EIU Office of Internal Auditing

#175.2 - Sexual Harassment Complaint Policy & Title IX Sexual Harassment Complaint Procedure

Approved: September 29, 2020

Nomenclature changes: September 1, 2021

Monitor: President

Any member of the university community who believes he/she/they has either been the victim of sexual harassment including sexual misconduct or who has witnessed such behavior is encouraged to file a complaint with the university. In addition, sexual assault survivors are encouraged to file a criminal complaint with the University Police Department or local law enforcement.

The Title IX Coordinator is the senior university administrator who oversees the university's compliance with Title IX. The Title IX Coordinator is available to discuss the process, explain university policies and procedures, and provide education on relevant issues. Any member in the university may contact the Title IX Coordinator or the Deputy Title IX Coordinator with questions.

No retaliation may be taken against any employee or student of the university who seeks redress under this policy. Retaliatory action will be regarded as a separate and distinct cause of complaint. Any person who interferes with the policy and its procedures is subject to disciplinary action up to an including dismissal or separation from the university. Interference in the policy and process includes:

• Attempting to coerce, compel, or prevent an individual from providing testimony or relevant information;
• Removing, destroying or altering documentation relevant to the complaint;
• Knowingly withholding, providing false, or misleading information to either the Title IX Coordinator or Deputy Title IX Coordinator, investigator, Hearing Panel, or encouraging others to do so.
• Communications between any panel member and claimant or respondent outside of the hearing process.

The university will not, as a matter of course, wait for the outcome of a concurrent criminal or civil justice proceeding to take action on a complaint in under IGP #175. On a case-by-case basis, the university may exercise discretion and delay an investigation for a brief period due to a concurrent criminal or civil justice proceeding.

Complaints will be investigated by neutral and impartial fact-finders who will gather evidence during the investigation. These investigators are responsible for completing an investigation report.

Throughout the process, the parties are allowed to have Advisors. Parties are required to notify the appropriate office in writing of the name and contact information of his/her/their advisor as soon as practical. Once notified, the advisor will receive copies of any notices provided to their individual, access to evidence and a copy of the investigative report.

A Hearing Panel is comprised of three individuals and is responsible for conducting a hearing in an orderly manner, controlling the conduct of all participants and attendees of the hearing, and rendering a written determination regarding responsibility of the Respondent's alleged conduct charges in an impartial, neutral, and objective manner.

Sexual harassment complaints should be directed to the appropriate office:

• Office of Civil Rights & Diversity/Title IX Coordinator (if an employee, vendor, student teaching supervisor, internship supervisor, or visitor is alleged to have committed the sexual harassment) (217) 581-5020, 1011 Old Main, civil@eiu.edu; or,
• Office of Student Accountability & Support/Deputy Title IX Coordinator (if a student is alleged to have committed the sexual harassment) (217) 581-3827, Room 1515 in the Martin Luther King University Union Building.

Additionally, reporting may be made at https://www.eiu.edu/judicial/.

For instances in which a student is also an employee, the alleged facts of the circumstances will control which office will have authority to hear the claim. Stated differently, if the alleged acts occurred during a student's performance of his/her/their job duties, then the Office of Civil Rights & Diversity/Title IX Coordinator will oversee the complaint process.

PROCESS

1. Upon receipt of a written complaint of sexual harassment, the Complainant may request, and the university will provide, a prompt and timely resolution process under the appropriate procedures. The Complainant may also request an interim measure and/or reasonable accommodation pending the resolution of the complaint.
2. The Complainant and Respondent (individual(s) for whom the Complainant alleges committed sexual harassment) shall be notified which panel or vice president has authority to implement sanctions, and either party may request a substitution in the event of an actual conflict of interest. Actual conflicts of interest will be determined by the university's Ethics Officer.
3. Each office shall use a preponderance of the evidence standard to determine whether a violation has occurred.
4. To the extent possible, the complaint resolution process will be conducted in a manner that protects the privacy of participating parties and witnesses.
5. Complaint procedures vary depending on whether the allegations of the sexual harassment meet the requirements of a Title IX sexual harassment claim or other federal and state laws. IGP #175 provides definitions of the federal and state laws pertaining to sexual harassment.
1. Non-Title IX sexual harassment claims will follow either the procedures identified in IGP #173 (employee is alleged to have committed the sexual harassment) or the Student Conduct Code (student is alleged to have committed the sexual harassment).
2. Title IX sexual harassment claims will follow the following procedure:
1. Complainant must sign a formal Complaint stating the description of the alleged conduct or event, its location, and names of any witnesses and submit the Complaint to the appropriate office. Alternatively, the Title IX Coordinator may begin a complaint against a Respondent and initiate the process.
2. The Title IX Coordinator (for employee Respondents) or Deputy Title IX Coordinator (for student Respondents) will determine if the claim can move forward under the federal Title IX claim. See IGP #175. If a complaint is dismissed under the Title IX procedure, the parties will receive a written notification. In such an instance, the university may move forward with its non-federal Title IX process (see IGP #173 or the Student Code of Conduct).
1. The Title IX Coordinator or Deputy Title IX Coordinator may dismiss a complaint, at his/her discretion, for the following reasons:
• The Respondent is no longer employed or enrolled on campus;
• The Complainant requests in writing to dismiss the complaint;
• Any specific circumstances that prevent the university from gathering evidence sufficient to reach a determination as to the complaint or any allegation therein; or
• The conduct alleged does not meet met the definition of prohibited conduct or jurisdictional requirements under the Sexual Harassment Policy for a Title IX claim (IGP # 175).
3. If a complaint is accepted, the appropriate office will provide a written notice to the parties for the complaint including available resources and assistance. The notice will include:
• Notice of the process as outlined in this Policy;
• Notice of the allegations that potentially constituted prohibited conduct under this Policy, including sufficient details about the alleged conduct, including the identity of the parties, if known, and the date(s), time(s), and location(s) of the alleged conduct and known by the university at the time of complaint;
• A statement of the potential policy violation(s) being investigated;
• A statement that the Respondent is presumed not responsible for the alleged conduct and that the determination regarding responsibility will be made at the conclusion of the process
• Both parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review all evidence;
• A statement that the parties may review evidence gathered as part of any investigation;
• Provision of this policy that knowingly making false statements or knowingly submitting false information during the process is prohibited and subject to disciplinary action; and,
• Any other relevant information for the written notice.
4. After the parties have been provided a copy of the written notice of the complaint, both parties may, in writing, voluntarily agree to use an informal resolution option, if applicable, at any point prior to reaching a determination regarding the responsibility, but the parties are not required to do so. Informal resolution entails the parties forgoing the formal process described below and can include mediation (by which the parties mutually agree to a resolution). Informal resolutions are at the discretion of the Title IX Coordinator/Deputy Title IX Coordinator and not subject to appeal.
5. After receiving a notice of complaint, Respondent will be allowed a reasonable time to respond in writing and through an interview with an investigator.
6. The university will provide notice to a party whose participation is invited or expected of the date, time, location, participants, and purpose of all meetings, investigative interviews, or other proceedings of the process.
   
   Evidence. The parties in the investigation may present any information and evidence that may be relevant to the complaint and may have an advisor of their choice attend any related interview, meeting or proceeding in the process. Advisors are not permitted to actively participate in any meetings or proceeding unless explicitly outlined in 5.b.viii of this policy. The parties may present names of any fact or expert witnesses who may provide relevant information, and how the witnesses may be relevant to the complaint. The parties may submit to the investigator any questions they would like asked of any known potential witnesses or parties.
   
   Witness interviews. The investigator will interview relevant and available witnesses. Neither the Complainant nor the Respondent will normally attend these interviews; however, if either one is permitted to attend, the other shall have the same right.
   
   Investigation timeframe. An investigation of a complaint will generally be concluded within 90 days of the filing of a complaint. The parties will be provided updates on the progress of the investigation as appropriate.
   
   Access to evidence. Prior to the completion of the investigation report, the investigator will provide access to all evidence obtained (whether relevant or not) as part of the investigation to both parties (and the party's advisor, if any, upon a party's signed information release for their advisor of choice). Both parties will have 10 calendar days to inspect, review and respond to the evidence. All responses to the evidence must be submitted by the party in writing to the investigator. Advisors are not permitted to submit written responses to the evidence on their own or on behalf of the party they are advising. The investigators will consider all timely responses submitted by the parties.
   
   Completed investigative report. The completed investigation report will outline each of the allegations that potentially constitutes prohibited conduct under this policy, provide the timeline (e.g. procedural steps) of the investigation, and fairly summarize relevant evidence, participant statements, and responses to questions. The investigator will provide a completed investigative report concurrently to both parties and each party's advisor, if any, upon a party's signed information release for their advisor of choice at least ten (10) calendar days prior to the date of the scheduled hearing to review and provide a written response at the hearing. A copy of the completed investigation report will be issued to the Title IX Coordinator/Deputy Title IX Coordinator, and to the Hearing Panel members assigned for the hearing. The investigation report will be marked "CONFIDENTIAL." The parties will be advised that sharing the report with someone other than their advisor may constitute a violation of university policy with possible disciplinary action.
7. The preponderance of the evidence standard will be used and the Respondent is presumed to not be responsible for the alleged conduct unless a different determination is reached at the conclusion of the hearing process.
8. Absent a dismissal or the parties' decision to reach an informal resolution, the university will provide a live hearing for all complaints as outlined in this policy.
   
   Written Notice. Efforts will be made to minimize disruption to student class schedules in scheduling a hearing. The parties (and, if identified their advisors) will receive written notice of the hearing date at least ten (10) calendar days prior to the hearing date. This notice also includes time, location, names of all participants of the hearing (including the Hearing Panel members and participants in the investigation report), purpose of the hearing, a statement of the alleged conduct charges, and a summary statement of the evidence gathered.
   
   Challenges to the Hearing Panel Members. Either party may challenge the fairness, impartiality or objectivity of Hearing Panel members. The challenge must be submitted in writing to the hearing officer (Title IX Coordinator or Deputy Title IX Coordinator) through the office coordinating the hearing within four (4) calendar days after notice of the identity of the Hearing Panel members is provided, and must state the reasons for the challenge. Each Hearing Panel member will be the sole judge of whether he/she/they can serve with fairness, impartiality, and objectivity. In the event that a Hearing Panel member recuses themselves, an alternate Hearing Panel member will be assigned in accordance with these procedures.
   
   Hearing Panel Members Duties During a Hearing. Hearing Panel members will rule on all procedural matters and on objections regarding exhibits and testimony of participants at the hearing, may question participants who testify at the hearing, and are entitled to have the advice and assistance of legal counsel from the Office of General Counsel. A majority vote of the panel constitutes the panel's acceptance. Either the Title IX Coordinator or Deputy Title IX Coordinator will facilitate the hearing process in assistance to the hearing panel's ability to maintain orderliness and hearing protocols.
   
   Access to Evidence. Each party will have access to all of the evidence from the investigation, including a copy of the completed investigation report, as outlined in 5.b.vi of this policy.
   
   Separate Rooms and Virtual Participation. At the request of either party, the university will provide the hearing to occur with the parties located in separate rooms with technology enabling the Hearing Panel and the parties to simultaneously see and hear the participants answering questions. Participants may appear at the hearing virtually, and are not required to be physically present at the same physical location in the hearing.
   
   Each party may make opening and closing statements.
   
   Privileged information is excluded. No person will be required to disclose information protected under a legally recognized privilege. The Hearing Panel must not allow into evidence or rely upon any questions or evidence that may require to seek disclosure of such information, unless the person holding the privilege has waived the privilege. This includes information protected by the attorney-client privilege.
   
   Advisor of Choice. Each party may have an advisor of their choice at the hearing. If a party does not have an advisor, the university will provide one. Advisors are not permitted to actively participate in the hearing, except for asking questions of the other party and any other witnesses. In addition, witnesses may have an advisor of their choice at the hearing.
   
   Questioning of the Participants in the Hearing. The Hearing Panel may, at its discretion, ask questions during the hearing of any party or witness and may be the first person to ask such questions. Each party's advisor will have an opportunity to ask relevant questions and follow-up questions of the other party and of any witnesses that participate in the hearing, including questions that challenge credibility. Each advisor has the ability to ask questions directly, orally, and in real time at the hearing. The parties will not be permitted to personally ask questions of the other party or any witnesses that participate in the hearing. The advisors may ask questions under the following procedure:
   
   
   1. The advisor will ask a question of the applicable participant.
   2. Before the participant answers the question, the Hearing Panel will determine whether the advisor's question is relevant to the alleged conduct charges.
   3. If the Hearing Panel rules the advisor's question as not relevant, then the Hearing Panel must explain any decision to exclude a question as not relevant. If the Hearing Panel allows the question as relevant, the participant will answer it.
   
   Prior Sexual History. A Complainant's sexual predisposition or prior sexual behavior are not relevant except where questions and evidence about a Complainant's prior sexual behavior are offered to prove that someone other than Respondent committed the alleged conduct charged by the Complainant or if the questions or evidence concern specific incidents of the Complainant's prior sexual behavior with the Respondent and are offered to prove that Complainant's consent of the alleged conduct.
   
   Possible sanctions and remedies for student Respondents. Possible sanctions and remedies include, but are not limited to, educational training, no contact order, disciplinary probation, tabled suspension (similar to probation but with immediate suspension to occur if prohibited activities occur), suspension from all rights and privileges of enrollment for a period of time (indicated on transcript until all conditions of the suspension are met), expulsion (permanent separation from the university) and any other sanction(s) or remedies as deemed appropriate under the circumstances. Any suspension and expulsion will also include a ban from campus.
   
   Possible sanctions and remedies for employee Respondents. If disciplinary action is proposed as a result of a finding of sexual harassment, procedures required under relevant collective bargaining agreements, Board of Trustees Regulations, or the State Universities Civil Service Statute and Rules will apply.
   
   Hearing Panel determinations. The Hearing Panel will issue a written determination, which must include the following:
   
   
   • The allegations that potentially constitute prohibited conduct under this policy;
   • A description of all of the procedural steps of the process under this policy;
   • The findings of fact supporting the Hearing Panel's determination;
   • The conclusion(s) and a rationale as to whether the Respondent is responsible for each allegation;
   • The disciplinary sanction, if applicable;
   • The remedies, if applicable, designed to restore the Complainant's access to the education program or activity; and,
   • The university's procedures and permissible basis for the parties to appeal, if applicable.
   
   Such written determination letter will be sent concurrently to the parties, in addition to the Vice President of Student Affairs (for students) or appropriate Vice President (for employee Respondents) and either Title IX Coordinator (for employee Respondents) or the Deputy Title IX Coordinator (for student Respondents).
9. The hearing will be recorded in audio or audiovisual format and may be transcribed at the discretion of the university. Any recording or transcript, if applicable, will be available to the parties to inspect and review, upon a timely request.
10. Either party or the Title IX Coordinator (or Deputy Title IX Coordinator) may appeal the Hearing Panel's determination, regarding Respondent's responsibility under the policy or from the university's dismissal of the complaint within seven (7) calendar days of notification of such a determination, on the following basis:
    • A procedural irregularity that affected the outcome of the matter;
    • There is new evidence that was not reasonably available at the time of the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; or,
    • A member of the Hearing Panel had a conflict of interest or bias for or against the parties that affected the outcome of the matter.
    
    Appeals should be sent to the Vice President of Student Affairs (for students Respondents) or President (for employee Respondents) with copies provided to the other party and respective Title IX Coordinator.
    
    Any non-appealing party will have seven (7) days from the notification of the appeal to submit a written statement in support of the outcome.
    
    The decision maker of the appeal will release a final, written decision within twenty-one (21) days from the date of the appeal:
    • Affirming the Hearing Panel's determination and disciplinary sanctions and remedies, if applicable;
    • Affirming the Hearing Panel's determination regarding responsibility and amend the disciplinary sanctions and remedies, if applicable;
    • Remand the process back to the Hearing Panel for the Hearing Panel to remedy any procedural irregularity or consider any new evidence; or,
    • Reverse the Hearing Panel's determination of responsibility and amend the disciplinary sanctions and remedies, if applicable.
    Such decisions are not subject to further appeal.

TRAINING REQUIREMENTS

Professional staff members in the Office of Civil Rights & Diversity, the Office of Student Accountability & Support, members of the University Police Department, and others who are involved with sexual harassment complaint resolution must complete annual training on issues related to sexual violence, domestic violence, dating violence, stalking and complaint resolution.