Nondiscrimination Policy

ATSU POLICY NO. 90-210: PROHIBITION OF DISCRIMINATION, HARASSMENT, AND RETALIATION

Purpose

The purpose of this general order is to provide an employment and a learning environment at A.T. Still University of Health Sciences (“ATSU” or “University”) free from discrimination, harassment, and retaliation and ensure compliance with Title IX of the Education Amendments Act of 1972, the Violence Against Women Act Reauthorization of 2013, Title VII of the Civil Rights Act of 1964, and all other applicable national, state, and local laws. Discrimination, harassment, or retaliation by anyone—managers, administrators, supervisors, co-workers, students, or non-University personnel, including clients, vendors, and suppliers—on the basis of race, color, religion, ethnicity, national origin, sex (including pregnancy), gender, sexual orientation, gender identity, age, disability, veteran status, or any other status protected by applicable law, is a violation of University policy and prohibited by ATSU. This policy ensures compliance with law, emphasis on a fair and equitable learning and work environment, and fair process for all concerned.

This policy, and excerpts from it, appears within many ATSU publications, both online and in print. For the most up-to-date version of this policy, refer to atsu.edu/prohibition-of-discrimination-harassment-and-retaliation.

Policy

ATSU does not discriminate on the basis of race, color, religion, ethnicity, national origin, sex (including pregnancy), gender, sexual orientation, gender identity, age, disability, veteran status, or any other status protected by applicable law. Dating violence, domestic violence, sexual assault, stalking, harassment, and retaliation are forms of discrimination prohibited by ATSU under this policy.

Any person who witnesses or has knowledge of incidents of discrimination, harassment, retaliation, or any other situation prohibited by this policy, should report such information to persons listed in this general order. Reports of inappropriate behavior which is not related to class based harassment, discrimination, or retaliation will be handled through supervisory response or through Human Resources (for employees) and the University Student Handbook or promotion boards and/or committees (for students). All who make a good faith report are protected from adverse action or retaliation under provisions of this policy and by ATSU Policy No.10-216: Whistleblower. Good faith reports, even if erroneous, will not result in punitive action. Deliberately false and/or malicious accusations of discrimination and harassment are just as serious an offense as discrimination or harassment and will be subject to appropriate disciplinary action. If ATSU has actual knowledge of reports by multiple individuals regarding discrimination, harassment, or retaliation by the same respondent, the Title IX coordinator (or designee) may initiate investigation into the reports, regardless of the participation level of one or more of the reporting parties.

Internal complaints regarding potential violations of the Clery Act, Title IX, or Title VII

To report violations of ATSU’s nondiscrimination policies, request information, or for assistance filing a police report, all ATSU community members may contact:

Dr. John Gardner, Title IX Coordinator
800 W. Jefferson St., Kirksville, MO, 63501
660.626.2113 or johngardner@atsu.edu

Alternately, the following deputy Title IX coordinators are available at ATSU campuses.

To anonymously and confidentially report situations or behavior prohibited by this policy, call the 24-hour service at 1.855.FRAUD-HL or use the secure online reporting form at fraudhl.com. Reference company ID (“ATSU”) when making a report.

Crime reporting options

If you are in an area without an identified ATSU facility, please contact 911 to report a crime or seek police assistance.

Confidential behavioral health and wellness resources available for students

ATSU Behavioral Health & Wellness Counseling Services (atsu.edu/department-of-student-affairs/counseling)

Regulatory complaints regarding potential violations of the Clery Act, Title IX, or Title VII may be directed to:

Resources

Off-campus counseling and victim support are available through:
National Sexual Assault Hotline – 800.656.4673
Mesa Victim Services Unit (Arizona) – 480.644.4075 Santa Maria Rape Crisis Center Hotline (California) - 805.928.3554
St. Louis Regional Sexual Assault Hotline (Missouri) - 314.531.7273
National Sexual Assault Hotline – 800.656.4673

Employees may access the Employee Assistance Program (EAP) by calling 877.622.4327 or by visiting mycigna.com

Policy definitions

Advisor – A person selected by the complainant or respondent to be present at interviews or the hearing process. Advisors may not answer questions on behalf of their party. Advisors pose questions on behalf of their party in the hearing setting. Advisors may not contact the other party except in the hearing setting. The Title IX coordinator can provide an advisor for a party if the party so desires. A party may request from the Title IX coordinator for more than one advisor if there is a support need, including a disability accommodation. Evidence from a healthcare professional, or similarly situated expert, of a support need will be required. Advisors will present themselves in a professional manner. Investigators, hearing board chairs, and other institutional officials may remove an advisor from the process if the advisor’s behavior is abusive, belligerent, or otherwise inconsistent with a professional nature. A party will be able to replace their advisor if removed.

Appellate panel – A group of trained ATSU employees from the Grievance and Equity Response Team (GERT) who reviews appeals of findings from the Title IX Grievance Process or General Discrimination Grievance Process.

ATSU community member – A person participating in or attempting to participate in an ATSU education program as an employee, student, prospective student, alumni, or similarly positioned individual.

Coercion – Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors including the type and/or extent of the pressure used to obtain consent. When someone makes clear they do not want to engage in certain sexual activity, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Complainant – An ATSU community member who alleges their educational or employment rights were infringed upon based on class-based (race, sex, gender, etc.) discrimination or harassment.

Investigation – A process conducted by unbiased investigators to gather and synthesize evidence while providing analysis of the credibility of evidence. In the General Discrimination Grievance Process, investigator(s) will make a determination of in violation or not in violation of policy. In the Title IX Grievance Process, the investigator(s) will not make a determination of in violation or not in violation, but instead, determine the facts to be considered by the hearing panel.

Consent – Consent is knowing, voluntary, and clear permission by word or action to engage in sexual activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss him/her back (if you want to) without the need to explicitly obtain his/her consent to being kissed back. Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonable time. Consent to some sexual contact (including kissing or fondling) cannot be presumed to be consent for other sexual activity (including intercourse). A current or previous intimate relationship is not sufficient to constitute consent.

Finding – The determination of the hearing panel (Title IX Grievance Process) or investigators (General Discrimination Grievance Process) regarding a violation of policy based on the preponderance of the evidence standard.

Force – Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion intended to overcome resistance or produce consent (e.g., “Have sex with me, or I’ll hit you.” “Okay, don’t hit me, I’ll do what you want.”).

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced.

Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

General discrimination – Discrimination or harassment not defined or covered under Title IX regulations and the Title IX Grievance Process.

Grievance and Equity Response Team (GERT) – A team of trained ATSU employees who serve as advocates, investigators, hearing panel members, and appellate panel members within the grievance process. GERT membership is maintained and trained by the Title IX coordinator.

Hearing panel – A group of trained ATSU employees (usually three) from the GERT who hear and conduct a proceeding to determine a finding regarding a formal complaint of discrimination in the Title IX Grievance Process.

Incapacitation – A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including by alcohol or other drugs. Incapacitation occurs when someone cannot make rational, reasonable decisions, because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of the sexual interaction). Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs. Incapacitation should be evaluated from the ability of the respondent to know of the incapacitation.

Preponderance of evidence – The standard of evidence used in this policy. This standard indicates it is more likely than not of a finding of either in violation or not in violation of policy.

Recipient – The institution receiving federal funding. In this policy, the recipient is ATSU.

Respondent – Party accused of violating ATSU policy.

General overview of grievance processes

The general overview of grievance processes is a simplified guide. For specific information about each process, please review the actual processes, Title IX Prohibited Conduct and Grievance Process and General Discrimination Prohibited Conduct and Grievance Process below.

Title IX Prohibited Conduct and Grievance Process

This process applies to ATSU community members in their dealings with each other within the educational program of ATSU. If through this process, any University employee or student is found in violation of this policy, then they will be subject to corrective action up to and including termination or dismissal. University employees or students may be disciplined, up to and including termination or dismissal, for engaging in behavior disrespectful, disruptive, or otherwise prohibited by this policy, regardless of whether such behavior constitutes harassment prohibited by law. Patient complaints related to discrimination or harassment will be addressed under ATSU Policy No. 30-103: Patient Complaints.

• Prohibited conduct under Title IX
  • Prohibited conduct includes unwelcome conduct, whether verbal, non-verbal, physical, or visual, based on or relates to an individual's sex (including pregnancy), gender, or sexual orientation, which occurs within the U.S. as a part of the recipient’s program or activity to a person who participates in a recipient’s program or is attempting to participate in a recipient’s program and such conduct has the effect of creating a hostile environment, constitutes quid pro quo harassment, or constitutes sexual assault, dating violence, domestic violence, or stalking.
    1. Hostile environment
       • Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive it effectively denies a person equal access to the recipient’s education program or activity or alters the conditions of employment from both a subjective (the alleged victim’s) and an objective (a reasonable person standard) viewpoint.
       • Determination of whether an environment is “hostile” will be based upon circumstances, including:
         • Conduct’s frequency;
         • Conduct’s nature and severity;
         • Whether the conduct was physically threatening;
         • Whether the conduct was humiliating;
         • Conduct’s effect on the alleged victim’s mental or emotional state;
         • Whether the conduct was directed at more than one person;
         • Whether the conduct arose in the context of other discriminatory conduct;
         • Whether the conduct unreasonably interfered with the alleged victim’s educational or work performance;
         • Whether the statement is an utterance of an epithet, which engenders offense in an employee or student or offends by mere discourtesy or rudeness;
         • Whether the speech or conduct deserves the protections of academic freedom or the First Amendment of the U.S. Constitution; and
         • Whether the conduct impacts the educational or work environment, regardless of the location of the actual harassment, discrimination, or retaliation.
       • Examples of prohibited conduct include, but are not limited to, jokes, epithets, slurs, insults, negative stereotyping, written or graphic material (including emails), or any threatening or intimidating acts denigrating or showing hostility toward an individual and relate to sex (including pregnancy), gender, or gender identity.

       • Prohibited behavior also includes any unwelcome behavior of a sexual nature, including sexual advances and propositions; requests for sexual favors; sexual jokes, comments, suggestions, or innuendos; foul or obscene gestures or language; display of foul, obscene, or offensive printed or visual material; unwelcome physical contact of a sexual nature, including bodily contact with the breast, groin, or buttocks; patting, pinching, hugging, or brushing against another individual's body; and any other unwelcome verbal, non-verbal, physical, or visual conduct of a sexual nature where:

         • Submission to such conduct is an explicit or implicit condition of employment or education; or
         • Submission to or rejection of such conduct is used as a basis for employment-related or academic-related decisions, such as a promotion, discharge, performance evaluation, pay adjustment, discipline, work assignment, or any other condition of employment or career or academic development; or
         • Such conduct has the effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, abusive, or offensive working or educational environment.

    2. Quid pro quo harassment

       • An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
       • A person having power or authority over another constitutes sexual harassment when submission to sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational or employment progress, development, or performance. This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational or employment program.

    3. Sexual assault, dating violence, domestic violence, and stalking

       • Sexual assault, defined as:
         • Sex offenses, forcible – Any sexual act directed against another person, without the consent of the complainant, including instances where the complainant is incapable of giving consent. This includes attempts to commit any of the following acts.
         • Forcible rape – 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.
         • Forcible sodomy – Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will, or not forcibly or against the person’s will (non-consensually) in instances where the complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
         • Sexual assault with an object – To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will, or not forcibly or against the person’s will (non-consensually) in instances where the complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
         • Forcible fondling – The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
         • Sex offenses, nonforcible – Nonforcible sexual intercourse. This includes attempts to commit any of the following acts.
           • Incest – Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by state law.
           • Statutory rape – Nonforcible sexual intercourse with a person who is under the statutory age of consent where the violation occurs.

       • Dating violence, defined as:
         
         Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. The existence of such a relationship shall be determined based on the complainant’s statement and with consideration of the length of the relationship, type of relationship, and frequency of interaction between the persons involved in the relationship. For purposes of this definition,

         • Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
         • Dating violence does not include acts covered under the definition of domestic violence.

       • Domestic violence, defined as:

         • a. A felony or misdemeanor crime of violence committed by a:
           • Current or former spouse or intimate partner of the complainant;
           • Person with whom the complainant shares a child in common;
           • Person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner; or
           • Person similarly situated to a spouse of the complainant under the state or local domestic or family violence laws.
           • Any other person against an adult or youth complainant who is protected from that person’s acts under state or local domestic or family violence laws.
         • Domestic violence does not apply to those who are roommates, but do not meet other components of the definition.

       • Stalking defined as:

         • Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
           • Fear for the person’s safety or the safety of others; or
           • Suffer substantial emotional distress.

         • For the purposes of this definition,

           • Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
           • Reasonable person means a reasonable person under similar circumstances and with similar identities to the complainant.
           • Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.
         • Additional sex-based complaints of discrimination or harassment, which are mandated by state law, federal court decisions, or state court decisions to have a hearing as a part of the grievance process, will follow the Title IX Prohibited Conduct and Grievance Process.

• Title IX grievance procedures

  • Any individual, who feels s/he has witnessed or experienced behavior prohibited by this policy or who has questions, concerns, or information regarding violations of this policy, should immediately report the circumstance(s) or incident(s) to his/her supervisor or one of the contact persons described in this policy. Once a report is shared with the Title IX coordinator or deputy Title IX coordinator, the complainant will be notified in writing of his/her ability to file a formal complaint. All University employees are required to report any knowledge of violation of this policy, with the limited exception of licensed professional mental health counselors and other persons with a professional license requiring confidentiality who are working within that license.
    • Those doing confidential research approved by ATSU’s Institutional Review Board are not required to report instances of harassment, discrimination, or retaliation reported to them within the specific scope of research. However, researchers must contact the Title IX coordinator to receive guidance on providing the research subject with information on reporting and access to supportive measures and interim remedies.
    • If a complainant does not wish for a formal complaint to move forward, the Title IX coordinator (or designee) may move forward and submit a formal complaint if there is a compelling risk to health or safety of individuals or the community based on a risk assessment. The risk may be based on pattern, predatory behavior, abuse of minors, use of weapons, and/or violence.

  • Upon receipt of a formal discrimination or harassment complaint based on sex, the Title IX coordinator (or designee) will conduct an initial assessment of the formal complaint to determine whether it indicates a possible violation of this policy. If a report is made, the Title IX coordinator (or designee) will review the report in an initial meeting with the complainant. Objectives of this initial meeting will be to reduce the report to writing, stop the harassment, prevent its recurrence, and take steps to remedy its effects in the interim.

    • A report must be made in writing to the Title IX coordinator or a deputy Title IX coordinator to initiate an initial assessment, which may lead to an investigation.
    • A complainant may receive supportive measures without submitting a formal complaint in writing. Supportive measures include, but are not limited to, academic, housing, co-curricular activity, and employment adjustments, temporary no-contact orders, and other steps to stop the behavior and prevent its occurrence in the interim.
    • The Title IX coordinator (or designee) will review the formal complaint to determine if there is a need to dismiss it as a Title IX violation and refer it to the General Discrimination Grievance Process.
      • Mandatory dismissal under Title IX will occur because:
        • Alleged behavior did not occur within the U.S.

        • Alleged behavior did not occur within the education program or activity (including buildings or property controlled by recognized student organizations), and/or the respondent is not within ATSU’s jurisdiction.

        • Alleged behavior did not meet the definition of sexual harassment, sexual assault, stalking, domestic violence, or dating violence in the policy.
        • Complainant was not participating or attempting to participate in the educational program or employment of the recipient.
      • Discretionary dismissal by ATSU may occur when:
        • Complainant wishes to withdraw the formal complaint (if the complainant notifies the Title IX coordinator, in writing, of this wish).
        • Respondent is no longer enrolled or employed by the recipient.
        • There are specific circumstances preventing ATSU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
      • If a federal or state court requires a hearing for sex- or gender-based offenses, then dismissal under B.2.c.1 and B.2.c.2 do not apply.

  • Reports are reviewed, investigated, and heard by GERT members. In some instances, an outside party may be contracted to complete some or all of the roles in the grievance process.

    • GERT is made up of the Title IX coordinator, deputy Title IX coordinators, and other employees trained to serve in a variety of roles within the grievance process.
    • GERT members receive annual training. This training may include the following topics, processes, and skills, but is not limited to: 1) Training topics: definition of sexual harassment, scope of the recipient’s education program or activity, impartiality, how to avoid prejudging of facts, conflicts of interest, bias, issues of relevance as it relates to questions and evidence (specifically as how it relates to sexual predisposition or prior sexual behavior), 2) Processes: how to conduct an investigation, hearing, appeal, and an informal resolution, and 3) Skills: ability to use technology in a live hearing, writing of investigative reports, and writing of hearing and appeals decisions.
    • GERT members are required to attend annual training. Training is posted on atsu.edu/titleix.
  • If, following initial review of the complaint, it is determined no potential policy violations exist, the Title IX coordinator (or designee) will produce a report stating such conclusion, including all elements of the initial meeting and supportive measures taken.

  • If, after an initial meeting between the Title IX coordinator (or designee) and a complainant, it is determined any part of this policy may have been violated, the complainant may choose to utilize a formal or informal process to address the complaint:

    • Whether a formal or informal complaint, the respondent and complainant will receive notice of the accusations with:
      • Applicable policies with specific sections of violation identified
      • Notice of details of allegation(s)
      • Identities of parties involved
      • Date(s) of incident(s)
      • Location(s) of incident(s)
      • A statement that the respondent is presumed not in violation of policy
      • Access to applicable policies
      • A reminder of the expectation for truthfulness in the process

    • Informal resolution - Typically used for less serious offenses and when the respondent is willing to accept responsibility for some or all of the alleged violation(s). The complainant and respondent must agree to informal resolution in writing.

      • An informal resolution is available to the parties at any time up until a determination has been made within a formal process.
      • Any party involved within an informal resolution may stop it at any time up until an agreement is achieved and request a formal resolution process.
      • Informal resolution process:
        • Parties engage in a dialogue regarding the accusations through a trained facilitator (often the Title IX coordinator). This may be in person, through shuttle diplomacy, or some other manner.
        • Respondent may accept responsibility for all or some of the allegations.
        • Sanctions and remedies are determined by the parties through dialogue and not by ATSU.
        • Parties come to a written resolution which will be maintained on record by the Title IX coordinator.
      • Both parties may have an advisor of their choice present for the informal resolution.
      • ATSU will provide both parties in an informal resolution with written notice of the reported misconduct and any sanctions or remedies that may result from the process.
      • If an informal resolution process is initiated and then stopped, information shared during the informal resolution discussion or process may not be used in the formal resolution process.
      • Parties who begin an informal resolution and request to return to a formal resolution for any reason will not be able to return to the informal resolution process.
      • An informal resolution cannot be conducted between an employee and student. Informal resolutions may only be utilized in employee/employee or student/student complaints.
      • Parties who reach an agreement through an informal resolution waive their appeal rights.
      • A resolution within the informal resolution process is made with the agreement of non-disclosure, and the resolution is binding. Either party who violates the resolution may be in violation of additional policies. Once the agreement is made, there cannot be a formal process resolution.

    • Formal resolution - Investigation and a hearing before neutral, impartial panel members, subject to appeal and final determination. Remedies to restore those impacted will be implemented upon a finding of a policy violation.

      • Investigation
        • Length of investigations is based on a number of factors and variables, including nature and detail of complaint received, complexity of investigation, and cooperation level of parties and witnesses.
        • Investigations will be completed within a prompt and reasonable timeframe dependent on the context and facts related to the complaint.
        • Parties will be regularly updated as to projected timeline for completion of the investigation. During the process, parties will be given timely notice of any meetings at which either or both may be present. Parties will have equal opportunity to present witnesses and provide evidence. Both parties have the opportunity to have an advisor of their choice. If either party does not have an advisor during the investigative process, ATSU will provide an advisor for him/her, if s/he would like. During the hearing process, an advisor is required and will be provided to the parties if they do not have one. It is advised supervisors of the parties should not be advisors. If a supervisor of the respondent is the advisor of choice for either party, the supervisor will not be involved within the sanctioning process. Parties’ advisors may not contact investigators, Title IX coordinator, hearing panel members, or appellate panel members directly. All contact should be initiated and carried out by the parties themselves.
        • Investigators will be assigned from the GERT in an effort to provide the most fair and impartial process. In some circumstances, investigators may be third party consultants.
        • If a respondent withdraws from the University during the investigation process, s/he will not be permitted to re-enroll until disposition of the case, and a notation will be placed on his/her transcript.
        • At the conclusion of the investigation process, the investigation report and evidence collected will be submitted to the Title IX coordinator (or designee), in order to share the report with the parties and provide the report and evidence for the hearing panel.
          • A draft of the investigative report will be provided to the parties. The parties will have 10 business days to respond in writing to the draft report.
          • After receiving responses to the draft report or waiting 10 business days and there is no response, investigators will review additional material provided by the parties and compile the final investigation report.
          • The final investigation report will be provided to the parties, who will have 10 business days to respond to the final investigative report in writing prior to the beginning of the hearing process.
          • In addition to the final report, parties will receive all evidence collected in the investigative process.

      • Hearing

        • The hearing will be conducted live, although some hearings may be conducted virtually depending on case circumstances. Parties will be notified of the hearing time and date no fewer than 10 business days in advance. Notification will include a description of violations of policy; date, time, and location of the hearing; rules of the hearing, and hearing panel members. Rescheduling of the hearing is at the hearing panel chair’s sole discretion. In the case of multiple respondents, there may be joint or separate hearings, and the notice will so indicate.
        • The panel chair will conduct the hearing.
        • The hearing panel will be selected from GERT, who have not previously been involved in the case and have no known bias. Any objections to hearing panel members must be raised in writing to the Title IX coordinator no fewer than five days prior to the hearing. Removal or changing of a hearing panel member is at the discretion of the Title IX coordinator (or designee).
        • Prior to the hearing, a pre-hearing conference will be held to discuss procedural expectations with the parties, answer questions, and resolve any contested areas of process. Issues of relevance regarding lines of questioning and evidence are best decided in the pre-hearing conference rather than during the hearing. The pre-hearing conference will not be recorded.
        • Hearing panel will review the witness testimony, investigator report, and other submitted evidence in order to make a decision of the respondent being in violation or not in violation.
        • Hearing will proceed at the scheduled time, unless rescheduled by the panel chair. Absence of parties, witnesses, or advisors will not postpone a hearing.
        • Both parties may choose to submit an impact statement. The impact statement must be provided to the Title IX coordinator at least one day prior to the hearing. The impact statements will be held by the Title IX coordinator; if the respondent is found responsible at the hearing, impact statements will be provided to the hearing panel for its use during the sanctioning phase.
        • Hearing panel will begin the hearing with an assumption of not in violation on behalf of the respondent. As evidence is introduced, the hearing panel will evaluate credibility of the evidence until all evidence is presented to develop a finding.
        • Hearing panel will use “preponderance of evidence” standard of evidence when determining whether there is a violation of policy.
        • Order of the hearing:
          • Welcome and explanation of the process
          • Presentation of investigative report by the investigator
          • Witnesses for complainant and complainant’s testimony
          • Witnesses for respondent and respondent’s testimony
          • Witnesses requested by hearing panel
          • Conclusion of hearing and notification of timeline for finding
        • The hearing panel may create time limits for different aspects of the hearing process including how long an advisor has to question a party or witness, presentation of the investigative report, opening or closing remarks, etc. Time limits should be equal between the parties.
        • Investigators will present their investigation report during the hearing. The investigative report will not make an indication of findings, but share evidence found during the investigation. Investigators are not to share an opinion regarding whether or not a violation occurred.
        • Parties are entitled to provide witnesses at the hearing. Parties may submit witness lists. Any witness lists must be submitted to the Title IX coordinator no fewer than five business days in advance of the hearing. Witnesses, not submitted five business days prior to the hearing, may not be permitted to participate. The hearing panel chair will notify all parties of the shared witness list no fewer than two business days prior to the hearing. The investigator must have previously questioned all witnesses (If an in-person or virtual questioning is not possible, written response to questions may be accepted as an investigator interview.). It is the parties’ responsibility to ensure their witnesses are present at the hearing.
        • Hearing panel will ask its questions of each witness prior to direct questioning and cross-examination by the parties’ advisors. If a party’s advisor does not arrive for the hearing, ATSU will provide an advisor to conduct direct and cross-examination questions provided by the party.
        • Parties, by their advisors, may question their own witnesses and cross-exam witnesses submitted by a different party. Advisors for parties will conduct questioning, and not the parties themselves. Advisors are to submit their questions from a seated position and in a professional tone. Parties, witnesses, or advisors who behave in a non-professional manner may be removed by the hearing panel chair. Witnesses may only be present for the part of the hearing in which they are questioned. The decision makers may consider testimony and evidence provided at the hearing or within the investigative process. The panel may consider evidence collected during the investigation including interview summaries, transcripts, document evidence, or other evidence regardless of whether a party or witness submits to direct or cross examination. A party or witness’ willingness to submit to cross examination or direct examination may impact the credibility analysis by the hearing panel.
        • The hearing panel chair will communicate a process to parties, advisors, and witnesses regarding whether a question is relevant and, therefore, whether a party should answer. The hearing panel chair has absolute discretion to determine which questions are relevant and may decline to pose or permit certain questions based on relevance. Rationale for not permitting certain questions must be provided within two business days to the submitting party. Questions are usually not allowed because of lack of relevance, repetition, or because they are abusive in nature.
        • Parties and witnesses are encouraged to respond to the hearing panel chair’s approved questions submitted by the advisors and hearing panel. A party does not need to be present for an advisor to ask direct and cross-examination questions of witnesses or other parties.
        • Each party also has the opportunity to refer the hearing panel to inculpatory evidence (evidence indicating the respondent violated policy) or exculpatory evidence (evidence indicating the respondent did not violate policy) which has already been submitted during the investigation. Evidence submitted during the investigation will be available to the hearing panel and does not need to be resubmitted during a hearing. Evidence should be submitted during the investigation period and not during the hearing period. The hearing panel chair has the right to deny admittance of evidence not submitted during the investigation or to refer the case back to the investigation stage.
        • Unless the Title IX coordinator (or designee) determines it is appropriate, no one will present information or raise questions concerning: (1) incidents not directly related to the possible violation, unless such incidents evidence a pattern; (2) sexual history of the parties (Though there may be a limited exception with respect to pattern, sexual history between parties, or where evidence regarding the complainant’s sexual history is offered to prove a person or persons ,who are not the respondent, engaged in the reported misconduct, if relevant); or (3) character of the parties. While previous conduct violations by the respondent are not generally admissible as information about the present allegation, investigators may supply the hearing panel with information about previous findings to consider as possible evidence of pattern and/or predatory conduct. There will be no observers of the hearing and no more than one advisor per party at the hearing. If a party has need for a supplemental advisor related to a disability or language translation, it may be allowed based on a review of documentation. The need for a support advisor related to a disability or language translation must be arranged prior to the hearing with the Title IX coordinator (or designee).
        • The hearing will be recorded only by the Title IX coordinator (or designee) and only for potential use in appeals. There are to be no other recordings by the parties or anyone else. If there is an appeal, the recording may be reviewed by the parties and their advisors in a controlled setting to be determined by the Title IX coordinator (or designee). No copies of the recording will be provided.
        • Deliberations will occur with only the hearing panel and the Title IX coordinator (or designee) present. The Title IX coordinator (or designee) is only present to clarify questions. The hearing panel will make the final decision. Deliberations are not recorded.
        • Simultaneous written notice to the parties describing hearing findings, including determination of responsibility and sanctions and available appeal procedures, will occur within five business days of the hearing. Any delay within the notification of findings and sanctions will be communicated to the parties simultaneously.

    • All ATSU employees who are not named as respondents must cooperate fully with any investigations and hearings.

      • Exception - Employees acting under a professional license, which provides privilege (i.e., behavioral health & wellness counselors)
      • Employees who have a professional license, which provides privilege, but are not acting under that license, do not have privilege (i.e., a healthcare provider serving in a professor role).
      • Academic information protected under the Family Educational Rights and Privacy Act (FERPA) is available to investigations as legitimate educational interest.
    • Complainant, respondent, and appropriate officials will be given timely and equal access to information to be used during informal and formal disciplinary meetings and hearings.
    • Complainants and respondents are able to gather their own evidence and may discuss the allegations in the process of gathering evidence.

General Discrimination Prohibited Conduct and Grievance Process

This process applies to all University employees and students in their dealings with each other and to all University employees and students in their dealings with third parties. Patient complaints related to discrimination or harassment will be addressed under ATSU Policy No. 30-103: Patient Complaints. If through this process, any University employee or student is found in violation of this policy, then s/he will be subject to corrective action up to and including termination or dismissal. University employees or students may be disciplined, up to and including termination or dismissal, for engaging in behavior disrespectful, disruptive, or otherwise prohibited by this policy, regardless of whether such behavior constitutes harassment prohibited by law.

• General discrimination prohibited conduct
  • Prohibited conduct includes unwelcome conduct, whether verbal, non-verbal, physical, or visual, that is based on or relates to an individual’s race, color, religion, ethnicity, national origin, sexual orientation, age, disability, veteran status, or any other status protected by applicable law, and has the effect of creating a hostile environment which:
    • Has the effect of unreasonably interfering with an individual’s work or student’s performance.
    • Has the effect of otherwise adversely affects an individual’s employment or educational opportunities.
  • A hostile environment is any situation in which there is harassing conduct sufficiently severe, pervasive, or objectively offensive to alter the conditions of employment or limit, interfere with, or deny educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (a reasonable person’s standard) viewpoint.

  • Determination of whether an environment is “hostile” will be based upon circumstances, including:

    • Conduct frequency;
    • Conduct’s nature and severity;
    • Whether conduct was physically threatening;
    • Whether conduct was humiliating;
    • Effect of conduct on the alleged victim’s mental or emotional state;
    • Whether conduct was directed at more than one person;
    • Whether conduct arose in the context of other discriminatory conduct;
    • Whether conduct unreasonably interfered with the alleged victim’s educational or work performance;
    • Whether the statement is an utterance of an epithet, which engenders offense in an employee or student, or offends by mere discourtesy or rudeness;
    • Whether the speech or conduct deserves the protections of academic freedom or the First Amendment of the U.S. Constitution.
    • Examples of prohibited conduct include, but are not limited to, jokes, epithets, slurs, insults, negative stereotyping, written or graphic material (including emails), or any threatening or intimidating acts denigrating or showing hostility toward an individual and relate to race, color, religion, ethnicity, national origin, sexual orientation, age, disability, veteran status, or any other status protected by applicable law.
  • Examples of prohibited conduct include, but are not limited to, jokes, epithets, slurs, insults, negative stereotyping, written or graphic material (including emails), or any threatening or intimidating acts denigrating or showing hostility toward an individual and relate to race, color, religion, ethnicity, national origin, sexual orientation, age, disability, veteran status, or any other status protected by applicable law.

• Discrimination, harassment, and retaliation grievance procedures

  • Any individual who feels s/he has have witnessed or experienced behavior prohibited by this policy or who has questions, concerns, or information regarding violations of this policy must immediately report the circumstance(s) or incident(s) to his/her supervisor or one of the contact persons described within this policy.
  • Upon receipt of a discrimination, harassment, or retaliation report, the University will conduct a prompt, thorough, and impartial review, evaluating all relevant information and documentation relating to the report
    • If a report is made, ATSU’s Title IX coordinator (or designee) will review the report in an initial meeting with the reporting party. Objectives of this initial meeting will be to reduce the report to writing, stop the harassment, prevent its recurrence, and take steps to remedy its effects in the interim.
    • If, following the initial review of the complaint, it is determined no potential policy violations exist, the Title IX coordinator (or designee) will produce a report stating such conclusion, including all elements of the initial meeting and interim remedial steps taken.
    • Interim remedial steps may include academic or work adjustments, no contact orders, temporary suspension of the responding party, or any other reasonable measure to facilitate the end and prevention of harassment or discrimination.
    • If, after an initial meeting between ATSU ‘s Title IX coordinator (or designee) and a reporting party, it is determined any part of this policy may have been violated, a full investigation will be conducted. Investigators from GERT will be assigned. Investigators will be appropriately trained and will not have a conflict of interest or bias against the reporting or responding party. In some instances, an outside party may be contracted to complete some or all of the roles in the grievance process.
    • Parties will be regularly updated as to projected timeline for completion of investigation. During the process, the reporting party and responding party will have equal opportunity to present witnesses and provide evidence. Reporting party, responding party, and appropriate officials will be given timely and equal access to information to be used during informal and formal disciplinary meetings and hearings.
    • All ATSU employees, who are not named as responding parties, must cooperate fully with any investigations.
      • Exception - Employees acting under a professional license which provides privilege (i.e., behavioral health & wellness counselors).
      • Employees who have a professional license, which provides privilege, but are not acting under that license, do not have privilege (i.e., a healthcare provider serving in a professor role).
      • Academic information protected under FERPA is available to investigations as legitimate educational interest.
    • Investigators use “preponderance of evidence” standard when determining whether or not there is a violation.

Sanctions

• Sanctions are determined by the hearing panel (within the Title IX Grievance Process) or recommended by the investigators (within the General Discrimination Grievance Process).
• Sanctions for student violations of ATSU Policy No. 90-210 may include, but are not limited to a reprimand, disciplinary warning to be added to the student’s permanent file, educational sanctions, required counseling, limitations in activities, probation, suspension, dismissal, revocation of diploma, student organizational sanctions, and other context appropriate sanctions.
• Sanctions for employee violations of ATSU Policy No. 90-210 may include, but are not limited to, disciplinary warning to be added to the employee’s permanent file, performance management improvement process, required counseling, probation, additional training, suspension with or without pay, loss of annual pay increase, loss of oversight or supervisory responsibility, demotion, dismissal, and other context appropriate sanctions.
• ATSU community members who share employee and student status may be sanctioned under either or both status.
• Sanctioning is guided by the ATSU Policy No. 90-210 sanctioning guide.

Appeals

• Parties will have the right to appeal within five business days of receiving the findings and sanctions or the report’s dismissal. If the appeal is not timely or substantively eligible, the original decision will stand, and the decision will be final. The party requesting the appeal must show error as the original findings and sanctions are presumed to have been decided reasonably and appropriately. The only grounds for appeal are:
  • A procedural irregularity affecting the outcome of matter.
  • To consider new evidence, unavailable during the original hearing or investigation, which could substantially impact the decision in the matter. A summary of this new evidence and its potential impact must be included.
  • Investigators or hearing panel members had a conflict of interest or bias affecting the outcome of the matter.
• Parties will be provided the evidence which is relevant or directly related to the finding in an electronic format. The evidence is not to be printed or transferred to other parties. The parties may request their advisor receive access to the evidence as well.
• Appeals must be submitted for review to the Title IX coordinator (or designee) to determine standing. Appeals with standing will be forwarded to a panel of trained GERT member(s) or third party consultant(s).
• If an appeal is determined to have standing, the other party will have the opportunity to review the appeal and provide a written response within three business days. If some or all of an appeal is determined to not have standing, the appealing party will receive notice and explanation. A decision to deny an appeal because of a lack of standing is not appealable.

• Upon receipt of a written appeal, an appellate panel consisting of up to three GERT members (or outside consultant(s)) will be selected to rule on the appeal.

  • 1. Appeals decisions are to be deferential to the original hearing body, making changes to the finding only where there is clear error and to the sanction only if there is a compelling justification to do so. An appeal is not an opportunity for appeals officers to substitute their judgment for that of the original hearing body merely because they disagree with the finding and/or sanctions.
  • 2. Any sanctions, excluding termination, employment transfer, or expulsion, imposed at the conclusion of an investigation will remain in effect during the appeals process. Termination, employment transfer, expulsion, or dismissal will be treated as a suspension from the conclusion of the application of sanctions to the conclusion of the appeal process. If employment termination, employment transfer, or expulsion are upheld in the appeal process, such sanction will be instituted immediately at the conclusion of the appeal.
  • 3. The appellate panel will rule on the appeal within 15 business days. Any extension of time beyond 15 business days will be communicated to both parties along with an updated timeframe for the ruling. If an appeal is granted, direction will be provided by the appellate panel regarding next steps. Appellate panel may:
    • Remand case to the original hearing panel.
    • Remand case to a new hearing panel.
    • Remand case back to the original investigators.
    • Remand case to a new set of investigators.
    • Make no change to the decision or sanction.

Anti-retaliation

• The University will not retaliate against, nor permit retaliation against, any individual who opposes discrimination or harassment, makes a complaint of discrimination or harassment, and/or participates or cooperates in a discrimination or harassment investigation, proceeding, or hearing.
• Examples of retaliation:
  • After a whistleblowing incident, an employee may suddenly find him/herself being assigned to different duties or even moved into a different position. The new role often involves duties below the employee’s capabilities or even demeaning in nature. Supervisor may make the new role as difficult as possible by harshly critiquing results or implementing unreasonable time constraints for completing projects. Supervisor may also limit access to resources the employee needs to complete his/her assigned tasks.
  • Employers may retaliate by excluding the employee from normal activities, attempting to create a sense of isolation. Supervisor may refuse to invite the employee to an important meeting or a social activity, such as a group luncheon or outing. Supervisor may also exclude the employee from training sessions that could enhance the employee’s job performance or opportunity for advancement. Exclusion may occur by relocating the employee to an area where there is little contact with other workers.

Amnesty

• Amnesty for drug/alcohol possession and consumption violations
  • ATSU strongly encourages students and employees to report potential violations of this policy. Therefore, good faith reporters to appropriate authorities regarding potential violations will not face University disciplinary action for their own drug/alcohol possession or consumption in connection with the reported incident.
  • Amnesty for persons making a report in good faith does not include substance abuse counseling and/or rehabilitation, which may be necessary for employees or students with clinical responsibilities or patient contact.

Free speech and academic freedom

• Faculty and other academic appointees, staff, and students of the University enjoy significant free speech protections guaranteed by the First Amendment of the U.S. Constitution.
• This policy is intended to protect members of the University community from discrimination, not to regulate protected speech.
• This policy will be implemented in a manner recognizing the importance of rights to freedom of speech and expression.
• The University also has a compelling interest in free inquiry and collective search for knowledge, and thus, recognizes principles of academic freedom as a special area of protected speech.
• Consistent with these principles, no provision of this policy will be interpreted to prohibit conduct legitimately related to course content, teaching methods, scholarship, or public commentary of an individual faculty member or the educational, political, artistic, or literary expression of students in classrooms and public forums.
• Freedom of speech and academic freedom are not limitless and do not protect speech or expressive conduct violating federal or state antidiscrimination laws.

Record retention

• ATSU will maintain copies of the following documents/records relating to this policy in accordance with ATSU’s record retention schedule.
  • Each sexual harassment investigation report and evidence gathered;
  • Final determination letters and disciplinary sanctions imposed upon respondent;
  • Audio or audiovisual recordings or transcript of live hearings;
  • Remedies provided to complainant in order to restore or preserve equal access to education programs or activities;
  • Any appeal and the result therefrom;
  • Informal resolution agreements;
  • Supportive measures offered in response to a report or formal complaint of sexual harassment;
  • Written basis explaining ATSU was not deliberately indifferent in its response to reports for formal complaints of sexual harassment, which is often a conclusion of the investigation report and hearing panel report;
  • ATSU will retain all materials used to train Title IX coordinators, investigators, and any person who facilitates an informal resolution process.
  • Documentation for reasons why supportive measures were not provided and why it was reasonable in light of known circumstances.

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  Responsibility

  • All ATSU employees - Employees are required to report instances of discrimination, harassment, or retaliation to the Title IX coordinator or deputy Title IX coordinators and cooperate fully in an investigation when not named as a respondent.
  • All ATSU employees and students –
    • Employees and students are required to comply with the requests of the Title IX coordinator (or designee) in implementing supportive or interim measures and sanctions.
    • Employees and students who are not named as responding parties must cooperate fully with investigations and hearing panels.
  • Title IX coordinator – Responding to and monitoring all complaints of discrimination, harassment, or retaliation from students, employees, members of the public, or beneficiaries is the responsibility of the Title IX coordinator or their designee.
  • This employee is responsible for facilitating appropriate sex- and gender-based harassment and discrimination awareness, prevention, training, monitoring, reporting, investigation, and resolution at ATSU.