Behavior
Sexual harassment may be verbal, visual or involve physical contact. It can be overt, such as a professor’s suggestion that a person could get a higher grade or a supervisor’s offer to an employee for a higher salary in return for submission to sexual advances. The suggestion or advance need not be direct or explicit—it may be implied by the conduct, circumstances and relationship of the individuals involved. Sexual harassment can also consist of persistent, unwanted attempts to change a professional or educational relationship to a sexual one. It can range from abusive remarks about individual persons to sexual misconduct including serious criminal abuses such as assault.
A person does not have to be the target of sexual harassment to be sexually harassed. The harassment of others can be so offensive, demeaning or disruptive as to constitute a hostile work environment, even though the harassment is not specifically directed at the observer.
Although no exhaustive listing of behaviors that constitute sexual harassment is possible, some examples could include: unwelcome sexual flirtations or advances; repeated sexually oriented kidding, teasing, joking and flirting; verbal abuse of a sexual nature; graphic commentary about an individual's body, sexual prowess or presumed sexual deficiencies; derogatory or demeaning comments directed to one's gender; derogatory or demeaning comments about sexual orientation; leering, whistling, touching, pinching or brushing against another's body; touching of an erogenous zone, offensive, crude language; displaying of pornographic materials on personal computers; and displaying objects or pictures that are sexual in nature. All such conduct can be threatening and coercive and may create a hostile or offensive working environment that is not conducive to teaching, learning and working.
Sexual harassment also may consist of patterns or episodes of speech or other behavior that create a hostile or offensive environment for individuals based on their gender or sexual orientation; it may or may not involve unwanted sexual attention.
The university will determine that a behavior or series of behaviors constitutes sexual harassment when one of the following four criteria exists:
Sexual misconduct is a form of physical sexual harassment that includes a range of behaviors from unwanted touching and fondling to acts of sexual assault or rape. Any genital or oral penetration, however slight, by a part of the respondent’s body or by an object without the consent of the complainant is sufficient to constitute sexual assault, and such acts are subject to criminal charges.
Sexual misconduct is defined as engaging or causing another person to engage in a sexual act through force, threat of force or without the person’s consent. Consent must not be impaired by mental or physical condition, by advanced age or by any drug or intoxicant, regardless of who administered the drug or intoxicant, even if it was self-administered In sexual encounters, each participant has a duty to communicate clearly—in words or in actions—the desired level of intimacy. Consent is not presumed.
The use of valid pedagogical materials will not constitute sexual harassment. The university encourages consultation with professional colleagues to determine if the use of the materials chosen may create a hostile or offensive atmosphere within the classroom. The university does not wish to stifle valid academic expression.
Complainant - Any member of the Wittenberg community who reports or files a sexual harassment or misconduct complaint.
Respondent - A person named as an offender in a harassment complaint.
Facilitator - Facilitates resolution of a complaint under the Formal Assisted Resolution Process.
Investigative Officer - Responsible for obtaining all of the facts of the case and for presenting the Hearing Panel with a written report.
Hearing Panel - Conducts hearings on complaints of sexual harassment or sexual misconduct. The Hearing Panel is composed of members of the SCGB as empanelled by its chair.
Hearing Advisers - Current or former members of the SCGB. The Director of Human Resources assigns a hearing adviser to the complainant and one to the respondent. The advisers can provide information about the grievance board process and offer assistance as to help prepare a complainant or respondent to testify, question, rebut and make closings statements. The advisers do not prepare statements, question witnesses, or provide testimony during the hearing. The advisers are not counselors or legal advisers. They can help guide each party in his or her thought process, ask clarifying questions and offer advice regarding the presentation of information, not to present or advocate the case. Each party is responsible for establishing the validity of a complaint or presenting a defense.
Intake Officers - Help the complainant prepare a written complaint. May also be assigned to facilitate the Assisted Resolution process.
Office of Record - Department of Human Resources.
Days - For purposes of this policy, all days are considered working days.
PART II: COMPLAINT AND REPORTING PROCEDURES
Wittenberg strives to provide an environment that promotes and supports positive, effective resolutions for any kind of complaint or concern. A person wishing to make a complaint about sexual harassment or sexual misconduct has the following options under this policy:
Anyone who believes he or she has been sexually harassed or assaulted may also elect to make a complaint outside the university by initiating civil and/or criminal charges against the offending party or parties. If you request, the university will assist you in reporting an assault and filing a criminal charge. You should be aware that the Ohio criminal and civil justice systems and the Wittenberg process for investigation, adjudication and discipline are separate and distinct ways in which to seek redress. If any party initiates any civil, criminal or agency proceeding, the university reserves the right to initiate, to suspend, to terminate or to continue the internal proceeding.
A. Informal Resolution
Any member of the university community who believes he or she has been subjected to harassment may try to resolve the matter informally. The goal of an informal resolution is to stop any harassment that has occurred or is occurring without pursuing a fact-finding process or seeking sanctions.* This can be done directly or with the assistance of a university official.
*The university reserves the right to investigate circumstances that may involve harassment whether or not the person targeted chooses either to initiate an action or to support or oppose an action begun by the university. Sanctions in accordance with this policy may be imposed when it is determined that the policy has been violated.
If an attempted direct resolution does not bring a satisfactory result, one may initiate a formal complaint.
This option means that the person who believes he or she has been subjected to harassment directly communicates with the person doing the harassing. This can be done through a conversation or by written communication. The communication should include a description of the offensive behavior and a request that such behavior stop.
With the Assistance of the University
Under informal resolution, the role of the university official is to help stop the harassing behavior. At this point, the role of the university official does not include mediation or adjudication. A person seeking help with the direct resolution process may consult with one of the following persons:
These university officials can talk with you about options for handling a direct resolution and also can provide guidance on the procedures for filing a formal complaint. Upon request and at their discretion, such persons may serve as a go-between with you and the offender and may do so without revealing your name.
University officials may not assist with an informal resolution when the complaint falls under the definition of sexual assault. All complaints concerning sexual assault are handled through the formal complaint process. Once a university official recognizes that the complaint cannot be resolved by direct resolution, the official must remove himself or herself from the direct resolution process.
B. Formal Complaint Procedures*
*The timetable set within this policy serves as a guideline. It may be modified in consideration of the academic calendar. Wittenberg is committed to resolving complaints in a timely manner but not at the expense of thoroughness or fairness.
The university believes that for a variety of reasons including privacy, speed of the resolution and a return to normal relations, it may be in the interest of both the complainant and the respondent to resolve the complaint through Assisted Resolution rather than Adjudication. Thus, unless the complainant or respondent specifically requests for resolution through adjudication, the university will attempt to resolve formal complaints through Assisted Resolution. Experience has shown that Assisted Resolution is particularly appropriate in situations where there are different perceptions about whether consent was given or where thoughtless or unintentional behavior has caused distress.
Initiating the Complaint
All formal complaints must be written, signed and filed with the Department of Human Resources, which will be the Office of Record for all sexual conduct complaints. One who wishes to file a formal complaint may do so by contacting any of the following university staff who are trained to serve as intake officers for complaints:
The associate vice president for human resources will forward the written complaint to an appropriate university officer (which may be the intake officer) for Assisted Resolution. When the respondent is a faculty member, the associate vice president for human resources will seek the participation of the provost when presenting the complaint to the respondent.
Resolution of Complaints by Adjudication are initiated under the following conditions:
1. Resolution of Complaints by Assisted Resolution
Under Assisted Resolution, a university officer is appointed as a facilitator to help the complainant and respondent reach a mutually satisfactory resolution. The facilitator does not make a determination about whether the university’s policy has been violated. Generally, the facilitator meets separately with the complainant and respondent. Examples of resolutions include an apology, counseling and education requirements, access restrictions, disciplinary action, other affirmative steps to be initiated or dismissal of the complaint.
2. Resolution of Complaints by Adjudication (SCGB)
Under Resolution by Adjudication, the Chair of the SCGB appoints a Hearing Panel to determine if the respondent has violated the institution's policies concerning sexual harassment or sexual misconduct.
The associate vice president director for human resources will designate two members of the SCGB who are not serving on the Hearing Panel to serve as hearing advisers. One adviser will be assigned to the complainant, and one will be assigned to the respondent. The hearing advisers are available to listen and provide general information about the hearing process. Although the adviser is to be an aid, each party is responsible for establishing the validity of a complaint or presenting a defense.
Furthermore, the complainant and the respondent may each select one person to provide emotional support in any proceeding under this policy and procedure or in the preparation and filing of any complaint. If a support person is selected, the complainant or respondent may ask the respective support person to accompany them in any fact-finding or appeals hearing; however, the support person will not be permitted to speak or participate in the proceedings. The complainant and respondent must notify the chair of the identity of the support person at least 48 hours in advance of the hearing, absent good cause to the contrary. If the chair determines that the selected support person will or may potentially cause a conflict of interest, the chair may require that another support person be chosen. For example, the presence of witnesses, girlfriends, boyfriends, or parents present an inherent conflict and will not normally be permitted to attend the hearing.
The major steps in the Adjudication Process include:
The associate vice president for human resources will designate an investigative officer(s) who will be responsible for obtaining all of the facts of the case. This may include gathering documents and conducting interviews with all individuals reasonably believed to have relevant information, including the complainant, the respondent, witnesses and individuals who are alleged to have been the victims of similar conduct. The investigative officer will be designated according to the classification of the respondent:
In cases of sexual misconduct, the chief of police or the director's designee will be assigned to co-investigate.
Within seven (7) days of receiving the complaint, the investigator(s) will consult with the complainant and with the respondent in order to ascertain the facts and views of both parties. The investigator will report his or her findings in writing to the chair of the Hearing Panel. The investigative findings will be given to the complainant and respondent.
All individuals are expected to cooperate in the investigation and are expected to abide by the university's code of conduct, including honesty. Individuals who obstruct the investigation process or who are dishonest and hinder the institution's ability to conduct a prompt and thorough investigation of allegations will be subject to discipline.
2. Hearing Panel
Cases will be heard by an impartial hearing panel. Any person who has a significant conflict of interest regarding the case may not serve on the hearing panel for that case. A party who believes that a member of a hearing panel may not be impartial may bring that concern to the attention of the chair of the hearing panel, who will determine if a member should be excused. The chair of the SCGB will preside over meetings and hearings of the board, and the vice chair will discharge those responsibilities if the chair is unavailable. If both the chair and vice chair are unable to sit as chair, the president will designate another member of the board as chair pro tem.
The chair of the SCGB will appoint a hearing panel within five (5) days of receiving a complaint. A hearing panel consists of at least one faculty member, one staff member, and, in cases where the complainant or the respondent is a student, one student member. The chair of the SCGB may choose to impanel additional members of the board.
3. Hearing Procedures
The associate vice president for human resource will refer all complaints requiring resolution by Adjudication to the chair of the SCGB and to the designated investigator. The associate vice president for human resources will also give a copy of the complaint to the respondent.
The hearing panel will hold a formal hearing and receive testimony from the designated investigator, the complainant, the respondent and other witnesses, as the panel deems necessary. The chair of the hearing panel will exercise discretion in determining which witnesses are necessary to the hearing process.
Although the hearing procedures are to respect fundamental standards of fairness, they are not intended to be equivalent to those employed in a civil or criminal judicial process. They are set with an aim of providing the hearing board with the best opportunity for determining the truth of the matter’s dispute. Minor deviations from these prescribed procedures will not render a decision invalid or constitute grounds for an appeal unless a matter of fundamental fairness has been violated.
4. Determination and Sanctions*
*The panel does not have authority to determine or recommend sanctions in complaints against faculty or staff.
The hearing panel may choose to reconvene as often as it deems necessary to hear additional information. Within five (5) days after the conclusion of its hearings, the panel will prepare a written report. The report will include a summary of the evidence before the panel, the testimony heard and state its findings of fact and its conclusion as to whether the university's policy has been violated.
The hearing panel will rely on the preponderance of evidence standard when making its determination. This means the determination will rest on whether the evidence indicates it is more likely than not that sexual harassment or misconduct occurred in violation of the institution's policy.
For Complaints Against Students
The panel will use the disciplinary guide as stated in the university Student Handbook to determine a sanction. The panel will consult with the vice president for student development to find out if the respondent has prior violations.
The chair of the hearing panel will give a written report of the decision and the sanction to the complainant and respondent. Simultaneously, the chair will forward the report and the sanction, if any, to the associate vice president for human resources and student development. If the chair of the hearing panel is unable to deliver the decision to the complainant and respondent in person, the chair may mail the decision by ordinary United States Mail. The chair will use the local addresses of the respective parties, and the decision will be deemed delivered upon mailing.
For Complaints Against Faculty or Staff
The hearing panel will file the report with the associate vice president for human resources. The associate vice president for human resources will forward the report to the provost if the respondent is a member of the faculty and to the president if the respondent is a member of the President’s Cabinet; otherwise, associate vice president for human resources will forward the report to the vice president for business and finance.
If the panel has concluded that a violation of university policy has occurred, the provost or the vice president for business and finance, as the case may be, will consult with the hearing panel and thereafter will impose a sanction. If the respondent is a tenured faculty member, the provost shall observe the procedures set forth in the Bylaws of the Board of Directors. If the respondent is a faculty member, the provost will impose the sanction. If the respondent is a member of the President's Cabinet, the president will impose the sanction. Otherwise, the vice president for business and finance will impose the sanction.
The senior administrative officer who received the panel's report will inform the complainant and respondent in writing of the decision and the sanction, if any, and will simultaneously send the report to the associate vice president for human resources. If the university officer is unable to deliver the decision to the complainant and respondent in person, the report may be sent by ordinary United States Mail. The officer will use the home addresses of the respective parties, and the decision will be deemed delivered upon mailing.
5. Right to Appeal
An appeal of a disciplinary decision by the complainant or the respondent must be made in writing to the associate vice president for human resources within seven (7) days after receipt of the decision. The right to appeal does not entitle the complainant or respondent to a full rehearing of the entire case. If the senior administrator reviewing the appeal determines that there is new and significant evidence or that the rights to a fair and impartial hearing were violated, the administrator will either reconvene the hearing panel or appoint a new panel to hear the case. If there is clear reason to believe the sanction is not consistent with the seriousness of the action, the senior administrator will revise the sanction in consultation with the hearing panel. The appeal process does not allow a senior administrator to change the decision of the hearing panel independently. The administrator will issue a written decision on the appeal and provide that decision to the respondent, the complainant and associate vice-president for human resources within ten (10) days after the appeal is filed.
At least one of the following three conditions must exist for an appeal to be considered:
For Complaints Against Students
The associate vice president director for human resources will send the appeal to the associate vice president for student development for review.
For Complaints Against Faculty or Staff
The direct associate vice president for human resources will send the appeal to the president of the university for review. If the president of the university has imposed the sanction, a request for reconsideration may be filed with the president. Furthermore, a faculty member may choose to invoke the procedures set forth in the Bylaws of the Board of Directors with respect to the imposition of discipline on faculty.
Any appeal challenging the procedures applied in the formal resolution of a complaint may be directed to the president of the university, or, if a faculty member lodges the appeal, the appeal may be processed under the Faculty Grievance Policy.
PART III: USE OF LEGAL COUNSEL
The University proceedings are not a court of law, and licensed attorneys are not permitted to be present in any fact-finding or appeals hearings.
Nevertheless, any person involved in any proceeding under this policy and procedure may be assisted by legal counsel chosen by that person. Any expense associated with retaining legal counsel in internal proceedings under this policy and procedure will be the responsibility of the person engaging such counsel. The board of directors of the university has determined that the university will not pay the expense of legal counsel in internal proceedings.
Under the university's indemnification policy, adopted by its board of directors, the university may provide coverage under various indemnification and/or insurance policies for external proceedings, and the board of directors decides such cases on an individual basis.
PART IV: SUPPORT SERVICES
For Faculty and Staff
PART V: COMMUNITY NOTIFICATION
At least annually, the Office of Record shall submit a report to the president that includes the number of individuals who filed a complaint, the number of cases that were resolved through adjudication, the kinds of behavior that gave rise to complaints and the determinations of the hearing panel. The report shall not mention the name of any individual or identifying details of any case.
The president shall make the report public.
PART VI: REVIEW OF PROCEDURES
The president has appointed an advisory council which includes the associate vice president of student development/dean of students, associate vice president for human resources and chair of the SCGB to annually evaluate these procedures. The advisory council will consult with the full SCGB and thereafter forward its recommendations to the president. After review by the president, the changes will be brought to a faculty meeting and to Student Senate before presentation to the board of directors for consideration for adoption.
All members of the Wittenberg community are encouraged to raise questions about this policy with one of the committee members, and to offer suggestions for policy revision.
PART VII: EFFECTIVE DATE OF POLICY
This policy will be effective for all matters processed on and after the date that this revised policy is approved by the board of directors.
Adopted by the Board of Directors—Oct. 1994
Revised by the Board of Directors—June 5, 1995
Revised by the Board of Directors—May 3, 1996
Revised by the Board of Directors—May 3, 1997
Revised by the Board of Directors—May 8, 1999
Revised by the Board of Directors--May, 2000
Non-Material Revisions - August, 2001
In accordance with Title 31, United States Codes, Section 1352, entitled “Limitation of Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions,” Wittenberg University will follow the following policies:
No federal appropriated funds will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding, extension, continuation, renewal or modification of any Federal contract, grant, loan or cooperative agreement.
Standard Form--LLL, “Disclosure of Lobbying Activities,” will be completed and submitted in accordance with instructions if any funds other than Federally appropriated funds have been paid or will be paid for lobbying.
These above policies will be included in a sub-awards at all tiers and will followed by all recipients.