Sexual Harassment and Misconduct Policy (non-Title IX)

Accommodations for individuals with disabilities in accessing these policies are available upon request by emailing accessiblepolicy@wcupa.edu.

Purpose and Scope

West Chester University is committed to equality of opportunity and freedom from unlawful discrimination for all its students and employees. Sexual harassment/misconduct is a form of unlawful discrimination based on sex and will not be tolerated in any form by faculty, staff, students, contractors, or vendors. The definitions and procedures outlined in this policy will be followed when a non-student is respondent of sexual harassment/misconduct by another non-student. When a student is the complainant, whether accusing another student or a non-student, the procedures in the Sexual Misconduct Policy will be followed.

Definitions

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other harassing conduct of a sexual nature. Sexual harassment occurs when:

  1. Submission to the unwelcome conduct of a sexual nature is made either explicitly or implicitly a term or condition of an individual's employment or status in a course, program, or activity;
  2. Submission to or rejection of the unwelcome conduct of a sexual nature by an individual is used as the basis for an academic or employment related decision affecting such an individual; or
  3. The unwelcome conduct of a sexual nature is sufficiently severe, persistent, or pervasive as to substantially limit or interfere with an individual's work, educational performance, participation in extra-curricular activities, or equal access to the University's resources and opportunities; or
  4. Such conduct creates an intimidating, hostile, or abusive living, working, or educational environment.

Sexual violence or misconduct is a form of sexual harassment. Sexual misconduct includes Regulatory and Non-Regulatory Dating Violence, Regulatory and Non-Regulatory Domestic Violence, Regulatory and Non-Regulatory Sexual Assault, Regulatory and Non-Regulatory Stalking, and Sexual Exploitation. For complete and current definitions on these terms, please see the full Sexual Misconduct Policy . Sexual harassment is also defined by Title IX regulations and applies when students or employees are the complainants.

Policy Statement

It is a violation of policy for any member of the University community to engage in sexual harassment/misconduct, or to take retaliatory action against an individual for reporting sexual harassment/misconduct. Consequences of sexual harassment/misconduct may include termination of the relationship with the University. Retaliatory actions against persons filing a complaint of sexual harassment/misconduct, or any person cooperating in the investigation of a complaint, are also prohibited. Acts of retaliation shall constitute misconduct subject to disciplinary action and should be reported to the Title IX Coordinator/Director for Equity and Compliance. 

All members of the University community are responsible for ensuring that their conduct does not sexually harass any other member of the University community.

This policy is not intended to interfere with the protections afforded by law to freedom of speech. Additional information, including additional examples of what constitutes sexual harassment/misconduct, is available from the Office for Diversity, Equity and Inclusion.

Policy Framework

Any individual having information about a member of the University community engaging in a specific act or a pattern of behavior which falls within the above definition of sexual harassment/misconduct must report the matter to the WCU Title IX Coordinator/ Director for Equity and Compliance.

Training Requirements

All employees in a supervisory role are required to attend (in person or virtual) harassment/misconduct prevention training offered by the Office for Diversity, Equity and Inclusion.

Reporting Requirements

University employees, except those identified in the Sexual Misconduct Policy as employees who serve in a role that makes such reports privileged or are recognized as providing a confidential resource, are required to provide the name of the recipient of any sexually harassing behavior to the Title IX Coordinator/Director for Equity and Compliance.

Supervisors of faculty and staff have the further responsibility of preventing and eliminating sexual harassment/misconduct within the areas of their authority.

If supervisors have information about alleged acts of sexual harassment/misconduct by someone whom they supervise, they must take immediate steps to ensure the matter is addressed and brought to the attention of the Title IX Coordinator/Director for Equity and Compliance. Failure by supervisors to report the alleged acts of sexual harassment/misconduct may result in disciplinary proceedings. If a manager addresses an issue with an employee which may reference sexually harassing behavior, a representative of the Office for Diversity, Equity and Inclusion is to be involved in the process. Faculty members and staff employees are required to inform the Title IX Coordinator/Director for Equity and Compliance whenever they become aware of behavior they believe to be sexual harassment/misconduct. 

Procedures

Overall responsibility for the implementation of the sexual harassment and sexual misconduct policy has been assigned to the Office for Diversity, Equity and Inclusion. Any individual having suggestions, problems, complaints, or grievances with regard to sexual misconduct is encouraged to contact the
office at 114 W. Rosedale Avenue or by phone at 610-436-2433. All procedures may be performed virtually. In the event that a member of the West Chester University Community feels that he or she has been the subject of sexual misconduct or harassment, the matter should be brought to the attention of the Office for Diversity, Equity and Inclusion. If a complaint alleges sexual harassment/misconduct by an employee of the Office for Diversity, Equity and Inclusion or the Office of the President, the complaint will be investigated by a party external to the University.

The University has a legal obligation to investigate informal or anonymous reports of sexual harassment/misconduct to the extent feasible and make
complainants and respondents aware of the resources available to them, while striving to respect privacy and confidentiality. The University's obligation to protect the safety of its students and to record statistics may not permit complete confidentiality, but the University shall take the necessary measures to ensure that the information shared is limited to those individuals required to know.

It is not usually possible to conduct a formal investigation of anonymous reports of sexual harassment/misconduct, or in situations where a complainant requests confidentiality or asks that the complaint not be pursued. The University has a responsibility to take action to prevent harassment/misconduct. In the event of anonymous reports of sexual harassment/misconduct, or if the complainant asks that the complaint not be pursued, reasonable steps will be taken to respond to the complaint consistent with the request for confidentiality, which may include meeting with the alleged harasser to provide notification of the allegations and the possible repercussions if a formal complaint is brought forward. The Director for Equity and Compliance may recommend voluntary sexual harassment/misconduct training for an individual or a work unit.

In order to conduct a formal investigation which may result in discipline of a University employee or student, there must be first- hand information by the
complainant or a witness who is available and willing to be identified and interviewed by the investigator(s). In determining whether a third-party
complaint should be formally investigated, the following factors need to be evaluated: (1) is the reporter of the complaint submitting reliable facts or
sufficient information; (2) does the complaint contain the name and contact information for the alleged complainant; (3) is there sufficient detail in the
complaint to determine whether the allegations fall within the realm of sexual harassment/misconduct; (4) has the complaint been brought forward in a timely manner.

The Office for Diversity, Equity and Inclusion reserves the ability to consider whether a violation can be reviewed if it is reported outside the 180-day period for filing a complaint. Factors that affect that consideration include the following:
• Submission of the complaint is beyond 180 days of the incident,
• Whether the alleged behaviors may represent a violation of the
University’s Sexual Harassment/misconduct Policy,
• The severity of the allegations,
• The University risk for failing to address the allegations, and
• Whether the allegations represent a possible pattern of behavior for the respondent. 

When consideration is being given to accepting a complaint beyond 180 days, management will provide the appropriate collective bargaining unit representative either oral or written notification, giving the collective bargaining unit representative the opportunity to respond within a reasonable time period.

The Complaint Process for Non-Title IX Sexual Harassment or Misconduct

The process below only applies for complaints filed against non-students for sexual harassment or misconduct not regulated by Title IX of the Educational Amendment of 1972. This would include, but is not limited to, allegations in violation of Titles VI and VII of the Civil Rights Act of 1964. If a Student is the Respondent, the procedures outlined in the Sexual Misconduct Policy will be followed.

Employees, whether Complainants or Respondents, have the right to be assisted in all aspects of the complaint procedure by their union representative. The complainant also has the right to be assisted in all aspects of the complaint procedure by an advocate should they desire to do so. If an employee elects to be represented by his or her union, the union will receive copies of all written notifications. Employees equally have the right not to be represented by their union. This decision rests solely with the employee. The role of the representative is limited to the advice and counsel of their principals only. Representatives cannot question, answer, or provide advice during an interview or hearing. However, parties can request a brief recess to consult their representative. 

Initiating a Complaint

In order to process an allegation of sexual harassment or sexual misconduct not falling under the 2020 Title IX regulations, the individual, accompanied by an advocate if they wish, must process the complaint through the Office for Diversity, Equity and Inclusion. Knowingly false or malicious accusations may result in disciplinary action. 

Complaints should be filed up to 180 days after the alleged act or behavior. However, it is in the best interest of all to conduct a timely review of the circumstances of the alleged harassing behavior; accordingly, complainants are urged to file complaints as soon as possible. The complainant also has the option of pursuing formal complaints through the following public agencies responsible for enforcing the laws against sexual harassment within the time frames listed:
• PA Human Relations Commission (215) 560-2496 180 days
• U.S. Dept. of Education, Office for Civil Rights (215) 656-8541 180 days
• Equal Employment Opportunity Commission (215) 440-2600 300 days

The process is initiated when the Director for Equity and Compliance receives a complaint or report of a violation of WCU policy relating to sexual harassment or misconduct not covered by Title IX regulations. The Complainant will provide a written statement to the Director with sufficient factual information to permit the Director to make an initial assessment of violation. The Director will determine if any supportive measures should be applied. Following the initial assessment, the Director may take any of the following actions: 

  • If the Director for Equity and Compliance determines that the complaint, even if substantiated, would not rise to the level of a policy violation; the nature and circumstances of the report do not make it appropriate for an investigation; or, after consultation with the Complainant about the Complainant’s preferences regarding participation, the Director determines that there will be insufficient information to investigate the matter, the Director may dismiss the
    complaint. The Complainant will be advised of the dismissal and of any other recourse that might be appropriate.
  • If the Director for Equity and Compliance determines that the complaint is outside the scope of the sexual harassment or sexual misconduct policies and/or most appropriately handled by another office, the Director may refer the complaint to another office for review.
  • If the Director for Equity and Compliance determines that the complaint or report would, if substantiated, constitute a violation of policy, the Director will advise the Complainant of the types of processes available.
  • If the Complainant chooses not to move forward with either process, or if the Complainant is anonymous, the Director for Equity and Compliance may notify the Respondent of the information reported and the possible repercussions if a formal complaint is brought forward. The Director may schedule a meeting with the Respondent (and their representative, if desired by the Respondent) to pass on this information, answer questions, and provide assistance. The Director may recommend voluntary training for an individual or a work unit. The reported information will be maintained by the Office for Diversity, Equity and Inclusion for a period of 7 years. However, no written record
    will be forwarded to a student’s education file or to an employee’s official personnel file.
  • The Director for Equity and Compliance may choose to move forward with the complaint process even if the Complainant withdraws their complaint or remains anonymous.

The Office for Diversity, Equity and Inclusion reserves the ability to consider
whether a violation can be reviewed if it is reported outside the 180-day
period for filing a complaint. Factors that affect that consideration include
the following:

  • Amount of time beyond 180 days,
  • Whether the alleged behaviors may represent a violation of the University’s Sexual Harassment Policy,
  • The severity of the allegations,
  • The University risk for failing to address the allegations, and
  • Whether the allegations represent a possible pattern of behavior for the respondent.

Notification Procedure for Employee as Respondent

  1. If the complainant is a student enrolled at the time in the class of the respondent, he or she may request that notification and mediation be delayed until after the completion of the semester.
  2. The Director for Equity and Compliance will send notification to the Provost’s office (for faculty) or Division Head (for other staff).
  3. The Provost or Division Head will send a notification letter to the Respondent that summarizes the complaint.
  4. When a formal investigation is to be conducted against a faculty member, Article 42 of the APSCUF collective bargaining agreement will also govern.

Investigations may take place at any time in the resolution process after notification to the respondent at the discretion of the Director for Equity and Compliance. The fact-finding procedure is not intended to interfere with any legal rights an employee or student has under the statutes and other laws of the Commonwealth of Pennsylvania or the government of the United States of America, or an employee's collective bargaining agreement.

Choice of Process by Complaint

Informal Process

The informal process includes efforts to mediate a resolution upon which both the complainant and the individual respondent can agree. Upon receipt of the complaint, notification to the respondent of the allegations, the complainant's desire for mediation, and the respondent's concurrence to the informal process, the Director for Equity and Compliance may facilitate a resolution or appoint a mediator(s) and notify the parties of the mediator(s) identity. 

Mediation occurs by mutual consent, therefore, at any stage of the mediation process either party has the opportunity to withdraw from the informal process.

  1. Mediation occurs by mutual consent, therefore, at any stage of the mediation process either party has the opportunity to withdraw from the informal process.
  2. If either party chooses to withdraw from the mediation process, the Director for Equity and Compliance will move forward with the formal complaint process.
  3. At the conclusion of the mediation, the mediator(s) will provide a written statement of the resolution agreed to by both parties to the Director for Equity and Compliance. The informal resolution process may recommend the following types of outcomes, where appropriate: facilitating an agreement between the parties, separating the parties, referring the parties to counseling programs, conducting targeted educational and training programs, and mediation.
  4. If the parties involved in the informal resolution process fail to reach a mutually agreeable outcome for the alleged conduct, the allegation will be resolved via the formal investigation process.
  5. The Director for Equity and Compliance will send a written summary of the outcome to the parties. 
  6. If the Director for Equity and Compliance makes a determination that there is a need, the formal process may be initiated on behalf of the University at any time.
  7. All written summaries of the informal complaint process will be maintained by the Office for Diversity, Equity and Inclusion for a period of 7 years. No written record will be forwarded to the employee’s official personnel file and for employees who are respondents, a successful informal resolution will not result in disciplinary proceedings. For students who are respondents, the matter may be forwarded to the
    Office for Student Conduct.
  8. Completed informal resolutions are binding and may not be appealed.

Formal Process

A complainant may initiate formal procedures. Formal procedures, which may result in a disciplinary proceeding, include a fact-finding and review process.

After accepting a written formal complaint, the Director for Equity and Compliance will appoint a fact finder. When appropriate, as determined by the Director, two fact finders may be assigned to a case. The parties will be notified of the fact finder’s identity. Fact finders are specifically trained and impartial faculty or staff. The fact finder’s role is to investigate complaints and make findings of fact pertaining to the complaint. 

  1. The investigation generally includes interviews with the parties, any relevant witnesses, and a review of relevant documents (text messages, emails, etc.). Participants in an investigation are advised that maintaining confidentiality is essential to protect the integrity of an investigation. At any time during the investigation, the investigator may
    recommend to the Director for Equity and Compliance that interim measures be provided to the Complainant, Respondent, or witnesses. Violations of these interim measures may be considered a separate violation of policy. 
  2. Employees whose positions are covered by collective bargaining units may request advocacy from their respective unions for an investigative interview. Representatives cannot question, answer, or provide advice during an interview or hearing. However, parties can request a brief recess to consult their representative.
  3. During an investigative interview, the interviewee is expected to answer the questions, not his or her representation. 
  4. The investigator(s) will take notes during the interview and provide each participant with a summary of the interview for the purpose of review. Any substantive changes to the content after the review by the participant may be noted in the final report.
  5. The investigation shall be completed as promptly as possible, and in most cases within fifty (50) business days of the date of the formal complaint was filed. A total of two attempts (by email, text, or phone) will be made to schedule investigative interviews. Failure to respond to scheduling requests will result in proceeding with the investigation
    without input from that individual. 
  6. At the conclusion of the investigation, the investigator will prepare a written report that includes a statement of the allegations and issues, identification of facts, reviewed evidence, a determination of whether the alleged actions may have violated University policy using the preponderance of evidence standard, and any recommendations. 
  7. The fact finders will submit a report of their findings to the Director for Equity and Compliance. The Director will formulate an opinion as to whether there has been a violation of the University's Sexual Harassment or Sexual Misconduct Policy.

If it is the opinion of the office that there is insufficient evidence to warrant a finding of a policy violation, the complainant and the respondent will be so notified and the case will be closed. The Office for Diversity, Equity and Inclusion maintains the right to refer the case to other appropriate University officials if it appears that there may be violations of University's Misconduct Policy or other University policies.

If it is the opinion of the Director for Equity and Compliance that there is reasonable cause to believe that the University's Sexual Harassment or Sexual Misconduct Policy has been violated, the office will forward the
investigative report and the Director's opinion to the appropriate manager.

The Director for Equity and Compliance will forward the investigative report and the Director’s opinion to the appropriate manager (for employee respondents) or to the Office of Student Conduct (for student respondents), who will follow appropriate University adjudication procedures.

For student respondents, the procedures to be followed are outlined in the STUDENT CODE OF CONDUCT. 

For employee respondents, the manager will utilize the existing University pre-disciplinary conference procedures ensuring that the respondent employee has the opportunity to be represented, if so desired, by their union representative during the pre-disciplinary conference. At the pre-disciplinary the respondent will have an opportunity to rebut the findings of the investigative report, and the opinion of the Director for Equity and Compliance. After completing the pre-disciplinary conference, the manager in consultation with the Associate Vice
President and Chief Human Resources Officer and other University officials, as needed, will determine if discipline is appropriate and what level of discipline should be imposed. Possible disciplinary actions for violation of the University's Sexual Harassment or Sexual Misconduct policy include oral or written reprimand, suspension, or termination of
employment. The manager is not bound by the opinion of the Director for Equity and Compliance and reserves the right to make their own final determination. Disciplined employees will have the right to appeal and/or grieve management's decision to the extent provided in the appropriate policy and/or collective bargaining agreement.

The complainant will receive notification that the complaint has been reviewed and addressed by University official. In addition to the internal complaint process, a complainant, may pursue the complaint with the appropriate external agencies.

This policy and the procedures addressed herein are in addition to, and not a replacement for, criminal remedies that may be available. Anyone interested in pursuing a criminal complaint should contact the Office of Public Safety at 610-436-3311 or dial 911 in the case of an emergency. If the incident occurred off campus, the WCU Public Safety Office will assist the complainant in filing the complaint in the appropriate jurisdiction.

References

This policy is in compliance with federal and state laws, including Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Educational Amendment of 1972, Section 504 of the Rehabilitation Act of 1972, Americans With Disabilities Act of 1972, Americans With Disabilities Act of 1990, Executive Orders of the Governor of Pennsylvania, and the Pennsylvania State System of Higher Education policies.

 

Sexual Harassment and Misconduct Policy (non-Title IX)

 

 

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