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Chapter 330: Employee Conduct

330.062 Title IX Policy and Procedures – Sex Discrimination, Sexual Harassment and Sexual Misconduct in Education

Executive Order 40, 4-8-14; Revised 6-19-14.

The policy set forth in this rule is intended to supplement the existing policies of the University of Missouri System and its respective campuses, as those policies relate to Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. Sections 1881 et seq., and its implementing regulations, 34 C.F.R. Part 106. In all informal or formal procedures involving allegations of Sex Discrimination, Sexual Harassment or Sexual Misconduct, regardless of any language found within the applicable procedural rules, the following shall apply:

  1. Sex Discrimination, Sexual Harassment and Sexual Misconduct in EducationSex discrimination is prohibited by University policy and law in educational programs, activities and employment. Title IX applies to all students, employees, volunteers and visitors at the University and prohibits unequal treatment on the basis of sex as well as sexual harassment and sexual misconduct, which are both forms of sex discrimination. Additionally, there is a specific application of Title IX in athletic programs to ensure gender equity and that women and men have equitable access to sports opportunities.

  2. Statement of Nondiscrimination – As stated in its applicable rules and policies, the University of Missouri does not discriminate on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, disability or status as a protected veteran. The University affirms its commitment to providing equal opportunities by establishing the Equal Opportunity Policy statement in Section 320.010 of the Collected Rules and Regulations. The University's nondiscrimination policies apply to any phase of its employment process, any phase of its admission or financial aid programs, or other aspects of its educational programs or activities. Additionally, this policy and the existing Title IX policies apply to allegations of sexual misconduct or allegations of other misconduct alleged to constitute sex discrimination, as defined in Section C below, all of which are forms of sex discrimination, occurring within the University’s educational programs and activities and instances occurring in other settings if there are effects of the conduct that interfere with or limit students’ ability to participate in or benefit from the University’s educational programs and activities. Notices of nondiscrimination are posted on the websites and at other locations for the UM System and each of the campuses.

  3. Definitions
    1. Sex Discrimination – Sex discrimination occurs when a person has been treated inequitably based on her/his sex, gender identity, or gender expression. Specifically, the University of Missouri System upholds Title IX, which states in part that “no person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.” Sexual harassment, sexual misconduct and sexual exploitation are forms of sex discrimination.

    2. Sexual Harassment – Sexual harassment is a subset of sex discrimination and is therefore prohibited. Sexual harassment is defined as either:
      1. Unwelcome sexual advances or requests for sexual activity by a person or persons in a position of power or authority to another person, or
      2. Other unwelcome verbal or physical conduct of a sexual nature by a person to another when:
        1. Submission to or rejection of such conduct is used explicitly or implicitly as a condition for academic or employment decisions; or
        2. The purpose or effect of such conduct is to interfere unreasonably with the work or academic performance of the person being harassed; or
        3. The purpose or effect of such conduct to a reasonable person is, to create an intimidating, hostile, or offensive environment.
    3. The term “hostile environment” means that the sexual harassment must be sufficiently severe or pervasive and objectively offensive to alter the terms and conditions of the Complainant’s educational or work environment.

    4. Sexual Misconduct – Sexual misconduct is a subset of sexual harassment and is thus also prohibited as a kind of sex discrimination. Sexual misconduct is including but not limited to nonconsensual sexual intercourse; nonconsensual sexual contact involving the sexual touching of the genitals, breast or anus of another person or the nonconsensual sexual touching of another with one’s own genitals whether directly or through the clothing; or exposing one’s genitals to another under circumstances in which he or she should reasonably know that his or her conduct is likely to cause affront or alarm; or sexual exploitation. The term nonconsensual includes, without limitations, circumstances in which the alleged victim was incapacitated by alcohol, drugs or other circumstances and, therefore, incapable of consenting.

    5. Sexual Exploitation – Sexual exploitation is a subset of sexual misconduct and occurs when one person takes nonconsensual or abusive sexual advantage of another person for his/her own advantage or benefit or for the advantage or benefit of anyone other than the person being exploited and which behavior does not constitute any other form of sexual misconduct. Examples of sexual exploitation include, but are not limited to, the following activities done without the consent of all participants:
      1. Invasion of sexual privacy;
      2. Prostituting another person;
      3. Taping or recording of sexual activity;
      4. Going beyond the boundaries of consent to sexual activity (letting your friends hide to watch you engaging in sexual activity);
      5. Engaging in voyeurism;
      6. Knowingly transmitting an STI, STD, venereal disease or HIV to another person;
      7. Exposing one’s genitals to another person or inducing another to expose their genitals;
      8. Sex based stalking or bullying.

    6. Consent to Sexual Activity – Consent to sexual activity is a voluntary agreement to engage in sexual activity. Someone who is incapacitated cannot consent. Past consent does not imply future consent. Silence or absence of resistance does not imply consent. Consent to engage in sexual activity with one person does not imply consent to engaged in sexual activity with another. Consent can be withdrawn at any time. Coercion, force, or threat of either invalidates consent.

    7. Incapacitated  – An individual who is incapacitated lacks the capacity to give knowing consent. Incapacitation can be due to the use of drugs or alcohol, when a person is asleep or unconscious, or because of an intellectual or other disability that prevents the individual from having the capacity to give consent.

  4. Title IX Coordinators – Duties and responsibilities of the University’s Title IX Coordinators include monitoring and oversight of overall implementation of Title IX Compliance at the University, including coordination of training, education, communications, and coordination with grievance procedures for faculty, staff, students and other members of the University community.

    Any person having inquiries concerning the application of Title IX should contact their respective UM System or campus Title IX Coordinator. The following individuals serve as Title IX Coordinators and are designated to handle inquiries regarding the non-discrimination policies and to serve as the coordinators for purposes of Title IX compliance:
  5. University of Missouri System
    Betsy Rodriguez, Ph.D.
    Vice President Human Resources

    Address:
    215 University Hall
    Columbia, MO 65211
    Telephone Number: (573) 882-8279
    Email Address: rodriguezea@umsystem.edu

    Missouri University of Science and Technology
    Shenethia Manuel, J.D.
    Associate Vice Chancellor, Human Resource Services,Affirmative Action, Diversity, and Inclusion

    Address:
    113 Centennial Hall
    300 W. 12th Street
    Rolla, MO 65409
    Telephone Number: (573) 341-4920
    Email Address: manuels@mst.edu
    http://titleix.mst.edu/

    University of Missouri-Columbia
    Linda Bennett
    Interim Title IX Coordinator

    Address:
    321 I Townsend Hall
    Columbia, MO 65211
    Telephone Number: (573) 882-7915
    Email Address: bennettli@missouri.edu
    http://equity.missouri.edu/titleix.php

    University of Missouri-Kansas City
    Michael Bates, J.D.
    Director of Affirmative Action
    Human Resources

    Address:
    212 Administrative Center
    5100 Oak Street
    Kansas City, MO 64110
    Telephone Number: (816) 235-6910
    Email Address: batesmd@umkc.edu
    http://www.umkc.edu/hr/TitleIX/default.asp

    University of Missouri-St. Louis
    Deborah J. Burris
    Director and Chief Diversity Officer
    Office of Equal Opportunity

    Address:
    127 Woods Hall
    Saint Louis, MO 63121
    Telephone Number: (314) 516-5695
    Email Address: burrisd@umsl.edu
    http://www.umsl.edu/services/oeo/policies1/titleIX.html

  6. Reporting Sexual Harassment including Sexual Misconduct
    1. Students, Employees, Volunteers and Visitors – Students, employees, volunteers and visitors of the University who have experienced any form of sex discrimination, including sexual harassment or sexual misconduct, are encouraged to report the incident promptly to the appropriate Title IX Coordinator listed in Section D above. For questions regarding confidentiality or requests that the complaint not be pursued, see Section F below.

    2. Mandated Reporters – Any employee of the University who becomes aware of an act of sexual harassment (including sexual misconduct) or behavior which could be characterized as sexual harassment, when perpetrated against a student of the University is considered a Mandated Reporter. Exception: Employees with a legal obligation or privilege of confidentiality (including health care providers, counselors, lawyers, and their associated staff) are not considered Mandated Reporters and are not required to report when the information is learned in the course of a confidential communication. This also means that the employee seeking the exemption is employed by the University for that specific purpose and was acting in that capacity when the confidential disclosure was made. If the information is not learned in the course of confidential communication (for example, behavior is observed in class) then the employee has the same obligation as a Mandated Reporter.

    3. Required Reporting and Disclosure – A Mandated Reporter is required to promptly report the information s/he receives to the appropriate Title IX Coordinator. The Mandated Report must be made regardless of whether the person reporting the information to the Mandated Reporter requests confidentiality and regardless of how the Mandated Reporter becomes aware of the offensive behavior (personal observation, direct information from the subject of the behavior, indirect information from a third party, etc.). If the Complainant, as defined in Section 200.020.B.5 of the Collected Rules and Regulations, requests confidentiality or that the charges not be pursued, the Mandated Reporter should warn the Complainant that, at this stage in the process, the Mandated Reporter must report some information to the Title IX Coordinator, depending on the employment status of the Mandated Reporter. The UM System and campuses should provide appropriate training to those employees likely to witness or receive reports of sexual harassment and violence.

    4. Content of Mandated Report to Title IX Coordinator – The information required of the Mandated Reporter will be based on the employment status of that individual. Supervisors must report all details that they possess. This includes names of the parties, if known, and all other information in the supervisor’s possession. Non-supervisory employees must report the known circumstances of the harassing behavior but their initial report is not required to give the name or other identifying information about the Complainant. The Title IX Coordinator will advise whether additional information needs to be reported.

  7. Requests for Confidentiality or Not to Pursue a Preliminary Investigation
    1. The Title IX Coordinator or other appropriate official should inform and obtain the consent from the Complainant before beginning a preliminary investigation. If the Complainant requests confidentiality or asks that the complaint not be pursued, the Title IX Coordinator should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a Complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the Title IX Coordinator should inform the Complainant that the institution’s ability to respond may be limited. The Title IX Coordinator should evaluate the Complainant’s request in the context of providing a safe and nondiscriminatory environment for all students.

    2. After due deliberation of the Complainant’s request, and in accordance with Title IX, the Title IX Coordinator may decide not to proceed with an investigation or referral to a grievance process. Such a decision should be well-reasoned and documented. If, after due deliberation, the Title IX Coordinator decides the University cannot or should not take disciplinary action against the alleged harasser, the Title IX Coordinator should consider other steps to limit the effects of the alleged harassment and prevent its recurrence.

  8. Cooperation with Law Enforcement  The Title IX Coordinator will not wait for the conclusion of a criminal investigation or criminal proceeding to begin the Title IX preliminary investigation. It may be necessary to delay temporarily the fact-finding portion of a Title IX preliminary investigation while the police are gathering evidence. The Title IX Coordinator will promptly resume the preliminary Title IX investigation as soon as notified by the law enforcement agency that it has completed the evidence-gathering process. The Title IX Coordinator will implement appropriate interim steps during the law enforcement agency’s investigation period to provide for the safety of the Complainant and the campus community and the avoidance of retaliation.

  9. Interim Remedies Available During Investigation  – During the preliminary investigation and grievance process and prior to making a determination whether the alleged sexual misconduct or other misconduct alleged to constitute sex discrimination has occurred, the Title IX Coordinator or other authorized administrators may provide interim remedies including, but not limited to, one or more of the following:
    1. Granting the request of the Complainant or the accused person to change classes, assignments or tests to avoid the other person;
    2. Granting the request of the Complainant or the accused person to change to another housing unit to avoid the other person;
    3. Granting the request of the Complainant or the accused person to change extracurricular activities to avoid the other person;
    4. Granting the request of the Complainant or the accused person to change transportation, dining facilities or other services to avoid the other person;
    5. Granting the request of the Complainant or the accused to alternative work assignments;
    6. Informing the Complainant of and facilitating access to available resources for victim advocacy, counseling, medical services, mental health services, housing assistance, academic support services and any other services that may be beneficial to the Complainant; and
    7. Informing the Complainant of her/his right to notify law enforcement authorities of the alleged incident.

  10. Preliminary Investigation  – A preliminary investigation into the report shall be conducted by the Title IX Coordinator or designee. For questions regarding confidentiality or requests that the complaint not be pursued, see Section F above. The purpose of the preliminary investigation is to gather enough information to refer the matter to the appropriate grievance process and to provide appropriate interim remedies. The preliminary investigation shall be concluded within a reasonable amount of time required to complete the investigation (typically 10-14 days). The preliminary investigation will be conducted in a manner so that it is adequate, reliable and impartial. The preliminary investigation may include any of the following: interviews of the parties involved, including witnesses, and the gathering of other relevant information.

    At the conclusion of the preliminary investigation, both the Complainant and the accused will be provided written information regarding the appropriate grievance process and interim remedies. The accused will not be notified of the individual remedies offered or provided to the Complainant.

  11. Grievance Processes and Procedures  – The University has grievance processes in place depending on whether the matter involves students, employees or visitors. At the conclusion of the preliminary investigation, both the Complainant and the accused will be provided written information regarding the appropriate grievance process. In all informal or formal procedures involving allegations of Sex Discrimination, Sexual Harassment or Sexual Misconduct, regardless of any language found within the applicable procedural rules, the following shall apply:
    1. The standard of proof shall be “preponderance of the evidence.”
    2. Informal resolution procedures are optional and may be used when the University determines that it is appropriate and both the Complainant and the accused are agreeable. Either the Complainant or the accused may end the informal procedure at any time and move to the formal procedure.
    3. Mediation, where both Complainant and the accused are together in the same room, is never utilized in cases involving allegations of nonconsensual sexual intercourse or nonconsensual sexual contact.
    4. Both the Complainant and the accused will be given notice of the procedure and equal opportunity to present witnesses and evidence.
    5. Questioning or evidence about the Complainant’s prior sexual conduct with anyone other than the accused is prohibited.
    6. The accused may not personally cross-examine the Complainant and the Complainant may not personally cross-examine the accused. Questions should be directed through the chair and those deemed appropriate and relevant will be asked on his/her behalf.
    7. The grievance process will normally be resolved within 60 calendar days. Deviations from this timeframe will be promptly communicated to both parties.
    8. Both the Complainant and the accused will be given periodic updates.
    9. The Complainant, the accused and the Title IX Coordinator will be notified in writing of the outcome of the grievance process.
    10. Remedies Available for Substantiated Allegations—If the outcome of the hearing is that the allegations of Sex Discrimination, Sexual Harassment or Sexual Misconduct have been substantiated, the Title IX Coordinator or other authorized administrators may immediately provide the Complainant with appropriate remedies including, but not limited to, one or more of the following:
      1. Providing escort services to assure that the Complainant can move safely between classes and activities;
      2. Removing the perpetrator from classes or extracurricular activities which include the Complainant or otherwise assuring that the Complainant and the perpetrator are not required to share the same classes or extracurricular activities;
      3. Moving the perpetrator to a different residence hall to assure that the Complainant and the perpetrator are not required to share the same residence hall;
      4. Providing the Complainant with comprehensive victim services including medical services, counseling and academic support services such as tutoring;
      5. Arranging for the Complainant to have extra time to complete or re-take a class or withdraw from a class without an academic or financial penalty; and
      6. Any of the interim remedies outlined in Section H above.
    11. The Title IX Coordinator or other authorized administrator may also provide additional remedies as may be appropriate for the school community.
    12. Any available appeals process must be equally available for both the Complainant and the accused. 

  12. Non-compliance  – Failure to comply with this policy can result in disciplinary action. Employees also are cautioned that non-compliance with this policy may increase their risk of personal liability. Further, an individual who fails to report sexual harassment/violence under this policy may be determined to be ineligible for defense or protection under CRR 490.010 for any associated claims, causes of action, liabilities or damages.

  13. Retaliation Prohibited  – The University strictly prohibits retaliation against any person for making a report required by this policy, for making any good faith report to a Title IX Coordinator or for filing, testifying, assisting, or participating in any investigation or proceeding involving allegations of sex discrimination, sexual harassment or sexual misconduct. Any person who engages in such retaliation shall be subject to disciplinary action in accordance with applicable procedures. Examples of prohibited retaliation include, but are not limited to, giving a lesser grade than the student’s academic work warrants because she filed a complaint of sexual harassment; giving lower than justified performance appraisals because a person was a witness in an investigation of alleged sexual harassment; and threatening to spread false information about a person for filing a complaint of sexual harassment.

  14. Office of Civil Rights  – Inquiries concerning the application of Title IX also may be referred to the United States Department of Education’s Office for Civil Rights. For further information on notice of nondiscrimination, visit http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm and for the address and phone number of the U. S. Department of Education office which serves your area, or call 1-800-421-3481. The State of Missouri regional Office of Civil Rights is located in Kansas City and is available to provide assistance.
  15. Region VII - Kansas City (Iowa, Kansas, Missouri, Nebraska)
    Regional Manager
    Office for Civil Rights
    U. S. Department of Health and Human Services
    Kansas City, MO 64106
    Voice Phone (816) 426-7277
    FAX (816) 426-3686
    TDD (816) 426-7065
  16. Related UM System Policies and Procedures  – Related UM System policies and procedures include:
    • Equal Opportunity/Affirmative Action Policy -
      http://www.umsystem.edu/ums/rules/collected_rules/personnel/ch320/320.010_Equal_Employment_Opportunity_Program

    • UM Sexual Harassment Policy -
      http://www.umsystem.edu/ums/rules/collected_rules/personnel/ch330/330.060_sexual_harassment
      • See also, Human Resources Manual – HR-510

    • UM System Student Conduct -
      http://www.umsystem.edu/ums/rules/collected_rules/programs/ch200/

    • UM System Rules of Procedures in Student Conduct Matters –
      http://www.umsystem.edu/ums/rules/collected_rules/programs/ch200/200.020_rules_of_procedures_in_student_conduct_matters

    • UM System Grievance Procedures -
      http://www.umsystem.edu/ums/rules/collected_rules/grievance

    • Academic Grievance Procedure -
      http://www.umsystem.edu/ums/rules/collected_rules/grievance/ch370/370.010_Academic_Grievance_Procedure

    • Administrative, Service, and Support Staff -
      http://www.umsystem.edu/ums/rules/collected_rules/grievance/ch380/380.010_grievance_procedure_administrative_service_support_staff

    • Student Discrimination Grievances -
      http://www.umsystem.edu/ums/rules/collected_rules/grievance/ch390/grievance_390.010

    • Positive Work & Learning Environment http://www.umsystem.edu/ums/hr/handbook/positive_work_and_learning_environment

     



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