Staff and Faculty Title IX Sexual Harassment Policy and Procedures

Board Approved - October 2022

I. Introduction

Sexual Harassment, as defined by this Policy, is prohibited by the College. [1] The College will respond promptly and effectively to reports of Sexual Harassment. Other forms of sexual discrimination, sexual harassment, and sexual exploitation that do not meet the definition of Sexual Harassment under this Staff and Faculty Title IX Sexual Harassment Policy (“Staff and Faculty Title IX Policy”), remain prohibited by the College’s other applicable policies, including the College’s Discrimination and Harassment Policies and Grievance Procedures.

This Policy addresses the College’s responsibilities and procedures related to Sexual Harassment allegations against members of its staff and faculty, to ensure an equitable and inclusive education and employment environment. The Policy defines Sexual Harassment and Retaliation, and explains the administrative procedures the College uses to resolve reports of such conduct. Allegations against the College’s students are handled under different processes set forth in the TCC Title IX Policy, the College’s Sexual Misconduct, Sexual Harassment, and Gender Discrimination Policy and Procedures, the Discrimination and Harassment Policies and Grievance Procedures, the Student Code, or other applicable College policies.

This Policy does not alter any institutional obligations under federal disability laws, including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties and witnesses may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator or Human Resources professional at any point before or during the Title IX Grievance Process. The Title IX Coordinator and/or Human Resources professional will submit any request for reasonable accommodation to the appropriate department for review and response. The Title IX Coordinator and/or Human Resources professional will not affirmatively provide disability accommodations that have not been specifically requested by an individual, even where the individual may be receiving accommodations in other College programs and activities.

This Policy outlines the Formal Grievance Procedures the College will follow to ensure a prompt and equitable resolution of complaints against employees alleging Sexual Harassment. The College is not precluded from investigating other conduct that, if proven, would not constitute Sexual Harassment under this Policy but may constitute a violation of other College policies.

Title IX Coordinator. The College has designated a Title IX Coordinator to oversee and ensure compliance with this Policy:

Erica Taylor
Associate Dean
Title IX Coordinator l Clery Officer
550 N. College Ave.
Claremont, CA 91711
Erica.Taylor@pomona.edu
Phone: 909.621.8017
Fax: 909.607.7228

Reporting Misconduct. Any person may report sex discrimination, including Sexual Harassment. The reporting party need not be the purported victim of the Sexual Harassment and/or Sex Discrimination.

Anyone wishing to report Sex Discrimination may do so utilizing the contact information of the Title IX Coordinator. These reports shall be accepted when received in-person, via mail, electronic mail, telephone, and/or by any other means clearly defined by the College. Individuals can report potential Sex Discrimination and/or Sexual Harassment verbally or in writing.

Disclosing Sexual Harassment to a Confidential Resource. Under certain circumstances, an individual may disclose Sexual Harassment without initiating the formal Title IX Grievance Process. If an individual discloses Sexual Harassment to a Confidential Resource (defined below), the disclosure will be kept confidential if requested by the disclosing individual. The College’s Title IX Coordinator maintains a list of all Confidential Resources available to students, staff, and faculty.

Accordingly, if an individual wishes to discuss potential Sexual Harassment without initiating the formal Title IX Grievance Process, they may disclose the conduct to a Confidential Resource.

In contrast, if an individual communicates with a Responsible Employee (defined below) and/or the Title IX Coordinator regarding potential Sexual Harassment, that communication is considered a report of Sexual Harassment.

Upon receipt of a report of Sexual Harassment, the College is required to respond. This response may include the initiation of the formal Title IX Grievance Process. Reports of Sexual Harassment do not automatically initiate the formal Title IX Grievance Process. The formal Title IX Grievance Process is only initiated upon receipt of a signed complaint.

Publication. This Policy shall be distributed and made available to all members of the College community. In addition, every handbook and/or catalog made available to members of the College’s community shall contain a link to this policy and the Title IX Coordinator’s contact information.

II. Relevant Terms

Advisor: An Advisor is one individual who provides guidance to the student throughout the complaint process, as set forth in this Policy. Parties are entitled to an Advisor through every stage of the complaint process, including the Alternative Resolution process. A party can select an Advisor of their choice at any time in the process. An Advisor can be any person, including an attorney, who is not otherwise a party or a witness.

A party does not have to have an Advisor during the investigation process. The College will not provide any party with an Advisor during the investigation process. However, as outlined below, each party is required to have an advisor during the hearing. If a party has not already obtained an Advisor prior to the start of the hearing, the College’s Title IX Coordinator will be responsible for ensuring each party is appointed an Advisor at no fee or charge to the party. The College will not pay for, nor will the College reimburse any party for the cost of, an Advisor selected by the party.

The Advisor is responsible for questioning witnesses and other parties during the hearing. Other than this responsibility, the Advisor’s role is limited. See Section IX.C.7 for a full overview of the Advisor’s role. Outside the role of questioning during a hearing, an Advisor may never speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner. The College reserves the right to exclude an Advisor who does not abide by these procedures.

Support Person: A Support Person is one individual who provides emotional support to a party throughout the complaint process, as set forth in this Policy. Parties are entitled to a Support Person through every stage of the complaint process, including the Alternative Resolution process.

The Support Person may never speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner. See Section IX.C.8 for a full description of the Support Person’s role. The College reserves the right to exclude a Support Person who does not abide by these procedures.

Complainant: An individual alleged to be the victim of conduct that could constitute Sexual Harassment. For purposes of this Policy, a Complainant must be participating in, or attempting to participate in, an education program or activity of the College. An individual who is on leave from their employment or student status is considered to be a person attempting to participate in an education program or activity for purposes of this Policy.

Confidential Resource: A Confidential Resource is an employee within the College who is not required to report disclosures of Sexual Harassment. Confidential Resources do not report potential crimes to law enforcement, nor do they report potential violations of policy to College officials without permission from the disclosing individual. The only exception to this applies in circumstances involving a health and/or safety emergency, and/or child abuse. – In those limited circumstances, a Confidential Resource may be required to report the disclosure. The College’s Title IX Coordinator maintains a list of Confidential Resources.

Consent: Consent is affirmative, clear, knowing, voluntary, conscious, and revocable permission. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in sexual activity, and the physical conditions of sexual activity (i.e., use of a condom).[2]

Affirmative consent must be ongoing and can be revoked at any time during sexual activity. It is the responsibility of each person to ensure they have the affirmative consent of the other to engage in the sexual activity. The existence of a dating relationship between the persons involved, or the fact of past or subsequent sexual relations between them, should never by itself be presumed to be an indicator of consent.

  1. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
  2. Consent can be withdrawn at any time.
  3. Previous relationships or prior consent cannot imply consent to future sexual acts; this includes “blanket” consent (i.e., permission in advance for any/all actions at a later time/place).
  4. It is the obligation of the person initiating the sexual activity to obtain consent.
  5. An individual cannot consent who has been coerced, including being compelled by force, threat of force, or deception; who is unaware that the act is being committed; or, who is coerced by a supervisory or disciplinary authority.
    1. Force: violence, compulsion, or constraint physically exerted by any means upon or against a person.
    2. Coercion: the application of pressure by the Respondent that unreasonably interferes with the Complainant’s ability to exercise free will. Factors to be considered include, but are not limited to, the intensity and duration of the conduct.
  6. A person who does not want to engage in sexual activity is not required to resist or to verbally object.
  7. Withdrawal of consent can be manifested through conduct and need not be a verbal withdrawal of consent (i.e., crying, pulling away, not actively participating, uncomfortable or upset facial expressions).
  8. Consent may not be given by an individual who has not reached the legal age of consent under applicable law.

Affirmative consent cannot be given by a person who asleep, unconscious, or incapacitated. A person with a medical or mental disability may also lack the capacity to give consent. The definition of incapacitation follows.

Incapacitation. A person is unable to consent when incapacitated due to the influence of drugs, alcohol, or medication so that the person could not understand the fact, nature, or extent of the sexual activity.

Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) or is physically unable to consent (e.g., asleep or unconscious).

Incapacitation may result from the use of alcohol or drugs. However, consumption of alcohol or other drugs alone is insufficient to establish incapacitation. Whether an intoxicated person (as a result of using alcohol or other drugs) is incapacitated depends on the extent to which the alcohol or other drugs impact the person's decision-making ability, awareness of consequences, and ability to make informed judgments. A person's own intoxication or incapacitation from drugs or alcohol does not diminish that person's responsibility to obtain Affirmative Consent before engaging in sexual activity.

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Being intoxicated or impaired by drugs or alcohol is never an excuse for Sexual Harassment, sexual violence, stalking, or intimate partner violence, and does not diminish one’s responsibility to obtain consent.

The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol or drugs impacts an individual’s:

  • Decision-making ability;
  • Awareness of consequences;
  • Ability to make informed judgments; or,
  • Capacity to appreciate the nature and the quality of the act.

It shall not be a valid excuse that a person affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the person was unable to consent to the sexual activity under any of the following circumstances:

  • The person was asleep or unconscious;
  • The person was incapacitated due to the influence of drugs, alcohol or medication, so that the person could not understand the fact, nature or extent of the sexual activity;
  • The person was unable to communicate due to a mental or physical condition.

It shall not be a valid excuse that the Respondent believed that the person consented to the sexual activity under either of the following circumstances:

  • The Respondent's belief in Affirmative Consent arose from the intoxication or recklessness of the Respondent;
  • The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the person affirmatively consented.

Education Program or Activity: Alleged Sexual Harassment is only covered under this Policy if the alleged conduct occurred within the College’s “education program or activity.” For purposes of this Policy, “education program or activity” means locations, events, or circumstances over which the College exercised substantial control over both the Respondent staff member or faculty member and the context in which the alleged Sexual Harassment occurred. Conduct occurring on the property of any Claremont College may constitute conduct occurring within the College’s education program or activity, regardless of the institutional affiliation of the Complainant(s) or Respondent(s).

If the alleged conduct occurs off-campus, and does not occur within the College’s education program or activity, the conduct cannot be investigated and addressed under this Policy. If a complaint is accepted under this Policy, and over the course of the investigation or hearing, it is determined that the alleged conduct did not occur within the College’s education program or activity, the complaint process under this Policy will be terminated.

Under some limited circumstances, off-campus conduct may be covered under this Policy. For off-campus conduct to be covered under this Policy, one of the three following conditions must be met:

  • The incident occurred as part of the College’s “operations”;
  • the College exercised substantial control over the Respondent and the context of the alleged Sexual Harassment; or,
  • The incident occurred at an off-campus building owned or controlled by an officially recognized the College student organization.

Conduct that does not occur within the College’s education program or activity, as defined by this Policy, may still be addressed through the College’s other policies and processes.

Conduct that occurs outside of the United States, including conduct taking place within a College-sanctioned study abroad program, cannot be investigated under this Policy. However, conduct occurring outside of the United States may still be addressed through the College’s other policies and processes

Formal Complaint: A document filed and signed by a Complainant or a document signed by the Title IX Coordinator, alleging Sexual Harassment against a Respondent and requesting an investigation into the allegation. Any individual may make a complaint of Sexual Harassment. This individual is known as a Reporting Party. If the Reporting Party is not the Complainant, the Title IX Coordinator may sign the complaint. If the formal complaint is signed by the Title IX Coordinator, the Title IX Coordinator is not treated as a Complainant, nor is the Title IX Coordinator treated as a party to the complaint. At the time of filing the formal complaint, the Complainant must be participating in, or attempting to participate in, an education program or activity of the College.

“A document filed and signed by a Complainant” means a document or electronic submission (such as by electronic mail or through an online reporting system) that contains the Complainant’s physical or digital signature, or otherwise indicates who is the person filing the complaint. These reports shall be accepted when received in-person, via mail, electronic mail, telephone, and/or by any other means clearly defined by the College. Individuals can report potential Sex Discrimination and/or Sexual Harassment orally or in writing.

Reporting Party: An individual who makes a report of alleged/potential Sexual Harassment. This can be any person, including an individual unassociated with the College. A Reporting Party is not considered a Complainant for purposes of this process.

Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment. An individual does not have to be enrolled or employed by the College to qualify as a Respondent under this Policy. The College may dismiss a formal complaint if the Respondent is no longer enrolled or employed by the College; however, the decision to dismiss will be made on an individual basis, by the College’s Title IX Coordinator.

Responsible Employee: Responsible Employees are the College employees who cannot guarantee confidentiality upon learning of potential Sexual Harassment. These individuals are required to report the alleged conduct to the College’s Title IX Coordinator, which may initiate the formal Title IX Grievance Process.

Responsible Employees will maintain confidentiality to the greatest extent possible and will relay the information disclosed only as necessary to the Title IX Coordinator or designee. The College will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be granted.

Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the Complainant and/or the Respondent. The range of supportive measures available is listed in Section V of this Policy.

III. Sexual Harassment

Only allegations of Sexual Harassment, alleged to have occurred within the College’s education program or activity, are addressed under this Policy. Sexual Harassment, as defined by this Policy, is prohibited within all of the College. The College will respond promptly and effectively to reports of Sexual Harassment, as outlined in this policy. Other forms of sex discrimination, sexual harassment, and sexual exploitation remain prohibited by other College policies. [3]

This section provides the definition of Sexual Harassment, for purposes of this Policy.

Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

  1. An employee conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct (also known as quid pro quo Sexual Harassment).
    • Note: Complainant’s statement that they found the conduct to be unwelcome is sufficient to constitute “unwelcome conduct.”
  2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity.
    • Note: “Unwelcome conduct” depends on a variety of factors and must be evaluated in light of the known circumstances.
    • Note: “Severe, pervasive, and objective” must be evaluated in light of the known circumstances, and is dependent on the facts in each situation. However, this element must be determined from the perspective of a reasonable person standing in the shoes of the Complainant.
  3. Sexual assault (as defined in the Clery Act), or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
    • Note: A single instance of any conduct as defined below is sufficient to constitute Sexual Harassment. Any instance of any of the conduct defined below does not need to demonstrate severity, pervasiveness, objective offensiveness, or denial of equal access to education or employment, because denial of equal access is assumed.

Sexual Assault. As defined in the Clery Act (20 USC 1092(f)(6)(A)(v), Sexual Assault is: an offense that meets the definition of rape, fondling, incest, or statutory rape, as used in the FBI’s Uniform Crime Reporting (UCR) Program. The relevant FBI UCR definitions are as follows:

Rape. The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant.

Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of age or permanent mental incapacity.

Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape. Sexual intercourse with a person who is under the statutory age of consent. In California, the statutory age of consent is 18.

Dating Violence. As defined in VAWA (34 USC 12291(a)(10), Dating Violence is: violence committed by a person:

  • Who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and,
  • Where the existence of such a relationship shall be determined based on a consideration of the following factors:
    • The length of the relationship;
    • The type of relationship; and,
    • The frequency of interactions between the persons involved in the relationship.

Domestic Violence. As defined in VAWA (34 USC 12291(a)(8), Domestic Violence is: acts that include felony or misdemeanor crimes of violence committed by one of the following:

  • a current or former spouse or intimate partner of the Complainant;
  • a person with whom the Complainant shares a child in common;
  • a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner;
  • A person similarly situated to a spouse of the Complainant under the domestic or family violence laws of California; or,
  • Any other person whose acts an adult or youth Complainant is protected from under the domestic or family violence laws of the state of California.

Stalking. As defined in VAWA 34 USC 12291(a)(30), Stalking is: engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  • Fear for their safety or the safety of others; or,
  • Suffer substantial emotional distress.

IV. Behavior That Does Not Constitute “Sexual Harassment” Under This Policy

Behavior which does not fall under this Policy’s definition of Sexual Harassment may be addressed through other policies and processes, such as those under the College’s Discrimination and Harassment Policies and Grievance Procedures or applicable College policies.

Any conduct that constitutes Sexual Harassment, as defined by this Policy, is addressed using the process established in this Policy. Other conduct, as defined under the College’s other policies, is addressed using the processes established in or otherwise applicable to those individual policies.

V. Supportive Measures

Supportive measures are designed to restore or preserve equal access to a Complainant’s and Respondent’s educational program or activity without unreasonably burdening the other party.

The College’s Title IX Coordinator shall, upon becoming aware of alleged Sexual Harassment, promptly contact the Complainant if their identity is known to discuss the availability of supportive measures as well as other rights and options in accordance with [campus] policies. Supportive measures shall be offered to the Complainant regardless of whether they wish to file a formal complaint. In implementing any supportive measures, the Title IX Coordinator shall consider the Complainant’s wishes.

The College’s Title IX Coordinator shall offer supportive measures to a Respondent upon notification to the Respondent that there has been a formal complaint, or earlier as appropriate if a Respondent is aware of a potential complaint against them.

Supportive measures, provided to a Complainant or Respondent, shall remain confidential to the extent that maintaining such confidentiality will not impair the College’s ability to provide the supportive measures. This information will not be shared with the other party unless it specifically impacts that party.

Supportive measures may include, but are not limited to, the following:

  • Modifications of work or class schedules, in coordination with the relevant Faculty member and/or supervisor;
  • Campus escort services;
  • Mutual restrictions on contact between the parties;
  • Changes in work or housing locations;
  • Leaves of absence;
  • Increased security and monitoring of certain areas of campus; and,
  • Other similar measures determined by the Title IX Coordinator based on the specific facts of each case.

VI. Administrative Leave

The College reserves the right to place an employee Respondent on administrative leave during the pendency of the formal grievance process.

An employee can be placed on administrative leave only after a formal complaint has been filed against a Respondent and the grievance process has begun. Administrative leave is intended for non-emergency situations.

The College’s Chief Human Resources Officer will work in coordination with the College’s Title IX Coordinator to facilitate the administrative leave process.

Nothing in this Policy alters an employee’s at will employment status. Other interim steps, such as separating the Complainant and Respondent or modifying work schedules, may also be employed while the investigation is in progress. The College will also take steps to prevent recurrence of any discrimination or harassing conduct and will also take steps to correct any discriminatory effects on the Complainant(s) or other students, faculty, staff, or contractors, if appropriate.

VII. Alternative Resolution Process

The College recognizes some parties may desire resolution of their matter through an Alternative Resolution Process, instead of through the Formal Grievance Process. Accordingly, parties can mutually agree to resolve a complaint through an Alternative Resolution process, instead of undergoing the Formal Grievance Process. Generally speaking, these resolution options are less time intensive than an investigation and live hearing, while still affording parties an opportunity to actively participate in a process led by the College for resolution of their complaints.

Alternative Resolution is not available in situations involving a student Complainant and an employee Respondent(s). Any allegation of Sexual Harassment made by a student against an employee must proceed under the Formal Grievance Process. Alternative Resolution is available when there is a student Respondent.

The parties may elect to enter the College’s Alternative Resolution process through an informed written consent, at any time after the filing of the Formal Complaint. This informed written consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the parties.

No party may be required to participate in Alternative Resolution, and it may never be a condition of enrollment, employment, or enjoyment of any other right or privilege. Participation in Alternative Resolution is voluntary, meaning both the Complainant and the Respondent must agree to participate. If Alternative Resolution is selected, the Title IX Coordinator will provide timely written notice to both parties that includes:

  • the allegations;
  • the Title IX Coordinator has begun the process;
  • the process is voluntary and will end upon either party’s request;
  • termination may result in initiation of the Formal Grievance Process;
  • each party may be accompanied throughout the process by an Advisor (who may be an attorney);
  • the Title IX Coordinator will notify both parties of the process’s outcome; and
  • the process is private but not confidential, the Title IX Coordinator will maintain a record of the process and may share information with others if needed to carry out the resolution, and information shared by parties may be considered in any subsequent Resolution Process.

The parties may elect to leave the Alternative Resolution process at any point until the Alternative Resolution process is concluded. The process is considered concluded when all parties have signed the agreement. If a party elects to leave the Alternative Resolution process, the formal grievance process recommences. In participating in the Alternative Resolution process, the parties understand that the timeframes governing the formal process temporarily cease, and only recommence upon reentry into the formal process.


Determination to Approve Entry into Alternative Resolution Process

Even where the Parties agree to submit a matter to Alternative Resolution, the College’s Title IX Coordinator or Chief Human Resources Officer must approve the decision to move the matter to the Alternative Resolution process and may determine that Alternative Resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator or Chief Human Resources Officer may weigh in considering the appropriateness of the Alternative Resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the respondent is a repeat offender, and whether the parties are participating in good faith. This determination is not subject to appeal.

Alternative Resolution is only permitted to address allegations of staff-on-staff or student-on-staff sexual harassment, and is never allowed as an option to resolve allegations that an employee sexually harassed a student. See, 85 Fed. Reg. 30026, 30054 (May 19, 2020).

At any time after the commencement of the Alternative Resolution process, the College’s Title IX Coordinator or Chief Human Resources Officer may determine that the Alternative Resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the formal process. This determination is not subject to appeal.

Role of the Facilitator

Alternative Resolution Processes are managed by facilitators, who may not have a conflict of interest or bias in favor of or against complainants or respondents generally or regarding the specific parties in the matter. A Title IX Coordinator may serve as the facilitator.

All facilitators must have training in the definition of Sexual Harassment under this Policy, the scope of the institution’s education program or activity, how to conduct an Alternative Resolution process, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias.

Confidentiality

In entering the Alternative Resolution process, the parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the Alternative Resolution process concerning the allegations of the Formal Complaint is confidential while the parties are participating in the Alternative Resolution process. No evidence concerning the allegations obtained within the Alternative Resolution process may be disseminated to any person, provided that any party to the Alternative Resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization. Should the parties withdraw from the Alternative Resolution process, information disclosed or obtained for purposes of the Alternative Resolution process may be incorporated into the formal investigation and live hearing, provided that this information is disclosed and reviewed by the parties under the investigatory and hearing procedures described in the Title IX Grievance Process.

Alterative Resolution Options

The College offers the following Alternative Resolution procedures for addressing Formal Complaints of Sexual Harassment covered under this Policy:

  • Administrative Resolution. Should the Parties mutually determine to enter the Alternative Resolution process, and the Respondent elects to accept responsibility for the allegations of the Formal Complaint at any point during the Alternative Resolution process, the College may administratively resolve the Formal Complaint.

Where the Respondent admits responsibility, the Parties will receive simultaneous written notification of the acceptance of responsibility, and the Respondent’s Home Institution’s applicable decision-makers will convene to determine the Respondent’s sanction and other remedies, as appropriate and consistent with institutional policy. The Parties will be given an opportunity to be heard at the sanctions hearing, including but not limited to the submission of impact statements, and the Parties may be accompanied by their Advisor, but questioning of Parties or witnesses will not be permitted. The Parties will receive simultaneous written notification of the decision regarding sanctions and remedies, which may be appealed according to the process described below, in Section IX.E.

The College’s Title IX Coordinator or Chief Human Resources Officer will keep records of all reports and conduct addressed through Alternative Resolution.

  • Mediation. The purpose of mediation is for the parties who are in conflict to identify the implications of a student’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate remedies to address them. Either party can request mediation to seek resolution; mediation will be used only with the consent of both parties, who will be asked not to contact one another during the process. The College’s Title IX Coordinator or Chief Human Resources Officer will also review any request for mediation, and may decline to mediate based on the facts and circumstances of the particular case. Either party has the right to terminate the mediation process and choose or resume another option for resolution at any time.

The mediation process will typically commence within 30 business days after the initial report is received and both parties have consented to mediation, and will continue until concluded or terminated by either party or the College’s Title IX Coordinator or Chief Human Resources Officer. During mediation, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the College’s Title IX Coordinator or Chief Human Resources Officer to re-evaluate other options for resolution, including investigation.

During mediation, a facilitator will guide a discussion between the parties. In circumstances where the parties do not wish to meet face to face, either party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the parties agree to meet face to face, each party will be permitted to bring an advisor of their choice to any meetings who may be, but is not required to be, an attorney.

At the conclusion of the mediation, the facilitator will memorialize the agreement that was reached between the parties. The College’s Title IX Coordinator or Chief Human Resources Officer will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.

The College’s Title IX Coordinator or Chief Human Resources Officer will keep records of all reports and conduct addressed through Alternative Resolution.

  • Restorative Justice. A restorative justice (“RJ”) Conference is a dialogue, facilitated by an employee or contractor with appropriate training, intended to restore relationships and repair harm after a conflict has occurred. Both the responsible party and the individuals affected by the conflict come together to identify what harm was caused and, collaboratively, determine how conflict and trust might be, respectively, resolved and repaired.

A party may request to engage in RJ at any stage of the disciplinary process, however, restorative justice may not be an appropriate mechanism for all conflicts. To qualify for RJ, the student accused of wrongdoing must accept responsibility and express remorse for the harm that was caused. The harmed party must also be willing to accept an apology offered by the student accused of wrongdoing. Additionally, all involved parties must agree to and abide by measurable and timely actions within the scope of this Policy and directives. The College’s Title IX Coordinator or Chief Human Resources Officer will review any request for RJ, and may decline to initiate RJ based on the facts and circumstances of the particular case.

The RJ Conference proceeds only if all parties agree to participate willingly. The RJ process typically commences within 30 business days after the initial report and receipt of written agreements from all involved parties. The conference will continue until the conference is successfully concluded or until the College’s Title IX Coordinator or Chief Human Resources Officer determines that the conference will not be successful. If successful, an agreeable resolution is reached by all involved parties, at which time the process is concluded, and the matter is resolved. If a resolution cannot be reached, the matter will be referred to the Home Institution Title IX Coordinator or Chief Human Resources Officer to re-evaluate other options for resolution.

The College’s Title IX Coordinator or Chief Human Resources Officer will monitor the parties’ adherence to their proposed solution and reserves the right to close the matter when compliance is satisfactory.

The College’s Title IX Coordinator or Chief Human Resources Officer will keep records of all reports and conduct addressed through Alternative Resolution.

VIII. Formal Grievance Process

The Formal Grievance Process is initiated when a Complainant or Reporting Party makes a report of alleged Sexual Harassment to the College’s Title IX Office. Throughout the Formal Grievance Process, the College’s Chief Human Resources Officer and the College’s Title IX Coordinator will work closely and cooperatively together. Where appropriate, they will maintain open communication during all phases of the Formal Grievance Process, including the investigation, hearing, and appeals stage.

The College does not make determinations of responsibility prior to the completion of the Formal Grievance Process. All evidence gathered will be objectively evaluated. This includes both inculpatory and exculpatory evidence. Credibility determinations will not be made based solely on a person’s status as a Complainant, Respondent, or witness. Respondents are presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

The burden of proof and the burden of gathering sufficient evidence to reach a determination regarding responsibility rests on the College, and not on the parties.

A. General Information

The Formal Grievance Process is initiated upon receipt of a signed complaint, alleging Sexual Harassment – known as a Formal Complaint. A Formal Complaint can be signed and filed by a Complainant with the College’s Title IX Coordinator. A Title IX Coordinator can also sign and file a Formal Complaint when they receive a complaint of Sexual Harassment from a Reporting Party (who is an individual other than the Complainant). A Title IX Coordinator who signs and files a complaint is not treated as a Complainant.

Intake Process. Upon receipt of such a Formal Complaint, the College’s Title IX Coordinator or its designee will engage in the Intake Process, in which they meet with the Complainant, gather preliminary information about the allegation(s), and write the information gathered in an Intake Report. The Intake Process might take place during the Title IX Coordinator’s initial meeting with the Complainant, or it might take place during a subsequent meeting. The Intake Process commences when a Complainant has decided to make a Formal Report, and/or when the College has been provided sufficient information to proceed with a complaint signed by the Title IX Coordinator.

The Intake Process is not intended to serve as an exhaustive interview, but rather to provide the College with sufficient contextual information to determine the appropriate next steps to support the Complainant and to guide the College’s Response.

Following receipt of the Formal Complaint and Intake Report, the College’s Title IX Coordinator will review and evaluate the allegations. Based on this information, the College’s Title IX Coordinator will determine if the complaint will proceed under this Policy, meaning the conduct would be considered Sexual Harassment if the allegation(s) is sustained. If the College’s Title IX Coordinator determines the complaint is not covered by this Policy, they will notify the Complainant or Reporting Party as appropriate. In instances where it is determined a Formal Complaint will not proceed under this Title IX Policy, this decision is appealable by any party under the procedures for appeal outlined in Section IX.E., below.

If the College’s Title IX Coordinator determines the Formal Complaint will proceed under this Title IX Policy, it will initiate the Formal Grievance Process.[4] A written complaint is not required for an allegation to constitute a report of misconduct. The College’s Title IX Coordinator will determine whether an investigation is warranted based on a preliminary inquiry into the allegations set forth in the Formal Complaint.

In instances where a Formal Complaint is signed by the Title IX Coordinator, the person alleged to be harmed (the Complainant) will still retain all rights of a Complainant in this process, if they should choose to exercise them, including participating at any step of the process and notification of the outcome.

  1. Standard of Evidence

    The College will utilize a “Preponderance of the Evidence” standard in evaluating allegations of Sexual Harassment. “Preponderance of the evidence” means the evidence on one side outweighs, or is more than, the evidence on the other side. This is a qualitative, not a quantitative, standard.
  2. Initial Meetings and the Intake Process

    Initial Meetings. A Complainant may meet with the College’s Title IX Coordinator for the purposes of discussing their reporting options, Supportive Measures, etc. Below is a summary of the topics the College’s Title IX Coordinator might address during initial meetings with the Complainant:
    • Assistance with care and support resources, medical providers, and law enforcement;
    • Supportive Measures;
    • Procedures for determining next steps and appropriate resolution process; and,
    • Options for participating in an Alternative Resolution or Formal Grievance Process.
  3. Notice of Allegations

    Once an investigation has been initiated, the Title IX Coordinator will send a written notice to both parties which will include:
    • The identities of the parties (if known);
    • A summary of the alleged conduct, including the date(s), time(s), and location(s) of incident(s) (if known);
    • Policy sections alleged to be violated by the conduct;
    • The formal grievance process, including any available Alternative Resolution processes;
    • A statement that Respondent is presumed not responsible until a determination of responsibility is made following the investigation and hearing;
    • A statement that the College will not make a determination of responsibility until the conclusion of the grievance process;
    • A notice regarding whether interviews will be recorded, and that only the Investigator is permitted to record interviews;
    • A description of the parties’ opportunities to present, inspect, and review evidence;
    • A statement that the parties may have an Advisor of their choice, who is permitted to be an attorney;
    • A summary of the hearing process and a statement that the Hearing Decision will make factual and policy findings regarding the allegations;
    • A statement that findings will be based on a Preponderance of the Evidence Standard;
    • A notice admonishing the parties against retaliation; and,
    • A notice informing the parties they are prohibited from making false statements or knowingly submitting false information based on the College’s applicable employee handbook.
    The Notice of Allegations shall be amended any time during the investigation to include additional allegations of Policy violations identified during the investigation. An amended Notice of Allegations should include all required information described above.
  4. Timing

    Absent extensions for good cause, the entire Formal Grievance Process should be completed within 90 to 100 business days from the issuance of the Notice of Allegations to the Respondent(s). This includes the investigation, hearing, and any appeal process. A thorough investigation and/or procedurally proper hearing and appeal may necessitate one or more extensions for good cause. Extension requests will be evaluated and denied or granted by the College’s Title IX Coordinator. The College’s Title IX Coordinator will provide notice to both parties of any timeline extensions.

    Failure to complete the Formal Grievance Process within this time period does not, in and of itself, constitute a procedural error. Any such argument of procedural error (as set forth in Section IX.E.) must also include an explanation as to how the delays materially impacted the outcome of the Formal Grievance Process.
  5. Concurrent Criminal Investigations

    On occasion, a criminal investigation may be initiated by a law enforcement agency over the same allegations that are reported in a Formal Complaint submitted to the College. A pending police investigation is a separate investigation and it does not relieve the College of its responsibility to timely investigate complaints under this Policy. A temporary delay for the length of the fact-finding portion of a criminal investigation may constitute good cause for extending the timeline of the College’s investigation.
  6. Confidentiality

    Parties may share confidential information received through the process with their Support Person and Advisor. The College shall not restrict the ability of the parties to discuss the allegations under investigation for the purpose of gathering and presenting relevant evidence.

    College representatives are permitted to share confidential information among other Institution representatives who have a reasonable need to know. The College will endeavor to respect any requests for confidentiality, but will also weigh those requests against the College’s responsibility to maintain a safe environment for the College community. Complete confidentiality cannot be guaranteed.
  7. Right to an Advisor

    Parties may elect to be accompanied by an Advisor during meetings and proceedings related to the investigation and hearing process outlined in this Policy. Parties are limited to one Advisor. An Advisor can be anyone, including an attorney. The Advisor may not speak on behalf of the party or otherwise disrupt any interviews or proceedings.

    Specific guidelines regarding the Advisor role at the hearing are outlined below. The College reserves the right to exclude or remove an Advisor who does not comply with this Policy.

    A party does not have to have an Advisor during the investigation process. The College will not provide any party with an Advisor during the investigation process. However, as outlined below, the College will provide a party with an Advisor during the hearing, if the party has not already obtained an Advisor.
  8. Support Persons

    Parties may elect to be accompanied by a Support Person during the hearing process. Parties are limited to one Support Person. A Support Person may not be a party or a witness in the case. The Support Person’s role is to provide emotional support throughout the process. The Support Person may not speak on behalf of the party or otherwise disrupt any interviews or proceedings. The College reserves the right to exclude or remove a Support Person who does not comply with these procedures.
  9. Accepting Responsibility

    A Respondent may accept responsibility for the conduct alleged at any time during the investigation or hearing process, and acknowledge the identified Policy violation(s). If a Respondent accepts responsibility for the violation(s), they may proceed to sanctioning rather than completing a hearing. In doing so, the Respondent waives any right to appeal the Policy determination of responsibility.
  10. Closure

    Not all reports of potential Sexual Harassment constitute a report of prohibited conduct that may be resolved through this Policy.

    The College must close and dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:
    • The conduct alleged in the formal complaint would not constitute Sexual Harassment as defined above, even if proved; and/or
    • The conduct did not occur in an educational program or activity controlled by the College (including buildings or properties controlled by recognized student organizations); and/or
    • The alleged conduct did not occur against a person in the United States; and/or
    • At the time of filing a formal complaint, a Complainant is not participating in or attempting to participate in (an education program or activity of the College.
    Additionally, the College may close and dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing:
    • A Complainant notifies their Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein; or
    • It is determined that the Respondent is no longer enrolled or employed by the College;
    • Specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.,
    A decision to close a matter based on any of the above-listed factors is made at the discretion of the College’s Title IX Coordinator.

    Upon termination of the process, the College’s Title IX Coordinator will provide written notice to the parties describing the reason for the dismissal. The College may continue to investigate the allegations as a potential violation of another policy. If the College elects to continue the investigation outside of the College Title IX Policy, the College’s Title IX Coordinator shall provide written notice to the parties describing the determination.

    The dismissal determination is appealable by any party under the procedures for appeal outlined in Section IX.E., below. The decision not to dismiss is also appealable by any party claiming a dismissal is required or appropriate.

    A complainant who decides to withdraw a complaint may later request to reinstate or refile the complaint.
  11. Amnesty

    Any individual (including a witness or a third party) who shares information in the interest of any individual’s health and safety will not be subject to disciplinary action by the College for their own personal consumption of alcohol or other drugs at or near the time of any incident, provided they did not harm another or place the health or safety of any other person at risk. The College may require an educational conference where support, resources, and educational counseling options may be discussed and potentially required with a learning action plan for an individual who has engaged in the illegal or prohibited use of alcohol or drugs.
  12. Consolidation of Formal Complaints

    The College may consolidate Formal Complaints under two circumstances:
    • Where there is a complaint involving more than one Complainant and/or Respondent, stemming from the same facts or circumstances; or,
    • Where a cross-complaint has been filed by a Respondent against a Complainant.
    A decision to consolidate matters based on any of the above-listed factors is made at the discretion of the College’s Title IX Coordinator. If the College’s Title IX Coordinator determines consolidation is appropriate, they must send notice to all involved parties.
  13. Interpretation

    This Policy is intended to be self-explanatory. The Adjudicator is responsible for interpretation of policy definitions of prohibited conduct. Should a disagreement arise over interpretation of another area of Policy, exclusive authority to interpret the Policy lies with the Title IX Coordinator. Any such interpretation shall be final. In reaching a final interpretation, the Title IX Coordinator may consult with other TCC Title IX Coordinators or legal counsel at any point during the investigatory or adjudicatory process.

B. Investigation Process

  1. Designation of the Investigator

    The College’s Title IX Coordinator will designate an Investigator to conduct a fair, thorough, and impartial investigation.

    The Investigator will have had appropriate training in the definitions of Sexual Harassment, the scope of the College’s education programs and activities, the investigation and hearing processes, the Alternative Resolution processes, and investigative report writing.
  2. Investigation Process

    Both parties will be provided equal opportunity to meet with the Investigator, submit evidence, and identify relevant witnesses. The Investigator will meet separately with the Complainant, Respondent, and witnesses. The Investigator has discretion regarding which witnesses to interview and when to conduct follow-up interviews with parties and witnesses.

    The Investigator will prepare a written summary of each interview and send same to the witness or party for a review of accuracy. Unless the individual requests additional time, the written summary will be deemed accurate if the individual does not provide feedback on the written summary within two (2) business days of the Investigator emailing it to the individual.

    The Investigator will take reasonable steps to gather relevant available evidence. The Investigator may exclude evidence they determine to be irrelevant or immaterial. The Investigator will not consider evidence which requires seeking information protected by a legally recognized privilege, unless the person holding the privilege has waived the privilege.

    The College shall not restrict the ability of the parties to discuss the allegations under investigation for the purpose of gathering and presenting relevant evidence.

    The Investigator may gather information related to prior or subsequent conduct of the Respondent in determining pattern, knowledge, intent, motive, or absence of mistake.

    The Investigator will not gather evidence or ask questions related to the parties’ sexual predisposition or prior sexual behavior unless:
    • The evidence and/or questions are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant;
    • They concern specific incidents of the Complainant’s or Respondent’s prior sexual behavior with respect to one other and are offered to prove or disprove consent;
    • The sexual history is relevant to explain an injury; and/or
    • The sexual history is relevant to show a pattern of behavior.
    The Investigator will not gather sexual history as it pertains to a party’s reputation or character.

    Prior to any meeting, including an investigative interview meeting with a party, the Investigator shall provide the party with written notice of the date, time, location, participants, and purpose of the meeting. The Investigator shall provide the written notice with sufficient time for the party to prepare for the meeting. An Advisor and a Support Person may accompany a party to every meeting.
  3. Recording

    The College may elect to electronically record investigative interviews. If they choose to do so, the Investigator will inform the parties and witnesses of this intent. The College will retain any recordings it has made as the only authorized recording of the interviews. A recorded party may request to review the transcript or audio of their interview in-person and under supervision by a College representative. A party may request to review the transcript of the other party in-person and under supervision by a College representative.

    Investigation recordings will be maintained for seven (7) years after the conclusion of the Formal Grievance Process, the Respondent’s graduation, separation from the College, or separation from College employment, whichever is latest.
  4. Evidence Review

    Before issuing the final Investigation Report, the College’s Title IX Coordinator will provide a preliminary Investigation Report[5] to the parties, and provide the parties with an equal opportunity to respond to the relevant evidence, including allowing parties to present additional relevant evidence or information. This is known as the Evidence Review Process. This opportunity should be provided to each party regardless of whether the party participated in the investigation. Absent good cause, parties are provided with ten (10) business days to review and respond to the evidence.

    The College’s Title IX Coordinator will have discretion to determine how to provide access to the preliminary Investigation Report to the parties, based on the particular circumstances of the case and any party or witness privacy concerns. Neither Complainant, Respondent, nor anyone on either party’s behalf may copy, remove, photograph, print, record, or in any other manner duplicate the information contained in the preliminary Investigation Report (unless a party is describing the material in a written response to the evidence).

    As part of this Evidence Review Process, the parties may submit proposed questions for the Investigator to ask of the other party or any witness, request additional interviews and information-gathering, and/or suggest additional witnesses. The Investigator has discretion to determine if the responses warrant additional information-gathering. If the Investigator determines it is unnecessary to ask individuals additional questions, interview new witnesses, and/or gather additional evidence, the Investigator will explain their decision in the final Investigation Report.

    If additional evidence is provided, the parties submit a written response to the evidence, or new evidence is gathered, it will be included in either a revised preliminary Investigation Report or a separate addendum, as deemed appropriate by the Investigator. Both parties will be provided a reasonable opportunity to review and respond to any new evidence. The Investigator will determine when it is appropriate to conclude the evidence review process. The College’s Title IX Coordinator will notify the parties when the Evidence Review Process is complete and the Investigation Report is finalized.
  5. Final Investigation Report

    At the conclusion of the Evidence Review Process, the Investigator will prepare a final written report that includes:

     

    • The identities of the parties;
    • The identities of the witnesses;
    • The dates of conducted interviews;
    • A summary of the allegations;
    • The policy alleged to be violated by the conduct;
    • A summary of the investigation process;
    • The relevant statements of the parties and witnesses;
    • A summary of the relevant evidence considered by the Investigator;
    • A description of the relevant, material undisputed facts;
    • A description of the relevant, material disputed facts;
    • A statement describing how and when the parties were given the opportunity to review the evidence; and,
    • Explanations for why evidence or witnesses submitted by the parties were not considered.
    The report will not include findings of fact, findings of policy, or credibility determinations for parties or witnesses (other than to note when credibility is not disputed).[6]

    The College’s Title IX Coordinator will provide the parties with a final copy of the Investigation Report, including all attachments, at least 10 days prior to a hearing. The parties may submit a written response to the final Investigation Report. Written responses are incorporated into the materials that can be reviewed and considered by the Adjudicator.

C. Hearing

If the College’s Title IX Coordinator determines, after the final Investigation Report is issued, that closure of the matter under this policy is not warranted, the matter shall proceed to a hearing. A hearing will be held in which an Adjudicator will make findings of fact on disputed facts, and findings of policy on the relevant Policy the Respondent is alleged to have violated.

Individuals may choose not to participate in the hearing. In certain circumstances involving student employee respondents, if any individual – Complainant, Respondent, and/or witnesses – chooses not to participate in the hearing, the Adjudicator may not be able to consider a statement made by the individual to the Investigator. Parties (Complainants and Respondents) may also choose to attend the hearing and not answer questions. The Adjudicator will not draw any adverse inferences only from an individual’s decision to not participate in the hearing, although this decision may impact the information available to the Adjudicator in reaching their decision. However, the Adjudicator may draw adverse inferences if an individual selectively participates in the hearing (for example, answering some questions but declining to answer others).

The hearing is a closed proceeding and will not be open to the public. The witnesses will only be present in the hearing for the duration of their own testimony.

The Adjudicator will permit breaks, as needed, throughout the hearing. All participants in the hearing will behave in a respectful manner, as outlined in the College’s Rules of Decorum. The Rules of Decorum will be shared with the parties, their Advisors, and Support People prior to the hearing. The Adjudicator has the discretion to remove any participant or observer who is not conducting themselves according to the Rules of Decorum.

The College expects the parties will desire that the College share documentation related to the allegations with their Support Person and/or Advisor. Where applicable, the College provides a FERPA release form that authorizes such sharing and participation. The parties must complete this form before the College is able to share records with a Support Person and/or Advisor. Parties must also complete this form before the commencement of the hearing. The parties are not otherwise restricted from discussing and sharing information relating to allegations with others who may support them or assist them in preparing and presenting. Support Persons and/or Advisors are expected to maintain the privacy of the records shared with them by the College. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the College. The College may seek to restrict the role of any Support Person and/or Advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations.

  1. Hearing Coordinator

    The College’s Title IX Coordinator will be responsible for serving as or designating another to serve as Hearing Coordinator who will coordinate the hearing process. The Hearing Coordinator will ensure the Adjudicator is provided with all necessary materials, including the Investigation Report and attachments, as well as any party’s written responses to the final Investigation Report. The Hearing Coordinator will also arrange a location for the hearing and coordinate a date and time for the hearing.

    The Hearing Coordinator will act as a liaison between the parties and the Adjudicator on all procedural matters.
  2. Designation of Adjudicator

    The College’s Title IX Coordinator will be responsible for designating an Adjudicator, distinct from the Hearing Coordinator and any Title IX Coordinator, who will preside over the hearing and draft the Hearing Decision. The Adjudicator is a single individual, either internal or external to the College. The Adjudicator is responsible for overseeing the hearing, making procedural determinations, managing the questioning process, and issuing the Hearing Decision.

    The Adjudicator will have had appropriate training in the definitions of Sexual Harassment, the scope of the College’s education programs and activities, the investigation and hearing processes, the Alternative Resolution processes, and hearing decision writing.

    Additionally, the Adjudicator will be trained on the following:
    • any technology to be used at the hearing;
    • issues of relevance of questions and evidence; and,
    • when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant.
    The Hearing Coordinator will provide the parties with written notice of the Adjudicator’s identity.

    After the Hearing Notice has been sent, parties will have five (5) business days to object to the selection of the Adjudicator for an actual conflict of interest or bias. An actual conflict of interest exists if the Adjudicator has a close personal relationship with one of the parties or witnesses. Prior work for the College, prior work on Title IX-related matters, and any prior decisions regarding similar matters do not constitute bias on their own. The Adjudicator’s sex, gender identity, race, ethnicity, religion, sexual orientation, or other identifying characteristic do not constitute a reason for bias on their own. The College’s Title IX Coordinator will consider and resolve any objections to the selection of an Adjudicator.
  3. Witnesses

    The Adjudicator has ultimate discretion to call witnesses and may determine not to call witnesses submitted by the parties, and to call witnesses who were not submitted by the parties. The Adjudicator will communicate to the Hearing Coordinator the witnesses they have determined should be called for the hearing, what their expected relevant testimony will be, and their explanations for determining not to call witnesses submitted by the parties if they make such determinations.

    The Hearing Coordinator will request the attendance of all the witnesses whose testimony the Adjudicator determined was within the hearing scope. The Hearing Coordinator will arrange to have the Investigator present at the hearing for questions regarding the investigation and the Investigation Report.

    The College cannot compel parties or witnesses (with the exception of the Investigator) to testify in the hearing. Any witnesses’ decision not to participate will not be a reason to cancel or postpone a hearing. Investigators who are current employees of the College are expected to participate in the hearing, if requested. Non-employee investigators, including investigators who have left employment with the College, can be requested, but cannot be compelled, to participate in the hearing.
  4. Hearing Notice

    At least five (5) business days prior to the scheduled hearing, the Hearing Coordinator shall send the parties written notice of the hearing. The written notice will include the following information:
    • The time, date, and location of the hearing, including if the hearing will be conducted entirely via videoconference;
    • The identity of all parties participating in the hearing, including witnesses approved by the Adjudicator;
    • A list of all documents the Adjudicator may consider in reaching their determination;
    • the College’s Live Hearing Expectations; and,
    • A general overview of the hearing process.
  5. Recording

    The Hearing Coordinator is responsible for ensuring the hearing is audio recorded. The College shall retain the recording as the only authorized recording of the hearing. A recorded party may request to review the transcript or audio of the hearing in-person and under supervision by a College representative.

    Hearing recordings will be maintained for seven (7) years after the conclusion of the Formal Grievance Process, the Respondent’s graduation, separation from the College, or separation from employment with the College, whichever is latest.
  6. Separation of Parties

    Hearings may be conducted with any or all parties, witnesses, and other participants appearing virtually, with technology enabling participants to simultaneously see and hear one another, or with parties physically present in the same geographic location.

    As standard practice, the parties will be physically separated during the hearing and participate virtually unless both parties request otherwise. The Adjudicator is responsible for making a final decision about the location of the parties during the hearing.
  7. Hearing Questioning and Role of the Advisor

    The Adjudicator will determine the order of questioning at the hearing. The Adjudicator may change the order of questioning, with appropriate verbal notice to the parties, if the Adjudicator determines a change is necessary to accommodate a witness’ schedule, or for other procedural reasons. The Adjudicator may ask questions at any time of any party providing testimony during the hearing.

    The Adjudicator will permit each party’s Advisor to ask the other party(ies) and any witnesses relevant questions, including questions challenging credibility. This questioning will be conducted directly, orally, and in real-time by the party’s Advisor and never by a party personally. The questions must be relevant to the hearing scope, not be repetitive of information already gathered, and/or not be harassing of any party. The Adjudicator will evaluate each question asked. If the Adjudicator determines the question should not be asked, the Adjudicator will direct the party/witness not to answer the question and state their reasoning on the record. The Adjudicator also has the authority to pause questioning by an Advisor at any time to ask follow-up questions, or as otherwise deemed necessary. All determinations made by the Adjudicator are final, including determinations on questioning.

    Should a party choose not to question a party or witness, the party shall affirmatively waive their right to question through a written or oral statement to the Adjudicator either before or during the hearing. A party’s waiver of their right to question an individual providing testimony does not eliminate the ability of the Adjudicator to consider the testifying individual’s statements made during the hearing and/or to the investigator.

    Parties are expected to notify the Hearing Coordinator of the identity of their Advisor and Support Person. The Hearing Coordinator will share this information with the other party.

    Parties are required to have an Advisor present during the hearing, even if the party does not wish to ask questions of any individual testifying. If a party does not have an Advisor at the commencement of the hearing, the College will provide the party with an Advisor, for the purpose of assisting the party with questioning during the hearing. If parties know they will not have their own Advisor at the hearing, they are encouraged to notify the Hearing Coordinator of this fact as soon as possible.

    Should a party not have an Advisor prior to the hearing, the College will provide an Advisor trained in the hearing process and in the development and posing of relevant questions. The party must utilize the Advisor provided by the College for purposes of questioning during the hearing.

    If a party does not participate in, or attend, the hearing, their Advisor may still appear at the hearing and ask questions of the other party(ies) and witnesses.

    Absent their role in questioning, Advisors will remain silent during the hearing. They may not answer questions on behalf of any party, nor may they make closing statements on behalf of any party.

    All participants at the hearing will behave in a respectful manner. The Adjudicator has discretion to remove any participant or observer who is not conducting themselves in a manner conducive to a fair, safe, and orderly hearing.
  8. Party Mitigation and Impact Statements

    Within five (5) business days after the last day of the hearing, the parties may provide to the College’s Title IX Coordinator written statements related to potential sanctions. Specifically, parties may submit a written impact and/or mitigation statement.

    If the Adjudicator determines there was a violation of policy, the Adjudicator will notify the College’s Title IX Coordinator before issuing their Hearing Decision. The College’s Title IX Coordinator will provide the Adjudicator with copies of the party statements, in accordance with Section IX.D, below. If the Adjudicator determines there was not a violation of policy, the College’s Title IX Coordinator will not release the party statements to the Adjudicator.
  9. Hearing Decision

    The Adjudicator will consider the investigation record, including the Investigation Report and attachments, and the evidence accepted at the hearing in drafting their Hearing Decision. The Adjudicator will use a preponderance of the evidence standard to determine whether a Policy violation occurred. The Adjudicator will make their own findings and credibility determinations based on a preponderance of the evidence.

    If a party or witness does not submit to questioning from the Adjudicator, or the party’s Advisors, the Adjudicator may not rely on any statement of that party or witness in reaching their determination. The Adjudicator will not draw an inference regarding a person’s decision not to participate in the hearing, nor will they draw an inference regarding a person’s decision not to answer questions posed during the hearing. However, the Adjudicator may consider a person’s selective participation during the hearing in assessing credibility. Selective participation, for purposes of this Policy, means a party chooses to answer some questions and declines to answer others.

    If the Adjudicator finds a violation of policy, the Adjudicator and the College shall follow the procedures set forth in Section IX.D. – Sanctioning.

    If the Adjudicator does not find a violation of policy, the Adjudicator will finalize the Hearing Decision and submit the Hearing Decision to the College’s Title IX Coordinator. The Hearing Decision will include the following:
    • The allegations potentially constituting Sexual Harassment;
    • A description of the procedural steps taken from receipt of the Formal Complaint through the determination;
    • Findings of fact;
    • Policy findings (including any violations of other applicable policies, provided the parties were previously provided notice of the inclusion of those other policies);
    • Rationale for each finding.
    Within fifteen (15) business days of the hearing, the College’s Title IX Coordinator will send written notice to both parties of the Adjudicator’s Policy and sanctioning determinations. The College’s Title IX Coordinator will include a copy of the Adjudicator’s decision.

    The College’s Title IX Coordinator will explain the Appeal Process in their written notice to the parties. The Adjudicator’s determination becomes final on the date on which an appeal would no longer be considered timely (see Section IX.E).

    For potential enhancements to sanctions, occurring when a Respondent has instances of prior conduct, please see Section IX.F.

D. Sanctioning

This section sets forth the procedures to be followed should the Adjudicator find that a Policy violation(s) occurred.

In cases involving employee Respondents, if the Adjudicator determines there was a Policy violation, the Adjudicator will notify the College’s Title IX Coordinator. The College’s Title IX Coordinator will take two steps:

  • They will notify the College’s Chief Human Resources Officer and/or appropriate Vice President (“Designated Official”).
  • They will provide the Designated Official with any written party statements, as set forth in Section IX.C.8., above. If the parties did not provide written statements in accordance with Section IX.C.8., above, they will not be provided an additional opportunity to submit a written statement to the Adjudicator.
  • Once the Designated Official has completed its review and sanction determination, it will provide that determination to the College’s Title IX Coordinator, who will transmit them to the Adjudicator.

The Designated Official will make a sanctioning determination based on the factual and policy findings, written party statements, written College recommendations, and other factors relevant to sanctioning. These factors include, but are not limited to:

Severity of the violation: The duration of the conduct, whether the conduct was repeated, the number of Policy violations, abuse of power, use of intimidation, use of force, level of endangerment to the Complainant, level of injury to the Complainant, presence of a weapon, deliberate embarrassment, exploitation of level of intoxication, invasion of privacy via recording, photographing, viewing, and distributing.

Aggravation: Whether the Respondent used force, threat, violence, duress, or intentionally caused intoxication to engage in conduct without Complainant’s consent.

Intent: Whether Respondent intended to cause harm; whether Respondent premeditated the conduct; whether Respondent pressured others to engage in the conduct or similar conduct; whether Respondent was pressured by others to engage in the conduct.

Retaliation: Whether Respondent complied with No Contact Orders and other interim measures in place during the investigation and hearing process; whether Respondent engaged in conduct meant to intimidate or harass participants for their participation in the investigation or hearing process; whether Respondent was forthcoming during the investigation and hearing process; whether Respondent engaged in any other conduct which would obstruct the investigation or hearing process, or impacted the fairness of the processes.

Impact: The impact of Respondent’s conduct and presence on the Complainant’s safety and participation in the College’s programs; the impact of Respondent’s conduct on the College’s community; the impact of sanctions on Respondent’s access to participation in the College’s programs.

Possible sanctions include, but are not limited to:

Warning: Written notice that the Respondent’s behavior was in violation of the College Policy and that future violations will result in more severe sanctions.

Restitution: Reimbursement by the Respondent(s) to the College, another Claremont College, the Complainant(s), or a member of the College’s community to cover the cost of property damage or other loss.

Service Hours: A set number of work hours the Respondent must complete. The Title IX Coordinator will determine the nature of the work to be performed. Generally, service hours are conducted on campus.

Educational Program/Project: Programs and activities designed to help the Respondent become more aware of the College’s policies and help the Respondent understand the inappropriateness of their behavior, including, but not limited to, participation in an educational program or completion of an online program.

Referral for Assessment: A referral for an assessment with an appropriately trained therapist who will recommend a process for treatment. Reinstatement is conditioned upon receiving proof of completion of the recommended treatment.

Loss of Privileges: Denial of specific privilege(s) for a defined period of time. Privileges include, but are not limited to, participation in extra-curricular activities and events such as social events, intercollegiate athletics, intramural programs, student organizations, and student government, as well as the privilege of living on campus, living in a specific residence hall, participation in commencement ceremonies, or having a vehicle on campus.

Restricted Access: Conditions which specifically dictate and limit the Respondent’s presence on campus and/or participation in College-sponsored activities. The restrictions will be clearly defined and may include, but are not limited to, presence in certain buildings or locations on campus or a No Contact Order. In cases involving parties from different Claremont Colleges, restricted access may extend to exclusion from another institution’s campus.

Removal of Offending Cause: Requirement to remove the item which was the subject of the complaint.

Relocation or Removal from Residence Halls: Requirement that the Respondent relocate to another residence hall, or off-campus, by a specified date.

Behavioral Improvement Plans: Formal, written notice that the employee’s conduct is in violation of College policies and an expectation that the employee exhibit good behavior for a defined period of time. Any further violations during the probationary period will result in increased sanctioning and may result in employment suspension without pay or termination of employment.

Suspension: Separation from the College for a defined period of time for student workers. During the suspension period the Respondent is not permitted on campus, is not permitted to participate in any College-sponsored or affiliated program, employment, or activity, and is not permitted to earn any credits towards the Respondent’s degree. The terms of the suspension may include the designation of special conditions affecting eligibility for re-enrollment or special conditions to be in effect upon re-enrollment, including a term of Conduct Probation.

Suspension without Pay (staff and faculty): Separation of employment for a defined period of time without pay for the time of separation.

Employment Termination: Permanent separation of the employee from their position. If the Respondent is a student, they may be permanently separated from their student position, and banned from future employment by the College. A staff or faculty member who is terminated from their employment is not permitted to participate in any College-sponsored or affiliated program or activity.

Expulsion: Permanent separation from the College for student workers. A student Respondent who has been expelled is not permitted on campus and is not permitted to participate in any College-sponsored or affiliated program or activity. A student who is expelled for the purposes of this policy is not eligible for future employment by the College in either faculty or staff positions.

Pursuant to the Faculty Handbook, termination of a tenured appointment, or of a term appointment before its expiration occurs only for adequate cause. For faculty respondents, if the Vice President, Academic Affairs/Dean of the College determines that dismissal is appropriate, they will consult the procedures of the “Pomona College Dismissal Policy” found in the Faculty Handbook, and initiate related proceedings as appropriate. In applying these procedures, the finding that the policy has been violated will not be revisited. The sole decision is whether the specific policy violation constitutes acts sufficient to support adequate cause for termination or dismissal.

If the Respondent is a member of the executive staff of the President, the President will serve as the disciplinary authority to determine sanctions. If the President is the Respondent, the Chair of the Board of Trustees will serve as the disciplinary authority to determine sanctions.

E. Appeal

A Complainant or Respondent who is not satisfied with the determinations made as to proceeding with a Formal Complaint under this Policy, closure of a Formal Complaint under this Policy, and/or the policy findings or sanctions imposed at the completion of the hearing process may submit an appeal to the College’s Title IX Coordinator. The College’s Title IX Coordinator will identify an appropriate trained Appeal Officer to review and make a determination of the appeal(s).

When the Title IX Coordinator identifies an Appeal Officer, they will provide written notice of the individual’s identity to the parties.

Appeals must be submitted within five (5) business days of the Notice of the Hearing Decision to the College’s Title IX Coordinator. The appeal must specify which grounds the appeal is based upon and include any arguments the party wishes to make in support of their appeal. Appeals are limited to ten (10) pages, including attachments.

  1. Appeal Grounds

    A party may appeal based on a determination as to proceeding with a Formal Complaint under this Policy and/or closure of a Formal Complaint under this Policy under one or more of the following grounds:

    Procedural Error: There was a procedural error(s) during the investigation or hearing process which materially affected the outcome of the process. The appealing party must describe in their appeal how the procedural error impacted the outcome.

    Conflict of Interest: The Title IX Coordinator, Investigator(s), and/or Adjudicator had a conflict of interest or bias for or against any party that affected the outcome of the matter. The appealing party must describe in their appeal the alleged conflict of interest or bias held by the individual and how this altered or impacted the outcome.

    New Evidence: There is new evidence which was not available or known (and could not have reasonably been known) at the time of the final determination which materially affected the outcome of the process. The appealing party must describe in their appeal how the new evidence would have altered the outcome of the process and why the new evidence was not available or reasonably known prior to the appeal.
  2. Appeal Officer

    As noted above, the College’s Title IX Coordinator will designate an appropriate Appeal Officer to conduct a prompt, thorough, and impartial review of the appeal. The Appeal Officer will not be the same person as the Adjudicator, Investigator, or Title IX Coordinator.

    The Appeal Officer will have had appropriate training in the definitions of Sexual Harassment and sexual misconduct, the scope of the College’s education programs and activities, the investigation and hearing processes, the Alternative Resolution processes, and appeal decision writing.
  3. Accepting an Appeal

    The Appeal Officer will determine if the party has provided sufficient support for the grounds of their appeal. If the Appeal Officer finds the appeal is insufficient or does not state any of the proper grounds for appeal, they will send written notice to the appealing party and give them the opportunity to amend their appeal to cure the defects. The Appeal Officer will provide a new deadline for submitting the appeal.
  4. Appeal Response

    The College’s Title IX Coordinator will send a written notice of the appeal to the non-appealing party and provide them with a copy of the appeal. The non-appealing party may issue a response to the appeal. The appeal response is limited to ten (10) pages, including attachments, and may address only the issues raised in the appeal. The non-appealing party will have five (5) business days to submit their appeal response after receiving the notice of the appeal.
  5. Appeal Record

    The review of an appeal will not involve any additional investigation by the Appeal Officer. The review will be based upon evidence introduced during the investigation process and presented at the hearing, as well as the arguments made during the appeal process. The Appeal Officer will not consider new evidence for the purposes of upholding, overturning, or modifying the findings. Appeals submitted under the ground of new evidence will be considered only to determine whether the new evidence could likely change the findings.
  6. Appeal Decision

    The Appeal Officer will draft a written report which summarizes their decision regarding the appeal. The Appeal Decision will include a description of the ground(s) for the appeal, a summary of the issues raised on appeal, a statement regarding the evidence considered, a statement describing the decision was made based on the preponderance of the evidence standard, and the determination regarding the appeal.

    The Appeal Officer may decide the following:
    • Uphold the findings and sanctions;
    • Overturn the findings and/or sanctions;
    • Modify the findings and/or sanctions; or,
    • Remand the case for a second hearing based on new evidence which could likely affect the outcome of the matter.
  7. Notice of the Appeal Decision

    The College’s Title IX Coordinator will send written notice of the Appeal Decision to both parties within thirty (30) business days of the issuance of the Hearing Decision. The Notice of the Appeal Decision will include a copy of the written Appeal Decision. The notice will inform the parties there is no further review of the matter, no further right to appeal, and the matter is closed.

    The determination regarding responsibility and sanctioning becomes final on the date of the Appeal Decision, unless the Appeal Decision determines another hearing is necessary based on new evidence discovered.

F. Compliance with Final Sanctioning Determination

For student Respondents, the Title IX Coordinator is responsible for ensuring completion of the sanction. For employee Respondents, the College’s Designated Official is responsible for ensuring completion of the sanction.

IX. Training And Recordkeeping

The College will retain documents related to this process for a period of seven (7) years. Documents related to this process include: Formal Complaints, remedies provided to the Complainant, the Investigation Report and attachments, the Hearing Decision, any sanctioning determination, and all appeal-related documents, as well as any audio recording or transcript of the hearing.

The College will also retain, for a period of seven (7) years, all materials used to train Coordinators, Investigators, decision-makers, and any person facilitating the Alternative Resolution or appeal process. The College shall make this training material publicly available on its website.

There are multiple individuals involved in the Formal Grievance Process – Title IX coordinators, Investigator, Adjudicator, facilitator of the Alternative Resolution Process, and Appeal Officers. No individual involved in the grievance process may have a conflict of interest or bias for or against any party, nor may they have a bias for or against Complainants or Respondents in general. All individuals involved in the grievance process shall receive yearly training on the grievance process. This training shall include:

  • The definition of Sexual Harassment, per this Policy;
  • Scope of the Institution’s education program or activity; and,
  • How to conduct an investigation and grievance process under this Policy.

X. Retaliation

The College prohibits retaliation against any person exercising their rights under this Policy. Retaliation is an adverse action against a person based on their report or other disclosure of alleged Sexual Harassment to a College employee or their participation in the investigation, reporting, or disciplinary processes provided for in this Policy. An adverse action is conduct that would discourage a reasonable person from reporting Prohibited Conduct or participating in a process provided for in this Policy, such as threats, intimidation, harassment and coercion. Retaliation does not include good faith actions lawfully pursued in response to a report of Prohibited Conduct.

XI. Effective Date

This Policy is effective as of October 2022, and only applies to Sexual Harassment alleged to have occurred on or after August 14, 2020. Incidents of Sexual Harassment alleged to have occurred before August 14, 2020, will be investigated and adjudicated according to the process in place at the time the incident allegedly occurred.


 

[1] Title IX Sexual Harassment now refers to specific forms of sexual misconduct (see Section III). Conduct that does not meet the definition of Sexual Harassment, as defined by this Policy, may still be addressed through other College’s policies and processes, including, but not limited to the TCC Title IX Policy, the College’s Non-Title IX Sexual Misconduct, Sexual Harassment, Gender Discrimination Policy and Procedures; the College’s Discrimination and Harassment Policies and Grievance Procedures, or the Pomona College Student Code.

 

[2] “Condom stealthing” refers to a person’s knowing or intentional removal of, or failure to use, a condom during sexual activity without the consent of the other person(s), when consent to the sexual activity was conditioned on the use of a condom.

 

[3] Behavior which does not fall under the definition of Sexual Harassment may be addressed through other policies and processes, such as those under the College’s Discrimination and Harassment Policies and Grievance Procedures.

 

[4] If the conduct alleged would not meet the definition of Sexual Harassment, even if sustained, the Title IX process will be terminated. However, the conduct may continue to be investigated under other policies and processes, such as those under the College’s other applicable policies.

 

[5] Before issuing the preliminary Investigation Report, the Complainant’s and Respondent’s Home Institution’s Title IX Coordinators will review the draft preliminary Investigation Report for approval. The purpose of this review is to ensure the preliminary Investigation Report is impartial and reliable.

 

[6] As with the preliminary report, before issuing the final Investigation Report, the Complainant’s and Respondent’s Home Institution’s Title IX Coordinators will review the draft final Investigation Report for approval.