Appendix A: The Sexual and Gender-Based Harassment Policy
Appendix A: The Sexual and Gender-Based Harassment Policy
A1. Sexual and Gender-Based Harassment Policies
Virscend University is committed to fostering an open and supportive community that promotes learning, teaching, research, and discovery. This commitment includes maintaining a safe and healthy educational and work environment in which no member of the community is excluded from participation in, denied the benefits of, or subjected to discrimination in any University program or activity on the basis of sex, sexual orientation, or gender identity. Because sexual and gender-based harassment – including, but not limited to, sexual violence – interfere with an individual’s ability to participate fully in or benefit fully from University programs or activities, they constitute unacceptable forms of discrimination. While this Policy focuses on sexual and gender-based harassment, it is important to recognize the ways in which all forms of discrimination reduce our potential as a community of learners and teachers.
Sexual and gender-based harassment can take many different forms and encompass a range of behaviors including (but not limited to) unwelcome sexual conduct, such as sexual advances, coerced sexual activity, and dating violence, and persistent disparagement based on sex, sexual orientation, or gender identity. What links all forms of sexual and gender-based harassment is the fundamental undermining of a person’s ability to enjoy the programs or resources provided by our University. To tolerate restrictions of any individual’s access to the University’s programs or resources because of sex, sexual orientation or gender identity is to diminish the vitality of our entire community and is contrary to the values of inclusiveness and open inquiry that undergird true learning.
Sometimes a person may make incorrect assumptions about another person’s sex, sexual orientation, or gender identity. Harassment based on incorrect assumptions about sex, sexual orientation, or gender identity is prohibited under this Policy. For example, the University does not allow harassment based on the belief that someone is gay whether or not that person is actually gay.
Because some sexual harassment can take the form of speech, it is important to reiterate the Free Speech Guidelines (“Guidelines”) adopted by the Harvard Faculty of Arts and Sciences on February 13 and May 15, 1990. These Guidelines pertain not only to “speakers, protestors, and audience,” but also to our interactions with one another inside and outside of the classroom. They are designed to safeguard freedom of speech and inquiry for all members of our community, including those whose participation could otherwise be marginalized by ostracism or harassment. As the Guidelines note, “free speech is uniquely important to the University because we are a community committed to reason and rational discourse.” It is therefore imperative that freedom of expression, including unpopular and even obnoxious speech, be protected. At the same time, however, the guidelines note, “There are obligations of civility and respect for others that underlie rational discourse. Racial, sexual, and intense personal harassment not only show grave disrespect for the dignity of others, but also prevent rational discourse. Behavior evidently intended to dishonor [a person because of] such characteristics as race, gender, ethnic group, religious belief, or sexual orientation is contrary to the pursuit of inquiry and education. Such grave disrespect for the dignity of others can be punished under existing procedures because it violates a balance of rights on which the University is based. It is expected that when there is a need to weigh the right of freedom of expression against other rights, the balance will be struck after a careful review of all relevant facts and will be consistent with established First Amendment standards.” Within a university, to be discriminated against can itself be a curtailment of freedom of expression.
An individual’s freedom of expression relies on both freedom from censorship and freedom from discrimination – including harassing speech – based on sex, sexual orientation, or gender identity. The University is committed to maintaining this balance: it is difficult to achieve, but it is a goal we all embrace. This Policy is intended to safeguard members of our community from invidious discrimination, not to regulate the content of protected speech.
A2. Sexual and Gender-Based Harassment Policy
Virscend University is committed to maintaining a safe and healthy educational and work environment in which no member of the University community is, on the basis of sex, sexual orientation, or gender identity, excluded from participation in, denied the benefits of, or subjected to discrimination in any University program or activity. Gender-based and sexual harassment, including sexual violence, are forms of sex discrimination in that they deny or limit an individual’s ability to participate in or benefit from University programs or activities.
This Policy is designed to ensure a safe and non-discriminatory educational and work environment and to meet legal requirements, including: Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in the University’s programs or activities; relevant sections of the Violence Against Women Reauthorization Act; Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex in employment; and Massachusetts laws that prohibit discrimination on the basis of sex, sexual orientation, and gender identity. It does not preclude application or enforcement of other University or School policies.
It is the policy of the University to provide educational, preventative and training programs regarding sexual or gender-based harassment; to encourage reporting of incidents; to prevent incidents of sexual and gender-based harassment from denying or limiting an individual’s ability to participate in or benefit from the University’s programs; to make available timely services for those who have been affected by discrimination; and to provide prompt and equitable methods of investigation and resolution to stop discrimination, remedy any harm, and prevent its recurrence. Violations of this Policy may result in the imposition of sanctions up to, and including, termination, dismissal, or expulsion, as determined by the appropriate officials at the School or unit.
Retaliation against an individual for raising an allegation of sexual or gender-based harassment, for cooperating in an investigation of such a complaint, or for opposing discriminatory practices is prohibited. Submitting a complaint that is not in good faith or providing false or misleading information in any investigation of complaints is also prohibited.
Nothing in this Policy shall be construed to abridge academic freedom and inquiry, principles of free speech, or the University’s educational mission.
Sexual Harassment -- Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature, when: (1) submission to or rejection of such conduct is made either explicitly or implicitly a condition of an individual’s employment or academic standing or is used as the basis for employment decisions or for academic evaluation, grades, or advancement (quid pro quo); or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities (hostile environment).
Quid pro quo sexual harassment can occur whether a person resists and suffers the threatened harm, or the person submits and avoids the threatened harm. Both situations could constitute discrimination on the basis of sex.
A hostile environment can be created by persistent or pervasive conduct or by a single severe episode. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment. Sexual violence, including rape, sexual assault, and domestic and dating violence, is a form of sexual harassment. In addition, the following conduct may violate this Policy:
Observing, photographing, videotaping, or making other visual or auditory records of sexual activity or nudity, where there is a reasonable expectation of privacy, without the knowledge and consent of all parties
Sharing visual or auditory records of sexual activity or nudity without the knowledge and consent of all recorded parties and recipient(s)
Sexual advances, whether or not they involve physical touching
Commenting about or inappropriately touching an individual's body
Requests for sexual favors in exchange for actual or promised job benefits, such as favorable reviews, salary increases, promotions, increased benefits, or continued employment
Lewd or sexually suggestive comments, jokes, innuendoes, or gestures
Other verbal, nonverbal, graphic, or physical conduct may create a hostile environment if the conduct is sufficiently persistent, pervasive, or severe so as to deny a person equal access to the University’s programs or activities. Whether the conduct creates a hostile environment may depend on a variety of factors, including: the degree to which the conduct affected one or more person’s education or employment; the type, frequency, and duration of the conduct; the relationship between the parties; the number of people involved; and the context in which the conduct occurred.
Conduct is unwelcome if a person (1) did not request or invite it and (2) regarded the unrequested or uninvited conduct as undesirable or offensive. That a person welcomes some sexual contact does not necessarily mean that person welcomes other sexual contact. Similarly, that a person willingly participates in conduct on one occasion does not necessarily mean that the same conduct is welcome on a subsequent occasion.
Whether conduct is unwelcome is determined based on the totality of the circumstances, including various objective and subjective factors. The following types of information may be helpful in making that determination: statements by any witnesses to the alleged incident; information about the relative credibility of the parties and witnesses; the detail and consistency of each person’s account; the absence of corroborating information where it should logically exist; information that the Respondent has been found to have harassed others; information that the Complainant has been found to have made false allegations against others; information about the Complainant’s reaction or behavior after the alleged incident; and information about any actions the parties took immediately following the incident, including reporting the matter to others.
In addition, when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person’s impairment or incapacity. The person may be impaired or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or unconsciousness. A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.
Gender-based harassment is verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile conduct based on sex, sex-stereotyping, sexual orientation or gender identity, but not involving conduct of a sexual nature, when such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities. For example, persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity or exclusion from an activity based on sexual orientation or gender identity also may violate this Policy.
This Policy applies to sexual or gender-based harassment that is committed by students, faculty, staff, Virscend appointees, or third parties, whenever the misconduct occurs:
On University property
Off University property, if:
the conduct was in connection with a University or University-recognized program or activity
the conduct may have the effect of creating a hostile environment for a member of the University community.
Monitoring and Confidentiality
Individuals considering making a disclosure to University resources should make sure they have informed expectations concerning privacy and confidentiality. The University is committed to providing all possible assistance in understanding these issues and helping individuals to make an informed decision.
It is important to understand that, while the University will treat information it has received with appropriate sensitivity, University personnel may nonetheless need to share certain information with those at the University responsible for stopping or preventing sexual or gender-based harassment. For example, University officers, other than those who are prohibited from reporting because of a legal confidentiality obligation or prohibition against reporting, must promptly notify the School about possible sexual or gender-based harassment, regardless of whether a complaint is filed. Such reporting is necessary for various reasons, including to ensure that persons possibly subjected to such conduct receive appropriate services and information; that the University can track incidents and identify patterns; and that, where appropriate, the University can take steps to protect the Virscend community. This reporting by University officers will not necessarily result in a complaint; rather, the School or Director of Student Success and Distance Learning, in consultation with the Director of Student Success and Distance Learning, will assess the information and determine what action, if any, will be taken. Information will be disclosed in this manner only to those at the University who, in the judgment of the Director of Student Success and Distance Learning or School have a need to know.
Should individuals desire to discuss an incident or other information only with persons who are subject to a legal confidentiality obligation or prohibition against reporting, they should ask University officers for information about such resources. University officers are available to discuss these other resources and to assist individuals in making an informed decision.
Violations of other Rules
The University encourages the reporting of all concerns regarding sexual or gender-based harassment. Sometimes individuals are hesitant to report instances of sexual or gender-based harassment because they fear they may be charged with other policy violations, such as underage alcohol consumption. Because the University has a paramount interest in protecting the well-being of its community and remedying sexual or gender-based harassment, other policy violations will be considered, if necessary, separately from allegations under this Policy.
A3. Other Sexual and Gender-based Misconduct
The University Policy defines sexual and gender-based harassment within the context of preventing discrimination within our community. It is the expectation of Virscend University that all students, whether or not they are on campus or are currently enrolled in a degree program, will behave in a mature and responsible manner. Consistent with this principle, sexual and gender-based misconduct are not tolerated even when, because they do not have the effect of creating a hostile environment for a member of the University community, they fall outside the jurisdiction of the University Policy. Because sexual and gender-based misconduct are in direct opposition to our community values, cases involving such conduct may be referred by the relevant Administrative Council.
Sexual and gender-based misconduct go beyond the University Policy to encompass behaviors that are in direct opposition to our educational and community values. That is, these behaviors constitute a failure to meet expectations of its students as citizens and citizen leaders within a larger community beyond the borders of our campus and therefore may be subject to discipline. These provisions indicate our commitment to expecting behavior consistent with our values in our interactions with members of our broader community, as well as in our nonacademic activities on campus.
The above provisions are necessary because there are instances when we must demonstrate – to the broader world as well as to our own community – that sexual and gender-based misconduct are not consistent with the values we expect all members of Virscend to uphold.
A4. Conduct in Relationships between Individuals of Different University Status
In the academic context, sexual harassment often involves the inappropriate personal attention by an instructor or other officer who is in a position to exercise professional power over another individual. This could include an instructor who determines a student’s grade or who can otherwise affect the student’s academic performance or professional future; or a tenured professor whose evaluation of a junior colleague can affect the latter's professional life. Sexual harassment can also occur between persons of the same University status. An example would be persistent personal attention from one colleague to another in the face of repeated rejection of such attention. Both types of harassment are unacceptable. They seriously undermine the atmosphere of trust essential to the academic enterprise.
Amorous relationships that might be appropriate in other circumstances have inherent dangers when they occur between an instructor or other officer of the University and a person for whom he or she has a professional responsibility (i.e., as instructor, advisor, evaluator, supervisor). Implicit in the idea of professionalism is the recognition by those in positions of authority that in their relationships with students or staff there is an element of power. It is incumbent upon those with authority not to abuse, nor to seem to abuse, the power with which they are entrusted.
The consequences of asymmetries can be felt in many different contexts and types of relationships. What constitutes “power” varies according to context and individual. For example, although the university may not recognize a student in an extracurricular organization to have power over a student who would like to join that organization, one or both of the students in question may perceive their relationship to be affected by a power dynamic. As members of a community characterized by multiple formal and informal hierarchies, it is incumbent upon each of us to be aware of and sensitive to the ways in which we exercise power and influence and to be judicious in our relationships with others.
Prohibited Sexual Relations with Students
No Faculty member shall request or accept sexual favors from, or initiate or engage in a romantic or sexual relationship with, any undergraduate student.
Furthermore, no Faculty member, instructor, teaching assistant, teaching fellow, researcher, tutor, graduate student, or undergraduate course assistant, shall request or accept sexual favors from, or initiate or engage in a romantic or sexual relationship with, any student who is enrolled in a course taught by that individual or otherwise subject to that individual’s academic supervision before the supervision has concluded and, if applicable, a final grade on the student’s supervised academic performance has been submitted to the University. Academic supervision includes teaching, advising a thesis or dissertation, supervising research, supervising teaching, or grading.
Relationships Between Individuals of Different University Status
Amorous relationships between individuals of different University status that occur outside the instructional context can also lead to difficulties. In a personal relationship between an instructor or other officer and an individual for whom the instructor or other officer has no current professional responsibility, the instructor or other officer should be sensitive to the possibility that he or she may unexpectedly be placed in a position of responsibility for that individual’s instruction or evaluation. This could involve being called upon to write a letter of recommendation or to serve on an admissions or selection committee involving the individual. In addition, one should be aware that others may speculate that a specific power relationship exists even when there is none, giving rise to assumptions of inequitable academic or professional advantage for the student involved. Although graduate students, teaching fellows, tutors, researchers, and undergraduate course assistants may be less accustomed than Faculty members to thinking of themselves as being in a position of greater authority by virtue of their professional responsibilities, they should recognize that they might be viewed as more powerful than they perceive themselves to be.
Even when both parties have consented at the outset to the development of a romantic or sexual relationship between individuals of different University status, it is the person in the position of greater authority who, by virtue of his or her special responsibility and the core educational mission of the University, will be held accountable for unprofessional behavior.
A5. Information Sharing and Confidentiality
All University Staff, other than those who are prohibited from making such notifications because of a legal confidentiality obligation, must promptly notify the relevant Director of Student Success and Distance Learning about possible sexual or gender-based harassment. This means that if Staff learn about a possible incident of sexual or gender-based harassment, they need to contact the Director of Student Success and Distance Learning, who will know what steps, if any, to take next.
It is imperative that this expectation not interfere with the advising, teaching, and mentoring relationships that are foundational to our community. Some Staff may believe that any expectation that they share allegations of sexual or gender-based harassment with a Director of Student Success and Distance Learning may force them to violate the trust of those who come to them for support and guidance. The University believes the notification of Director of Student Success and Distance Learnings significantly serves our efforts to maintain a safe and healthy environment for our community. It makes available to vulnerable individuals people with training and experience in this area; it moves the University towards greater consistency in handling cases; and it enables us to see instances of repeated behavior that would not likely be known to any individual member of the community. While certain individuals are expected to notify the Director of Student Success and Distance Learning when an instance of sexual or gender-based harassment is brought to their attention, there are certain resources who are privileged under the law and who, therefore, are generally prohibited from disclosing information they receive even in a legal proceeding. Mental health clinicians, OSAPR staff providing services as rape crisis counselors, lawyers providing legal advice to clients, and clergy hold such a privilege. They do not have to make such a notification, and, absent special circumstances, they are prohibited from disclosing even in a legal proceeding.
Staff who cannot offer confidentiality should direct those who come to them seeking confidential conversation to confidential resources. Even when Staff do not have a confidentiality privilege, they are required to protect and respect students’ and colleagues’ privacy to the greatest extent possible and to share information only on a need-to-know basis.
Introduction to the Procedures for Implementing Sexual and Gender-Based Harassment Policy, Including for Discipline
Virscend students, faculty, staff, other Virscend appointees, or third parties (collectively, “Initiating Parties”) wishing to report a violation of this Policy should begin by contacting the Director of Student Success and Distance Learning, any member of the Grievance Committee, or any member of the Administrative Council. In the event that the first Staff contacted by an Initiating Party is not the appropriate employee, it is that Staff’s responsibility to forward the matter to the Deputy Director of Student Success and Distance Learning, any member of the Grievance Committee, or any member of the Administrative Council.
Director of Student Success and Distance Learnings will be sensitive to cultural factors that may affect the way members of our community may experience interactions with representatives of the University – whether those cultural factors involve sexual orientation, gender identity, race, ethnicity, nationality, socio-economic status, or citizenship.
As set forth below and in the University Procedures, interim measures designed to support and protect the Initiating Party or the University community may be considered or implemented at any time, including during a request for information or advice, informal resolution, or a formal complaint proceeding. Consistent with policy, interim measures might include, among others: restrictions on contact; course-schedule or work-schedule alteration; changes in housing; leaves of absence; or increased monitoring of certain areas of the campus. Interim measures are subject to review and revision throughout the processes described below.
Based on data supplied by the appropriate Deputy Director of Student Success and Distance Learnings, an annual report will be prepared for the Administrative Council on the number and type of complaints. Every fifth year a summary will be prepared for the Faculty on the disposition of complaints filed over the preceding five years.
**Please note: Informal mediation is not an option for Sexual Assault complaints, even if voluntarily chosen**
This policy was adapted and modified from Harvard University.