Formerly Executive Memorandum 95-110
Initially Approved: May 10, 1995
Revised: February 11, 2002
Revised: August 10, 2009
Revised: March 11, 2011
Revised: November 10, 2014
Revised: January 5, 2015 (technical corrections)
Revised: March 16, 2015 (technical corrections)
Revised: March 19, 2018
Revised: February 11, 2020 (technical corrections)
Policy Topic: Governance and Administration
Administering Offices: Chancellor’s Office; Legal Counsel’s Office
ANYONE WHO SUSPECTS CRIMINAL ACTIVITY SHOULD FIRST CALL THE UNIVERSITY POLICE DEPARTMENT AT 828-227-8911 FOR EMERGENCIES OR 828-227-7301 FOR NON-EMERGENCIES.
INDIVIDUALS WHO HAVE COMPLAINTS AGAINST EMPLOYEES, CONTRACTORS, VOLUNTEERS OR AGENTS UNDER THIS POLICY SHOULD CALL THE TITLE IX COORDINATOR AT 828-227-7116.
INDIVIDUALS WHO HAVE COMPLAINTS AGAINST STUDENTS UNDER THIS POLICY SHOULD CALL THE ASSOCIATE VICE CHANCELLOR FOR STUDENT AFFAIRS / DEAN OF STUDENTS AT 828-227-7147.
NOTE
For questions about this policy and general inquiries about Unlawful Discrimination, Sexual Misconduct or Retaliation, contact the WCU Title IX Coordinator:
Ivy Gibson, Title IX Coordinator
Phone: 828-227-7116
Email: igibson@wcu.edu
Website: https://www.wcu.edu/discover/leadership/office-of-the-chancellor/legal-counsel-office/TitleIX-Office/index.aspx
TABLE OF CONTENTS
Sections I: Policy statement on unlawful discrimination
Section II: Policy statement on sexual harassment and sexual violence
Section III: Scope and application of policy
Section IV: Definitions
Section V: Complaints
Section VI: Title IX Coordinator
Section VII: Sexual Violence Prevention Committee
Section VIII: Retaliation prohibited
Section IX: Employees’ obligation to report
Section X: Frivolous or false complaints
Section XI: Confidentiality of Investigations and Records
Section XII: Reports to the Chancellor
Section XIII: Related policies and resources
Western Carolina University (the “University”) is committed to equal opportunity in educational programs and employment for all persons regardless of race, color, religion, sex, sexual orientation, gender identity or expression, national origin, age, disability, genetic information, political affiliation and National Guard or veteran status. The University is also committed to an inclusive and welcoming environment where scholarship and the exchange of ideas may be freely accomplished. To the fullest extent allowed by law, the University does not permit harassment based on bigotry, slurs and other hateful rhetoric. Additionally, in order to foster participation and learning, to the fullest extent provided by law, the University does not permit discrimination based on the above classes or characteristics. See Section IV. “Definitions” below for a full description of prohibited conduct.
Sexual Misconduct, including Sexual Harassment and Sexual Violence, constitutes unlawful discrimination based on gender and threatens the University’s culture of civility and mutual respect. It is the policy of the University that its employees and students should be free from Sexual Misconduct perpetrated by any University employee, student, visitor to the campus, or any agent or contractor having a business, professional, or educational relationship with the University.
The University reaffirms its commitment to academic freedom in accordance with the First Amendment of the United States Constitution and the policies of the University of North Carolina. Where it is an integral and legitimate part of course content, the pedagogical discussion of sexual ideas, taboos, behavior or language is reasonable and shall in no event constitute Sexual Harassment. While the discussion of opinions and ideas related to sexuality may cause some individuals discomfort, it is recognized that academic freedom ensures the free exchange of ideas – an essential part of a functioning democracy.
It shall be a violation of this Policy for any employee, student, or agent within the University’s control to engage in Unlawful Discrimination, Sexual Misconduct or Retaliation as defined below. Employee sanctions for violating this Policy may include a letter of counseling, a letter of warning, a no contact order, and suspension or termination from employment. Possible student sanctions are contained in the WCU Code of Student Conduct which is incorporated by reference.
The protections afforded under this policy apply to: (1) all applicants for employment; (2) all applicants for admission to the University; (3) University officers, faculty, staff, and students; (4) persons who serve the University as agents (e.g. volunteers, contractors); and (5) visitors. The University is obligated to respond to reports made under this Policy. The University is also obligated to respond to circumstances of Unlawful Discrimination, Sexual Misconduct or Retaliation for which the University knew or reasonably should have known.
“Protected Status” means characteristics for which an individual is not permitted to suffer undue distinction or unlawful mistreatment as defined below. Those traits include race, color, religion, sex, sexual orientation, gender identity or expression, national origin, age, disability, genetic information, political affiliation and veteran status.
“Unlawful Discrimination” means:
“Reasonable Person” is the viewpoint of a hypothetical individual whose sensibilities, sensitivities and receptiveness to ideas are typical of an individual in the same or similar circumstances.
“Sexual Misconduct” is a type of unlawful discrimination based on gender. It includes Sexual Harassment and Sexual Violence as defined below.
Sexual Misconduct is also defined in the Code of Student Conduct which includes various descriptions of prohibited conduct therein.
“Sexual Harassment” is a type of unlawful discrimination based on gender. In the employment context, behaviors that can lead to Sexual Harassment include but are not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Sexual Harassment is unlawful when it constitutes Quid Pro Quo Sexual Harassment or rises to the level of a Hostile Environment. For example:
With regard to students, Sexual Harassment is defined by the Office of Civil Rights (“OCR”) as any unwelcome conduct of a sexual nature that is sufficiently severe, persistent or pervasive that it unreasonably denies, limits or interferes with an individual’s ability to participate in an educational program or activity (see Hostile Environment). Additionally, Quid Pro Quo harassment occurs when a University employee causes a student to believe that he or she must submit to unwelcome sexual conduct in order to participate in a University program or activity. Sexual Harassment of students is a form of sex discrimination prohibited by Title IX.
Sexual Harassment as defined above may give rise to a Hostile Environment where there is unwanted conduct related to one’s sexual orientation, including being subjected to slurs, demeaning conduct, etc. Mistreatment for failing to conform to one’s gender stereotype can also rise to Sexual Harassment. Finally, unwanted conduct related to one’s gender identity expression may constitute Sexual Harassment.
“Sexual Violence” is a physical sexual act perpetrated against the person’s will or without the victim’s lawful Consent. Examples of sexual violence include forcible rape, unwanted fondling, and sexual contact while an individual is Incapacitated or otherwise unable to grant Consent.
NOTE: Sexual Violence also includes criminal acts as defined by NC Law Article 7B § 14-27.20 et al. “Rape and Other Sexual Offenses.”
“Consent” is approval and permission to engage in mutually agreed upon sexual activity demonstrated by clear actions, words or writings. It is the responsibility of each party to make certain that the other has consented before engaging in sexual activity. Informed consent is freely and voluntarily given and it is mutually understood by all parties involved. An individual who engages in sexual activity when the individual knows, or reasonable should know, that the other person is physically or mental incapacitated has violated this policy. It is not an excuse that the responding party was intoxicated and therefore did not realize the incapacity of the other. If a person is under the age of legal consent, asleep, or Incapacitated as defined, there is no consent. If coercion, intimidation, threats and/or physical force are used, there is no consent. Consent is not to be inferred from silence, passivity, or lack of resistance, and relaying on non-verbal communication alone may result in a violation of this policy. Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be consent to engage in sexual activity. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Consent can be withdrawn at any time and requires an outward demonstration through understandable words or actions that clearly conveys that a party is no longer willing to engage in sexual activity. Once consent is withdrawn, the sexual activity must cease immediately.
“Incapacitation” is when a person lacks the mental and/or physical ability to make an informed, rational judgment about whether or not to consent to engage in an activity due to unconsciousness; intermittent consciousness; or lack of awareness. Incapacitation is a state beyond intoxication from alcohol and/or other legal substances. Incapacitation is determined by specific facts associated with the person’s decision-making ability, awareness of consequences, and ability to make informed decisions regarding their health, safety, wants and needs. A person who is incapacitated is unable to grant Consent.
“Hostile Environment” occurs when one experiences unlawful distinction, preference, or harm as compared to others based on that individual’s Protected Status and that it is sufficiently severe, persistent or pervasive enough to unreasonably interfere with deny or limit: 1) an employee’s or applicant for employment’s access to employment or conditions and benefits of employment (e.g., hiring, advancement, assignment); 2) a student’s or admission applicant’s ability to participate in, access, or benefit from educational programs, services, or activities (e.g., admission, academic standing, grades, assignment, campus housing); or 3) an authorized agent’s ability to participate in an agent activity. A Hostile Environment is one that a reasonable person (objective standard) would find hostile or abusive and one that a complainant under this policy perceives to be hostile or abusive (subjective standard). Hostile environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, the extent to which the conduct was intended to harm, harass or exploit the complainant, and whether the conduct actually and substantially interferes with an employee’s work performance or a student’s ability to participate in or to receive benefits, services, or opportunities in the University’s education programs and activities.
“Quid Pro Quo” is Sexual Harassment consisting of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when - (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or student’s academic success, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions or academic decisions affecting such individual.
“Interim Measures” are temporary actions the University may impose to stabilize a situation where there is a reasonably articulated violation of this Policy. Interim Measures may be imposed to stop suspected and ongoing Sexual Misconduct, Unlawful Discrimination or Retaliation. Interim Measures support the people involved in the allegation, including the reporting party, respondents or witnesses. Care will be taken to minimally disrupt the educational experience while addressing the alleged misconduct. Some measure that may be imposed are: 1) access to counseling services; 2) medical services; 3) a no contact order; 4) a campus no trespass order; 5) academic accommodations that are made with agreement of the appropriate faculty who will not be informed of the specific reason for the request with permission of the student (for example rescheduling exams and assignments, providing alternative course completion options, changes in class schedule); 6) changes in work schedule or job assignment; 7) residence modifications; or 8) any other reasonable action as determined by the Title IX Coordinator taken to minimize the impact of suspected Policy violations or the investigation. The Title IX Coordinator at his or her discretion may impose Interim Measures during either informal or formal resolution of complaints under this Policy.
“Responsible Employee” includes any employee of the University who has been given the duty of reporting incidents of Sexual Violence or any other Sexual Misconduct to the Title IX Coordinator or other appropriate school designee. All University employees are Responsible Employees.
“Retaliation” is mistreatment or any act of reprisal, interference, restraint, coercion, penalty, discrimination, harassment - overtly or covertly - against any applicant for employment, student, employee, volunteer or agent within the University’s control when the person engages in a protected activity. A protected activity includes opposing discrimination or participating in the investigatory process under this policy. Examples of other protected activities include, filing or being a witness to a complaint under this policy or a formal grievance, communicating with a supervisor or manager about unlawful discrimination, answering questions during an investigation, refusing to follow orders that would result in Unlawful Harassment or Sexual Misconduct, requesting a disability accomodation, or availing oneself of rights protected under the Family and Medical Leave Act (“FMLA”).
“Confidential Resources” are offices or agencies, both on campus and off, staffed by trained professionals who can provide counseling, information and support in a confidential setting. Confidential resources will not share information about an individual (including whether that individual has received services) without the individual’s express permission, unless there is a continuing threat of serious harm to the individual or to others or there is a legal obligation to reveal such information (for example, suspected abuse or neglect of a minor). These professionals are available to help an individual make a report to the constituent institution of conduct that violates this policy. The following is a list of confidential resources currently available:
On Campus Resources:
Counseling and Psychological Services (“CAPS”)
225 Bird Bldg.
Western Carolina University
Cullowhee, NC 28723
Non-Emergency Phone: (828) 227-7469
Crisis Clinician: (828) 227-8911
(Students only)
Off Campus Resources:
Western NC 24 Hour Crisis Line: (888) 315-2880
National Suicide Prevention Lifeline: (800) 273-8255
Meridian Health Services
P.O. Box 2187
Sylva, NC 28779
Phone: (828) 631-3973
https://meridianbhs.org
REACH of Jackson/Macon Co.
1895 Old Murphy Rd.
Franklin, NC 28734
Phone: (828) 369-5544
https://www.reachofmaconcounty.org/index.html
A. INFORMAL RESOLUTION OF UNLAWFUL DISCRIMINATION, SEXUAL MISCONDUCT OR RETALIATION
For complaints concerning Unlawful Discrimination, Sexual Misconduct or Retaliation, any party may elect to discuss the problem directly with the person whose behavior is questioned before seeking formal assistance, which is recommended in most circumstances. Confronting the offending party in a conversation or in writing to request that he/she stop engaging in the offensive behavior may resolve the situation. Candid discussion between the parties involved about how a behavior made someone feel can be an empowering experience that overcomes the negative feelings associated with the offending conduct.
The Title IX Coordinator may offer to facilitate informal resolution by acting as a mediator, conducting a limited investigation, working with appropriate University personnel, and recommending further administrative action in order to resolve the complaint.
For any complaint under this Policy, a reporting party may request that his or her identity remain confidential. The University will evaluate that request in the context of the University’s responsibility to provide a safe and nondiscriminatory environment for all students, employees, and third parties in order to determine the steps the University will take to pursue the matter.
Some situations may be so serious that informal resolution may not be appropriate and direct progression to the formal initiation of a complaint may be necessary. For example, if a complaint is directed against a supervisor or administrator who would otherwise play a role in responding to and attempting to resolve the complaint, the employee might not wish to discuss his/her complaint with that supervisor but may elect to discuss the complaint with the next supervisor in a direct line of authority.
NOTE: For applicants to SHRA covered positions and SHRA employees, informal resolution occurs as part of WCU Policy 77 “Grievance Policies and Procedures for SHRA Employees,” sub-section V.A. “EEO Informal Inquiry.”
B. FORMAL RESOLUTION OF UNLAWFUL DISCRIMINATION, SEXUAL MISCONDUCT OR RETALIATION
Procedures provided under this Policy allow for a prompt, thorough, and impartial investigation and adjudication process that provides appropriate procedural safeguards and adequate due process for all parties.
1. Complaints from Applicants, EHRA Non-Faculty Employees, Faculty, Students, Agents and Visitors Against Other Employees, Agents or Visitors (See Below for Complaints from Applicants to SHRA Positions)
(a) Initiating Section V.B.1 Complaints
Complaints should be reported, preferably in writing, to the Title IX Coordinator at 520 HFR Administration Building, Cullowhee, NC, 28723. The Title IX Coordinator may be reached by telephone at (828) 227-7116. Complaints should be made within fifteen (15) calendar days of the conduct giving rise to the complaint to ensure a prompt and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged conduct.
(b) Investigation of Section V.B.1 Complaints
The Title IX Coordinator shall investigate thoroughly and impartially all complaints within forty-five (45) calendar days from the receipt of complaints. The Title IX Coordinator may seek the assistance of other University officials, including the deputy Title IX Coordinators, in situations where there may be actual or perceived conflicts of interest or as otherwise may be necessary to ensure timely, impartial, and complete investigations.
(c) Written Reports /Resolution of Section V.B.1 Complaints
Upon completion of his/her investigation, the Title IX Coordinator shall provide to the applicable Executive Council member a written report of key evidentiary findings, based upon a preponderance of the evidence, whether the alleged conduct constituted a violation of this policy and the Title IX Coordinator’s recommended resolutions pertaining to the complaint. The Title IX Coordinator’s report is deemed a confidential personnel record of the respondent employee and shall not be disclosed except as required or permitted by law. The applicable member of Executive Council shall be responsible for determining what University action, if any, is warranted.
Upon completion of his/her investigation, the Title IX Coordinator also shall provide a written response to: (1) the complaining employee apprising him/her that the investigation is complete and whether the alleged conduct constituted a violation of this policy; and (2) the respondent employee apprising him/her that the investigation is complete and whether the alleged conduct constituted a violation of this policy.
(d) Internal Appeals of Section V.B.1 Complaint Resolution
Both the complaining employee and the respondent may appeal the Title IX Coordinator’s finding(s) and conclusions within fifteen (15) calendar days of receipt of the Title IX Coordinator’s written response. Appeals must be in writing and clearly state the basis for the appeal (i.e., that the findings and conclusions are (i) erroneous; (ii) violate applicable federal or state law or university policies; or (iii) the result of a flawed process. Appeals must be directed to the Director of Human Resources at 220 HFR Administration Building, Cullowhee, NC, 28723. The Director of Human Resources may be reached by telephone at (828) 227-7218. The Director of Human Resources shall respond to the appeal within thirty (30) calendar days of receipt, and may either uphold, overturn, or modify the finding(s). No further appeal by either party shall be permitted.
2. Complaints from Applicants for SHRA Covered Positions and SHRA Employees against Other Employees, Agents or Visitors
Complaints, investigations and appeals regarding prohibited conduct under this policy shall be processed in accordance with University Policy 77, “Grievance Policies and Procedures for SHRA
3. Complaints Against Students Regarding Discrimination, Unlawful Harassment, Unlawful Sexual Misconduct or Retaliation
This policy references the Code of Student Conduct and relevant portions are incorporated by reference herein. The student code exercises the Chancellor’s duty to regulate matters of student conduct in the campus community.
Complaints of this nature should be reported, preferably in writing, to Student Affairs for investigation and appropriate action. The Student Affairs office telephone number is (828) 227-7147, and the office is located in Scott Hall East, Cullowhee, NC 28723. Complaints should be made as soon as possible to ensure a prompt, impartial, and complete investigation.
Complaints should include the name and contact information of the complainant, the specific conduct that is the subject of the complaint, the name and contact information, if known, of the accused individual, and the name(s) and contact information of witnesses or other individuals having direct knowledge of the complaint.
The University Investigation, Resolution and Appeals associated with the same shall be administered in accordance with the WCU Code of Student Conduct, as incorporated herein by reference.
C. REPORTING CRIMINAL ACTS OR SUSPECTED CRIMINAL ACTIVITY TO UNIVERSITY POLICE AND ANONYMOUS REPORTING
Complaints of criminal acts or suspected criminal activity, including sexual violence, may be filed with the University Police. Individuals should report crimes as soon as possible to the University Police Dispatch Emergency Number (828) 227-8911 or the non-emergency number of (828) 227-7301. In addition to investigating complaints of sexual assault, University Police will refer such cases to the Title IX Coordinator or the Student Affairs and will also refer all such cases to the Jackson County District Attorney.
A student may make an anonymous complaint to University Police through its Silent Witness program at: https://www.wcu.edu/discover/campus-services-and-operations/university-police/how-to-report-a-crime/silent-witness-submit-an-anonymous-report.aspx
A student may also make an anonymous complaint to University Police by calling the Police TIPS Line at: (828) 227-8477.
The University Police have adopted Sexual Assault Investigation Policies to provide officers and investigators with guidelines for responding to reports of sexual assault, assisting victims, collaborating with local health and service agencies, and conducting interviews with victims, witnesses, and suspects. Because of the special needs involved in sexual assault investigations, their policy is an all-inclusive document that covers first response, investigation, and prosecution. The department has a Victim Services Office, which may be contacted at: (828) 227-3207 or (828) 227-7301.
In accordance with federal law, the University shall designate a Title IX Coordinator who shall have the following responsibilities:
In all cases except student misconduct, the Title IX Coordinator shall be the primary investigator and adjudicator regarding claims of Unlawful Discrimination, Sexual Misconduct and Retaliation. In cases of student misconduct, the primary investigator is determined under the Code of Student Conduct. The Title IX Coordinator shall appoint deputy Title IX Coordinators, who, in the Title IX Coordinator’s discretion, are qualified by education or experience to assist in the investigation and adjudication of complaints. The Title IX Coordinator and all Deputy Title IX Coordinators shall receive at least two (2) hours of training related to Sexual Misconduct and/or other forms of gender-based discrimination annually. Deputy Title IX Coordinators may be tasked with other related obligations (conducting training, etc.).
The Title IX Coordinator’s investigation shall be impartial and fair. It is the policy of this University that unbiased investigations are in the best legal interests of the University and the Title IX Coordinator shall never take action designed purely to protect University personnel while investigating claims. The University shall honor the complainant’s and respondent’s right to due process by notifying the respondent of the allegation(s) and providing each party an opportunity to respond to the allegation, identify potential witnesses and submit documentation. The Title IX Coordinator shall exercise his or her discretion in conducting the investigation in a timely and efficient manner.
The University hereby establishes a standing Sexual Violence Prevention Committee (the “SVPC”). The SVPC shall be comprised of the following members:
The SVPC shall establish such sub-committees as may be necessary to accomplish its objectives and responsibilities. Membership of such sub-committees may include, at a minimum, faculty representatives appointed by the Provost and student representatives appointed by the Vice Chancellor for Student Affairs or his/her designee.
The SVPC shall have the following responsibilities:
This policy seeks to encourage students, employees and others to report concerns involving discriminatory or harassing personal conduct and accordingly retaliation is prohibited. Any act of reprisal or retaliation, including interference, restraint, coercion, penalty, discrimination, harassment - overtly or covertly - against a student or employee for responsibly reporting under this policy interferes with free expression and violates this policy. Accordingly, individuals who violate this retaliation prohibition may be subject to disciplinary action.
Any University employee who experiences, witnesses, reasonably suspects or receives a written or verbal complaint of an incident of Unlawful Discrimination, Sexual Misconduct or Retaliation related to the workplace shall promptly report it to the Title IX Coordinator. An employee should not presume that the victim or another employee has reported the event unless they have first hand knowledge of the report.
Those employees designated as Campus Security Authorities under University Policy 116 “Clery Act Compliance” are obligated under the law to notify the University Police Department of alleged Clery Crimes that are reported to them (see University Policy 116). All employees are encouraged to report known or suspected crimes to law enforcement to the extent provided by law and according to appropriate professional standards.
All University employees are designated as “Responsible Employees” under Title IX and are legally obligated to report known or suspected incidents of Sexual Misconduct to the Title IX Coordinator.
In some instances, employees with legally recognized professional privileges may not be subject to mandatory reporting under Section IX. The Title IX Coordinator with Legal Counsel shall delineate these individuals’ reporting obligations by an official memorandum to the department.
This policy shall not be used to bring frivolous or false complaints. If a complaint has been made maliciously or in bad faith, disciplinary action may be taken against the person bringing the complaint.
Information gathered in the course of investigations conducted under this policy will be given the full extent of confidentiality accorded by law to employee personnel records and student education records. Any person who, without authorization, reveals such information may be subject to disciplinary action. Disclosure of the content of complaints will be made on a “need to know” basis, depending on the type of investigation and remedial action required by the complaint. In any event, the accused individual will be informed of the specific allegations in the complaint.
The Title IX Coordinator is responsible for routinely and periodically reporting to the Chancellor the number and nature of complaints made under this policy.