Designation of Title IX Coordinator and Dissemination of Policy

§ 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance procedures requires:

• The University “to designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under this part, which employee must be referred to as the “Title IX Coordinator.”
• The University to publish the name or title, office address, electronic mail address, and telephone number of the Title IX Coordinator.
• The University to all a report of sex discrimination, including sexual harassment, to be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.
• The University must prominently display the contact information for the Title IX Coordinator.

HRM-041: University’s Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence (HRM-041) designates a Title IX Coordinator and Deputy Title IX Coordinator:

• Emily Babb, Assistant Vice President for Title IX Compliance/Title IX Coordinator

O’Neil Hall, Room 037A

P.O. Box 400211

Charlottesville, VA 22904

(434) 297-7643

[email protected] or [email protected]

• Akia Haynes, Deputy Title IX Coordinator

O’Neil Hall, Room 037A

P.O. Box 400211

Charlottesville, VA 22904

(434) 297-7988

[email protected]

Contact information for the Title IX Coordinator and Deputy Title IX Coordinator are prominently displayed in HRM-041, the Notice of Non-Discrimination and Equal Opportunity Statement, the University Record, the Parent Handbook, the Annual Safety and Security Report, and other University publications.

Reports of sex discrimination, including sexual harassment, can be made directly to the Title IX Coordinator using the contact information above or through the University’s online reporting system, Just Report It, at any time, including non-business hours.

Definitions

§ 106.30 defines Actual Knowledge as notice of sexual harassment or allegations of sexual harassment to a University’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient….Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge.

HRM-041 does not define “Actual Knowledge;” however, the HRM-040: Reporting by University Employees of Disclosures Relating to Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence (“HRM-040”) defines who is classified by the University as a “Responsible Employee” and required to report certain conduct to the Title IX Coordinator.

§ 106.30 defines Complainant as an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

“Complainant” refers to the Student, Employee, or Third Party who presents as a victim of any Prohibited Conduct under HRM-041, regardless of whether that person makes a report or seeks action under HRM-041.

§ 106.30 does not define Consent and the Regulations do not require Universities to adopt a particular definition of consent with respect to sexual assault.

“Affirmative Consent” is defined in HRM-041 as Informed (knowing), voluntary (freely given), and active (not passive), meaning that through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed upon sexual activity.

§ 106.30 defines Formal complaint as a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the University investigate the allegation of sexual harassment.

• At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the education program or activity of the University with which the formal complaint is filed.
• A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail.
• “Document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the University) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

HRM-041 does not have a requirement for a “Formal Complaint.” Reports may be made directly to the Title IX Coordinator (by mail, by telephone, or by email), through Just Report It, or to University law enforcement. Such reports obligate the University to respond as outlined in the Procedures for Reports Against Students (“Student Procedures”) or Procedures for Reports Against Employees (“Employee Procedures”); however, a complainant may communicate preferences regarding University action, such as requesting no University action, Formal Resolution, or Alternative Resolution. The University seeks to honor such preferences whenever possible.

§ 106.30 defines Respondent as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

“Respondent” refers to the Student, Employee, or Third Party who has been accused of violating HRM-041.

§ 106.30 defines Sexual Harassment as conduct on the basis of sex that satisfies one or more of the following:

1. An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or
3. “Sexual Assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v),[1] “dating violence” as defined in 34 U.S. 12291(a)(10),[2] “domestic violence” as defined in 34 U.S.C. 12291(a)(8),[3] or “stalking” as defined in 34 U.S.C. 12291(a)(30).[4]

HRM-041 defines “Sexual Harassment” as:

Any unwelcome sexual advance, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when

(1) Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment); or

(2) Such conduct creates a hostile environment. A “hostile environment” exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the University’s education or employment programs and/or activities. Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances, including, but not limited to: the frequency, nature and severity of the conduct; whether the conduct was physically threatening; the effect of the conduct on the Complainant’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 Complainant’s educational or work performance and/or University programs or activities; and whether the conduct implicates concerns related to academic freedom or protected speech. A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of Sexual Assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.

HRM-041 defines “Sexual Assault” as: (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Affirmative Consent. Sexual Contact is: any intentional sexual touching, however slight with any object or body part (as described below) performed by a person upon another person. Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and (b) making another touch you or themselves with or on any of these body parts. Sexual Intercourse is: any penetration, however slight with any object or body part (as described below) performed by a person upon another person. Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.

Affirmative Consent is informed (knowing), voluntary (freely given), active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity

HRM-041 defines “Intimate Partner Violence” as: any act of violence or threatened act of violence that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, domestic, or other intimate relationship. Intimate Partner Violence may include any form of Prohibited Conduct under this policy, including Sexual Assault, Stalking, and Physical Assault (as defined below). Physical Assault is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person. Physical Assault will be addressed under this policy if it involves Sexual or Gender-Based Harassment, Intimate Partner Violence, or is part of a course of conduct under the Stalking definition. Intimate Partner Violence includes “dating violence” and “domestic violence,” as defined by VAWA. Consistent with VAWA, the University will evaluate the existence of an intimate relationship based upon the Complainant’s statement and taking into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. This definition is consistent with VAWA.

HRM-041 defines “Stalking” as: when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress. Course of conduct means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property.  Substantial emotional distress means significant mental suffering or anguish. Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.[5]

§ 106.30 defines Supportive measures as non-disciplinary, non-punitive individualized serves offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

Procedures for Reports Against Students, Appendix A (Student Procedures) and Procedures for Reports Against Employees, Appendix B (Employee Procedures) provide that complainants are entitled to a broad range of support and remedial measures regardless of whether they choose to pursue criminal and/or University disciplinary resolution.

In addition, the University’s Resource and Reporting Guide for Students (Student Guide) and Resource and Reporting Guide for Employees (Employee Guide) outline the University support, which includes a broad range of remedial and protective measures, which apply to both complainants and respondents. Protective and remedial measures may be temporary or permanent and include: imposition of a No Contact Directive, arranging a meeting with Police to discuss reporting or safety planning, access to counseling services, access to medical services, assistance in seeking academic assistance (including modified class schedules, permission to withdraw from and/or retake a class, attend a class via alternative means, extensions of assignment deadlines, and voluntary leaves of absence), assistance in modifying University housing arrangements, assistance in modifying assigned parking, assistance in modifying University employment arrangements, and any other measures.

University’s Response to Sexual Harassment

§ 106.44 Recipient’s response to sexual harassment provides that a University with actual knowledge of sexual harassment in an education program or activity of the University against a person in the United States must respond promptly in a manner that is not deliberately indifferent.

• “Education program or activity” includes locations, events, or circumstances over which the University exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a University.

HRM-041 applies to acts of Prohibited Conduct committed by or against Students, Employees, and Third Parties when:

1. The conduct occurs on University Grounds or other property owned by or controlled by the University;
2. The conduct occurs in the context of a University employment or education program or activity, including but not limited to University-sponsored study abroad, research, on-line, or internship programs; or
3. The conduct occurs outside the context of a University employment or education program or activity, but has continuing adverse effects on or creates a hostile environment for Students, Employees, or Third Parties while on University Grounds or other property owned or controlled by the University or in any University employment or education program or activity.

HRM-041 does not define “program or activity.”

§ 106.44(a) requires the Title IX Coordinator to promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without filing a formal complaint, and explain to the complainant the process for filing a formal complaint.

The Student Procedures and Employee Procedures provide that the Title IX Coordinator will make an initial assessment of the reported information and inform the complainant of certain information (e.g., right to seek medical treatment, importance of obtaining and preserving forensic evidence, right to contact law enforcement, decline to contact law enforcement, seek a protective order, right to seek appropriate and available remedial and protective measures, right to seek Alternative Resolution, Formal Resolution, or neither, etc.)

Currently, this communication comes from the Dean on Call in the Office of the Dean of Students for student reports and from the Title IX Coordinator or Deputy Title IX Coordinator for employee and third party reports.

§ 106.44(c) Emergency Removal provides that a University may remove a respondent from the University’s education program or activity on an emergency basis provided that the University undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations justifies removal, and provides respondent with notice and an opportunity to challenge the decision immediately following the removal.

The University’s Evaluation Panel, a group comprised of representatives from Student Affairs, Title IX, and the University Police Department reviews every report made pursuant to HRM-041 to determine whether the reported information and any other available information provides a rational basis for concluding that there is a threat to the health or safety of the complainant or any other member of the University community and provides risk factors to consider, which includes:

• Whether the Respondent has prior arrests, prior reports or complaints, or any history of violent behavior
• Whether respondent has a history of failing to comply a University No Contact Directive, other protective measures, or any judicial protective order
• Whether the respondent has threatened to commit violence or any form of Prohibited Conduct
• Whether the Prohibited Conduct involved multiple respondents
• Whether the Prohibited Conduct involved physical violence
• Whether the report reveals a pattern of Prohibited Conduct
• Whether the Prohibited Conduct was facilitated through the use of a “date-rape” drug or similar intoxicants
• Whether the Prohibited Conduct occurred while the Complainant was unconscious, physically helpless or unaware
• Whether the Complainant is a minor
• Whether any other aggravating circumstances or signs of predatory behavior or present

The Title IX Coordinator considers the above factors to determine whether to impose an interim disciplinary suspension. The University Record provides that an interim disciplinary suspension may be appealed to the University Vice President for Student Affairs.[6]

Grievance Process for Formal Complaints of Sexual Harassment

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

1. Treat complainants and respondents equitable by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against respondent and by following a grievance process that complies with this section before the imposition of disciplinary sanctions or other actions that are not supportive measures. Remedies must be designed to restore or preserve equal access to the University’s education program or activity.

The Student Guide and Employee Guide provide that remedial and protective measures will be determined by the specific circumstances of each case and the University will seek to minimize the burden imposed by such measures as appropriate to the specific circumstances of each case.

The Student Procedures and Employee Procedures provide that the purpose of sanctions is to eliminate the Prohibited Conduct, prevent its recurrence, and remedy its effects, while supporting the University’s educational mission and legal obligations. The Procedures further outline considerations when determining the appropriate sanction, including:

• The severity, persistence or pervasiveness of the Prohibited Conduct;
• The nature or violence (if applicable) of the Prohibited Conduct;
• The impact of the Prohibited Conduct on the Complainant;
• The impact or implications of the Prohibited Conduct within the University community;
• Prior misconduct by the Respondent, including the Respondent’s relevant prior disciplinary history, at the University or elsewhere, and any criminal convictions;
• Whether the Respondent has accepted responsibility for the Prohibited Conduct;
• The maintenance of a safe, nondiscriminatory and respectful environment conducive to learning; and
• Any other mitigating, aggravating, or compelling factors.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

2. Require an objective evaluation of all relevant evidence – both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on the person’s status as a complainant, respondent, or witness.

The Student Procedures and Employee Procedures provide that during the investigation, the investigator notify and seek to meet separately with the complainant, respondent, and third-party witnesses and will gather all relevant and available evidence and information including, without limitation, electronic or other records of communications between the parties or witnesses (via voice-mail, text message, email, and social media sites), photographs (including those stored on computers and smartphones), and medical records (subject to the consent of the applicable party).

The Student Procedures and Employee Procedures further provide that the investigator has the discretion to determine the relevance of any proffered evidence and to include or exclude certain types of evidence. In general, the investigator will not consider statements of personal opinion, rather than direct observations or reasonable inferences from the facts, or statements as to any party’s general reputation for any character trait.

The Student Procedures and Employee Procedures do not specifically address “credibility,” although how to assess credibility is covered in investigator training.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

3. Require that any individual designated by a University as a Title IX Coordinator, decision-maker, or any person designated by a University to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.

A University must ensure that the Title IX Coordinator, decision-maker, or any person designated by a University to facilitate an informal resolution process receive training on certain items (e.g., definition of sexual harassment, scope of education program or activity, how to conduct an investigation and grievance process, etc.) and that such training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications.

The Student Procedures and Employee Procedures provide complainants and respondents an opportunity to challenge the participation by the investigator on the basis of bias or conflict of interest. The Student Procedures and Employee Procedures also provide that all persons who serve on any Review Panel must be impartial and free from actual bias or conflict of interest and an opportunity to challenge any member of the Review Panel.

The Student Procedures and Employee Procedures provide that “All investigators will receive annual training on issues related to sexual and gender-based harassment, sexual assault, dating violence, domestic violence, and stalking, and on how to conduct an investigation that is fair and impartial, provides parties with notice and a meaningful opportunity to be heard, and protects the safety of complainants and the University community while promoting accountability.”

The Student Procedures and Employee Procedures provide that the Title IX Coordinator will appoint a standing pool of trained members of the University community and external professionals with adjudicating cases of Prohibited Conduct.

Appendix C: Training, Education, and Prevention Programs (Appendix C) states that the University will offer online and in-person training to all officials charged with implementing HRM-041, including the Title IX Coordinator, Deputy Title IX Coordinator, University investigators, Review Panel members, and other employees in responding to reports of Prohibited Conduct. Training topics will include interviewing persons, policy definitions, affirmative consent and the role of alcohol and drugs, interim measures, credibility, evaluating evidence in an impartial manner, how to conduct prompt, fair, impartial, and thorough investigations and hearings, confidentiality, the effects of trauma.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

4. Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

The Student Procedures and Employee Procedures state:

Presumption of Non-Responsibility and Participation by the Parties. The investigation is a neutral fact-gathering process. The Respondent is presumed to be not responsible; this presumption may be overcome only where the Investigator and/or Review Panel conclude that there is sufficient evidence, by a Preponderance of the Evidence, to support a finding that the Respondent violated HRM-041. Neither party is required to participate in the investigation or any form of resolution under these Procedures, and the Investigator will not draw any adverse inference from a decision by either of the parties not to participate.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

5. Include reasonably prompt time frames for conclusion of the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes if the University offers informal resolution processes, and a process that allows for temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action.

The Student Procedures and Employee Procedures state:

Timeframe for Completion of Investigation; Extension for Good Cause. Typically, the period from commencement of an investigation through resolution (finding and sanction, if any) will not exceed sixty (60) calendar days.  This timeframe may be extended for good cause, which may exist if additional time is necessary to ensure the integrity and completeness of the investigation, to comply with a request by external law enforcement for temporary delay to gather evidence for a criminal investigation, to accommodate the availability of witnesses, to account for University breaks or vacations, to account for complexities of a case, including the number of witnesses and volume of information provided by the parties, or for other legitimate reasons.  The Investigator will notify the parties in writing of any extension of this timeframe and the reason for such extension.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

6. Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the University may implement following any determination of responsibility.

The Student Procedures state that the Review Panel may impose one or more sanctions, which may include the following range of sanctions:

• Expulsion: Termination of student status for any indefinite period.
• Suspension: Exclusion from classes and other privileges or activities or from the University for a definite period of time.
• Suspension held in abeyance: Exclusion from classes and other privileges or activities or from the University for a definite period of time to be enforced should another violation occur.
• Restitution:  Reimbursement for damages or misappropriation of property.
• Disciplinary Probation: Exclusion from participation in privileged or extracurricular activities for a definite period of time.
• Reprimand: A written censure for violation of the Title IX Policy (and, if applicable, the PADH policy and/or the Standards of Conduct) placed in the Student’s record, including the possibility of more severe disciplinary sanctions should another violation occur within a stated period of time.
• Warning Notice: A notice, in writing, that continuation or repetition of conduct found wrongful, within a period of time stated in the warning, may be cause for more severe disciplinary action.
• Admonition: An oral statement that the Student violated the Title IX Policy (and, if applicable, the PADH policy and/or the Standards of Conduct).

Sanctions may include educational, restorative, rehabilitative, and punitive components.  Some conduct, however, is so egregious in nature, harmful to the individuals involved or so deleterious to the educational process that it requires severe sanctions, including suspension or expulsion from the University.

The Employee Procedures further state the scope of possible sanctions will be dependent upon the employee disciplinary procedures applicable to the Respondent, but will include one or more of the following: informal and formal counseling, progressive disciplinary action, No Contact Directive, transfer of position, removal of administrative appointment, demotion, suspension, and/or termination of employment.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

7. State whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment.

The Student Procedures and Employee Procedures provide the standard of evidence is Preponderance of the Evidence.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

8. Include the procedures and permissible bases for the complainant and respondent to appeal.

Neither the Student Procedures nor the Employee Procedures provide an appeal. Currently, the Student Procedures and Employee Procedures similarly allow for either party to contest the investigator’s recommended findings—see Section VI (A)(1) from Student Procedures:

o)  Recommended Finding(s) of Responsibility.  When the Investigator determines that there is sufficient evidence, by a Preponderance of the Evidence, to support a finding of responsibility on one or more of the allegations, the Respondent may accept or contest such recommended finding(s) by so notifying the Title IX Coordinator, in writing. If the Respondent accepts the recommended finding(s) of responsibility, the Title IX Coordinator will refer the case for a Hearing before the Review Panel solely on the issue of sanction, as outlined in Section VI.A.3(g) of these Procedures.  If the Respondent contests one or more of the recommended finding(s), the Respondent may submit to the Title IX Coordinator a written statement explaining why the Respondent contests such finding(s). The Title IX Coordinator will ensure that the Complainant has an opportunity to review and respond in writing to any such statement. The Title IX Coordinator will provide the Final Investigation Report, together with any statements by the parties, to the Review Panel for further proceedings as outlined in Section VI.A.3 of these Procedures.

p)  Recommended Finding(s) of No Responsibility.  When the Investigator determines that there is insufficient evidence, by a Preponderance of the Evidence, to support a finding of responsibility on one or more of the allegations, the Complainant may accept or contest the recommended finding(s) by so notifying the Title IX Coordinator, in writing.  If the Complainant accepts the recommended finding(s) of no responsibility, the investigation will be closed and documented in accordance with applicable University policies.  If the Complainant contests one or more of the recommended finding(s), the Complainant may submit to the Title IX Coordinator a written statement explaining why the Complainant contests such finding(s). The Title IX Coordinator will ensure that the Respondent has an opportunity to review and respond in writing to any such statement.  The Title IX Coordinator will provide the Final Investigation Report, together with any statements by the parties, to the Review Panel for further proceedings as outlined in Section VI.A.3 of these Procedures.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

9. Describe the range of supportive measures available to complainants and respondents.

The Student Guide and Employee Guide describe the supportive measures available to complainants and respondents. See above discussion in Definitions.

§ 106.45(b)(1) outlines the ten basic requirements for a grievance process to address formal complaints of sexual harassment. A grievance process must:

10. Not require, allow, rely upon, or otherwise use questions or evidence that constitute or seek disclosure of information protected under a legally recognized privilege, unless the person waives such privilege.

The Student Procedures and Employee Procedures state that the investigator will only gather medical records subject to the consent of the applicable party.

§ 106.45(b)(2) describes the notice a University must provide to the parties upon receipt of a formal complaint:

1. Notice of the University’s grievance process, including any informal resolution process;
2. Notice of the allegations, including sufficient details known at the time and sufficient time to prepare a response, including the identities of the parties, if known, the alleged conduct, and the date and location of the alleged incident, if known; written notice that the respondent is presumed not responsible and that the determination of responsibility is made at the conclusion of the grievance process; that the parties may have an advisor of their choice who may be an attorney; and any provision that prohibits knowingly making false statements or knowingly submitting false information.

The Student Procedures and Employee Procedures state the written notice will: (1) identify the complainant and respondent; (2) specify the date, time (if known), and location and nature of the alleged prohibited conduct; (3) identify the potential HRM-041 violations; (4) identify the investigator; (5) include information about the parties’ respective expectations under HRM-041 and the Procedures; (6) explain the prohibition against retaliation; (7) instruct the parties to preserve potentially relevant evidence; (8) inform the parties how to challenge the participation by the investigator on the basis of bias or conflict of interest; and (9) provide a copy of HRM-041 and the Procedures.

§ 106.45(b)(3) provides for a dismissal of a formal complaint, stating that the University must dismiss a formal complaint for purposes of sexual harassment under Title IX if the conduct alleged would not constitute sexual harassment, even if proved, did not occur in the University’s education program or activity, or did not occur against a person in the United States; however, such dismissal does not preclude action under another provision of the University’s code of conduct. The University may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing a complainant requests in writing to the Title IX Coordinator to withdraw, the respondent is no longer enrolled or employed by the University, or specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

The University must provide written notice of the dismissal and the reason(s) simultaneously to the parties.

HRM-041, the Student Procedures, and the Employee Procedures do not provide a dismissal mechanism.

§ 106.45(b)(4) provides that a University may consolidate formal complaints against more than one respondent or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.

HRM-041, the Student Procedures, and the Employee Procedures do not specifically address consolidating complaints involving multiple complainants, respondents, etc.; however, it is the practice of the Title IX office to investigate allegations of sexual harassment that arise out of the same facts or circumstances in a single investigation or where the alleged conduct is substantially similar to the alleged conduct and indicates a potential pattern of conduct. The Procedures also contain the following language about pattern evidence: 

Prior or Subsequent Conduct.  Prior or subsequent conduct of the Respondent may be considered in determining pattern, knowledge, intent, motive, or absence of mistake.  For example, evidence of a pattern of Prohibited Conduct by the Respondent, either before or after the incident in question, regardless of whether there has been a prior finding of a Title IX Policy violation, may be deemed relevant to the determination of responsibility for the Prohibited Conduct under investigation. The determination of relevance of pattern evidence will be based on an assessment of whether the previous or subsequent conduct was substantially similar to the conduct under investigation or indicates a pattern of similar Prohibited Conduct.  Such prior or subsequent conduct may also constitute a violation of the PADH policy and/or the University’s Standards of Conduct, in which case it may subject the Respondent to additional sanctions.  The Investigator will determine the relevance of this information and both parties will be informed if evidence of prior or subsequent conduct is deemed relevant.

Student Procedures at Section VI (A)(1) (g).

Investigations of Formal Complaints of Sexual Harassment

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

1. Ensure that the burden of proof and the burden of gathering evidence rests on the University, not the parties

While the Student Procedures and Employee Procedures do not explicitly state a burden of proof, the Procedures provide that the investigation is a neutral fact-gathering process and the investigator is responsible for gathering relevant and available evidence and preparing a Final Investigation Report that includes a recommendation as to whether there is sufficient evidence, by a Preponderance of the Evidence, to support a finding of responsibility for a violation of HRM-041.

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

2. Provide an opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence

The Student Procedures and Employee Procedures state:

During the investigation, the parties will have an equal opportunity to be heard, to submit information and corroborating evidence, to identify witnesses who may have relevant information, and to submit questions that they believe should be directed by the Investigator to each other or to any witness. The Investigator will notify and seek to meet separately with the Complainant, the Respondent, and third-party witnesses, and will gather other relevant and available evidence and information, including, without limitation, electronic or other records of communications between the parties or witnesses (via voice-mail, text message, email and social media sites), photographs (including those stored on computers and smartphones), and medical records (subject to the consent of the applicable party).

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence

The Student Procedures and Employee Procedures do not include a “gag order.” The Student Procedures provide that the parties may not disclose the Final Investigation Report, statements of one party that are shared with the other party in the resolution process, and any documents prepared by the University, including documents by or for the Review Panel in advance of the Hearing as they constitute education records which may not be disclosed outside of the proceedings, except as required or authorized by law. The University does not, however, impose any restrictions on the parties regarding re-disclosure of the incident, their participation in the proceedings under these Procedures, or the Final Outcome Letter.

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

4. Provide the parties with the same opportunities to have others present during any grievance proceeding, including an advisor of their choice who may be an attorney, and not limit the choice or presence of advisor for either party in any meeting or grievance proceeding; however, the University may establish restrictions regarding the extent to which the advisor may participate in the proceeding, as long as the restrictions apply to both parties.

The Student Procedures and Employee Procedures provide:

Advisors. Throughout the investigation and resolution process, each party has the right to choose and consult with an advisor. The advisor may be any person, including an attorney, who is not otherwise a party or witness involved in the investigation. The parties may be accompanied by their respective advisors at any meeting or proceeding related to the investigation and resolution of a report under these Procedures.  While the advisors may provide support and advice to the parties at any meeting and/or proceeding, they may not speak on behalf of the parties or otherwise participate in, or in any manner disrupt, such meetings and/or proceedings.

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

5. Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

The Student Procedures and Employee Procedures require a written notice of investigation and written notice of Review Panel Hearing/Meeting be provided to both parties. It is the University’s practice to send invitations to meet with the Title IX Coordinator or investigator in writing via email with information about the purpose of the meeting.

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

6. Provide both parties an equal opportunity to inspect and review any evidence that is directly related to the allegations raised in a formal complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence. Prior to the completion of the investigative report, the University must send to each party and the party’s advisor, the evidence subject to inspection and review in an electronic format or a hard copy and provide at least 10 days to submit a written response. The University must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.

The Student Procedures and Employee Procedures require the investigator, at the conclusion of the investigation, to prepare a Draft Investigation Report (Draft Report) summarizing the information gathered and outlining the contested and uncontested information. The Draft Report does not include any findings. Both the complainant and respondent are provided the opportunity to review the Draft Report, meet with the investigator, submit additional comments and information to the investigator, identify any additional witnesses or evidence to pursue, and submit any further questions. The investigator designates a reasonable time for this review and response by the parties, not to exceed five (5) calendar days.

In practice, the investigator provides both the Draft Report and all cited exhibits via electronic mail and a Box link to both parties and their advisors, as applicable, and routinely grants reasonable extensions to respond as requested by the parties. Any extension of time is granted equally to the parties.

§ 106.45(b)(5) sets out what a University must do the following during an investigation of a formal complaint:

7. Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing, send to each party and the party’s advisor the investigative report in an electronic format or a hard copy, for their review and written response.

As noted above, the Student Procedures and Employee Procedures provide for the creation of a Draft Report but also provides for a Final Investigation Report (Final Report) that is created only after the parties have had an opportunity to respond to the Draft Report and summarizes all evidence and includes a recommendation as to whether there is sufficient information by a Preponderance of the Evidence, to support a finding of responsibility for violating HRM-041. The Final Report is provided to both parties simultaneously in writing and in practice, is disseminated via electronic mail and a Box link with all exhibits that are cited in the Final Report.

Live Hearing Requirements

§ 106.45(b)(6) requires the University to provide a live hearing. At the live hearing, the decision-maker must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.

Cross-examination must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. At the request of either party, the University must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to see and hear the party or witness answering questions. Only relevant cross-examination and other questions may be asked. Before a question is asked, the decision-maker must determine whether the question is relevant and explain any decision to exclude a question as not relevant.

The Student Procedures provide for a live hearing, called a “Review Panel Hearing,” and the Employee Procedures provide for a live hearing, called a “Review Panel Meeting.”

Neither the Student Procedures nor the Employee Procedures permit the party or their advisor to directly question the other party. Rather, in the current Procedures, either party may proffer questions for the Review Panel, which may choose, in its discretion, to pose appropriate relevant questions to the investigator, the parties and/or any witnesses.

In addition, the Review Panel has the absolute discretion to determine which witnesses are relevant and may decline to hear from witnesses where it concludes that the information is not necessary for its review.

§ 106.45(b)(6) provides that at the hearing, if the party does not have an advisor, the University must provide an advisor of the University’s choice without fee or charge to that party.

Neither the Student Procedures nor the Employee Procedures require the University to provide a party with an advisor. In practice, the University provides a list of advisors who are familiar with the University’s Policy and Procedures to the parties at the Notice of Investigation stage. It is the party’s choice of whom to select as an advisor, if anyone. The University does designate a support dean from the Office of the Dean of Students for each student party at the outset of a Formal Resolution; however, the support dean is not an advisor.

§ 106.45(b)(6) states that questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

The Student Procedures and Employee Procedures state:

Prior Sexual History.The sexual history of a Complainant or Respondent will never be used to prove character or reputation.  Moreover, evidence related to the prior sexual history of either of the parties is generally not relevant to the determination of an HRM-041 violation and will be considered only in limited circumstances.  For example, if the existence of Affirmative Consent is at issue, the sexual history between the parties may be relevant to help understand the manner and nature of communications between the parties and the context of the relationship, which may have bearing on whether Affirmative Consent was sought and given during the incident in question.  However, even in the context of a relationship, Affirmative Consent to one sexual act does not, by itself, constitute Affirmative Consent to another sexual act, and Affirmative Consent on one occasion does not, by itself, constitute Affirmative Consent on a subsequent occasion. In addition, prior sexual history may be relevant to explain the presence of a physical injury or to help resolve another question raised by the report. The Investigator will determine the relevance of this information and both parties will be informed if evidence of prior sexual history is deemed relevant.

§ 106.45(b)(6) states that if a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.

Neither the Student Procedures nor the Employee Procedures require cross-examination and neither require the Review Panel or other decision-maker to disregard information if the party or witness does not subject themselves to cross-examination or questioning.

The Student Procedures and Employee Procedures state:

Neither party is required to participate in the investigation or any form of resolution under these Procedures, and the investigator will not draw any adverse inference from a decision by either of the parties not to participate.

§ 106.45(b)(6) states that live hearing may be conducted with all parties present in the same geographic location, or, at the University’s discretion, any or all parties, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

The Student Procedures and Employee Procedures state that the Review Hearing/Review Meeting is an opportunity for the parties to address the Review Panel, in person about issues relevant to the Standard of Review to be applied by the Review Panel.[7]

§ 106.45(b)(6) requires Universities to create an audio or audiovisual recording or transcript of any live hearing and make it available to the parties for inspection and review.

While the Student Procedures and Employee Procedures do not explicitly require the recording of the hearing, it is the practice of the Title IX office to record all Review Panel Hearings and Review Panel Meetings by utilizing a court reporter. Transcripts are provided to the parties at no cost, upon request.

§ 106.45(b)(7)(i) states the decision-maker(s) cannot the same person(s) as the Title IX Coordinator or the investigator(s) and must issue a written determination regarding responsibility.

In the Student Procedures, the Review Panel members, who are three trained faculty or staff members, determine responsibility and sanction by majority vote and the Review Panel Chair, who is a non-voting member, issues a written decision (the “Final Outcome Letter”) to the parties with a  copy to the Title IX Coordinator.

In the Employee Procedures, the Review Panel members, who are three trained faculty or staff members, make a recommendation regarding responsibility and sanction by majority vote and the Review Panel Chair notifies in writing the parties and the appropriate executive in the Respondent’s chain of command of the recommendation (the “Review Panel Determination”). The appropriate executive is also provided a confidential copy of the Final Report, exhibits, and any accompanying supplemental statements. The appropriate executive has seven days to review the information and affirm or reject the recommendations. For faculty respondents, two of the three Review Panel members must be faculty, one of whom is appointed by the Executive Council of the Faculty Senate.

§ 106.45(b)(7)(ii) states the written determination must include

1. Identification of the allegations potentially constituting sexual harassment;
2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
3. Findings of fact supporting the determination;
4. Conclusions regarding the application of the University’s code of conduct to the facts;
5. A statement of, and rationale for the results as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the University imposes on the respondent, and whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided by the University to the complainant; and
6. The University’s procedures and permissible bases for the complainant and respondent to appeal.

The written determination must be provided in writing to the parties simultaneously and becomes final either on the date that the University provides the parties with the written determination of the result of the appeal, if the appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

Pursuant to the Student Procedures and Employee Procedures, the Review Panel Chair (or Title IX Coordinator for employee matters) will simultaneously issue a written decision (the Final Outcome Letter) to both the Complainant and the Respondent, with a copy to the Title IX Coordinator, within five (5) calendar days following the Review Panel Hearing (or such longer time as the Chair may for good cause determine). The Final Outcome Letter will set forth the violation(s) of the Title IX Policy (and, if applicable, the PADH policy and/or the Standards of Conduct) for which the Respondent was found responsible or not responsible, as supported by the rationale set forth in the Final Investigation Report and/or modified by the Review Panel; the sanction(s) (if applicable) imposed against the Respondent; and the rationale for any sanction(s) imposed.  The Final Outcome Letter may also identify protective measures implemented with respect to the Respondent or the broader University community. The Final Outcome Letter will not disclose any remedial measures provided to the Complainant.  

In practice, the Final Outcome Letters are simultaneously delivered to the parties and their advisors, as applicable, via electronic mail.

The Employee Procedures provide an additional step before the Final Outcome Letter. The Review Panel makes a recommendation to the Senior Executive, who then communicates whether they accept, reject, or modify the recommendations to the Title IX Coordinator. The recommendation, Senior Executive’s decision, and Final Outcome Letters are each provided to the parties and their advisors, as applicable, simultaneously via electronic mail.

Appeals and Appeal Procedures

§ 106.45(b)(8)(i) states a University must offer both parties an appeal from a determination regarding responsibility and from a University’s dismissal of a formal complaint or any allegations therein on the following bases:

1. Procedural irregularity that affected the outcome of the matter;
2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
3. The Title IX Coordinator, investigator(s) or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

§ 106.45(b)(8)(ii) states a University may offer an appeal equally to both parties on additional bases.

§ 106.45(b)(8)(iii) states that with regard to appeals, the University must

1. Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
2. Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s) or the Title IX Coordinator;
3. Ensure that the decision-maker(s) for the appeal complies with section (b)(1)(iii) [requirements regarding conflicts of interest and training];
4. Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
5. Issue a written decision describing the result of the appeal and the rationale for the result; and
6. Provide the written decision simultaneously to both parties.

The University’s Policy and Procedures do not currently provide for an appeal. See above section on Grievance Process for Formal Complaints of Sexual Harassment.

Informal Resolution

§ 106.45(b)(9) provides that a University may not require as a condition of enrollment or continuing enrollment, employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints. A University may not require the parties to participate in an informal resolution and may not offer an informal resolution process unless a formal complaint is filed.

The Procedures refer to Informal Resolution as “Alternative Resolution.” Alternative Resolution under both the Student Procedures and Employee Procedures is voluntary and the University will not compel a Complainant or Respondent to engage in Alternative Resolution.

The University does not require a “formal complaint” to proceed with Alternative Resolution and may proceed with Alternative Resolution whenever a report is made to the University.

§ 106.45(b)(9) provides that at any time prior to reaching a determination regarding responsibility the University may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the University

1. Provides written notice to the parties disclosing: the allegations, the requirements of informal resolution process, including circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including records that will be maintained or could be shared;
2. Obtains the parties’ voluntary, written consent to the informal resolution process;
3. Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

The Complainant may seek Alternative Resolution in place of an investigation and Formal Resolution; however, the University has the discretion to determine whether the nature of the reported conduct is appropriate for Alternative Resolution. At any time, the Complainant may choose to pursue Alternative Resolution (if available) or Formal Resolution. Forms of Alternative Resolution that involve face-to-face meetings between the Complainant and Respondent, such as mediation, are not available in cases involving Sexual Assault and/or where the Complainant is a Student and the Respondent is an Employee.

Alternative Resolution under the Student Procedures and Employee Procedures may include one-on-one communication between the parties, resolution with the assistance of a third party, or interventions and remedies. If an agreement is reached, the terms are implemented, and the matter is resolved and closed. If an agreement is not reached and the Title IX Coordinator determined that further action is necessary or if the Respondent fails to comply with the terms of the Alternative Resolution, the matter may be referred for an investigation and Formal Resolution.

Recordkeeping

§ 106.45(b)(10)(i) states that a University must maintain for a period of seven years records of:

1. Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required by the regulations, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the University’s education program or activity;
2. Any appeal and the result;
3. Any information resolution and the result;
4. All materials used to train Title IX Coordinator, investigators, decision-makers, and any person who facilitates an informal resolution process. A University must make these training materials publicly available on its website.

§ 106.45(b)(10)(ii) states that the University must create and maintain for a period of seven years, records of any actions, including supportive measures, taken in response to a report or formal complaint and if a University does not provide supportive measures, it must document the reasons why.

Under the Student Procedures, the University shall retain all records relating to a report of Prohibited Conduct for a period of ten years after the date the report was received, and the University shall retain all such records for a period of twenty years in a case in which the Respondent was found responsible for Prohibited Conduct.

Under the Employee Procedures, the University shall retain all records relating to a report of Prohibited Conduct, including investigation files and personnel record documentation of disciplinary or other personnel actions, in accordance with the University’s Record Retention and Disposition Schedule. See https://recordsmanagement.virginia.edu/.

The EOCR/Title IX Office does not currently publish its training materials on its website.

Retaliation

§ 106.71(a) prohibits retaliation, which is defined as:

No University or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privileged secured by Title IX or this part or because the individual made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise from the same facts and circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this part, constitutes retaliation.

HRM-041 defines Retaliation as any adverse action taken against a person for making a good faith report of Prohibited Conduct or participating in any proceeding under this policy. Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in activity protected under this policy. Retaliation may be present even where there is a finding of “no responsibility” on the allegations of Prohibited Conduct. Retaliation does not include good faith actions lawfully pursued in response to a report of Prohibited Conduct.

§ 106.71(b)(1) states that the exercise of rights protected under the First Amendment does not constitute retaliation prohibited under section (a).

Neither HRM-041 nor the Procedures explicitly cite to the First Amendment.

§ 106.71(b)(2) states that charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

HRM-041 states: All University community members are expected to provide truthful information in any report or proceeding under this policy. Submitting or providing false or misleading information in bad faith or with a view to personal gain or intentional harm to another in connection with an incident of Prohibited Conduct is prohibited and subject to disciplinary sanctions under the University’s Honor Code and disciplinary action under the appropriate Employee disciplinary policy. This provision does not apply to reports made or information provided in good faith, even if the facts alleged in the report are not later substantiated.