Title IX Grievance Procedure - For Employees
SECTION ONE - GENERAL RULES OF APPLICATION
A. Title IX Grievance Procedure
The following procedure describes the steps the University will take to address reports of Sexual Misconduct against an employee that meet the definition of Title IX. Reports of conduct that do not meet the definition of Title IX will be addressed in the Harassment and Discrimination Policy. The complainant has the right to withdraw the complaint and their involvement in the process at any time. This action may limit the University’s ability to respond irrespective of the withdrawal.
B. Effective Date
This Title IX Grievance Policy is effective as of August 14, 2020, and will only apply to formal complaints of sexual harassment brought on or after August 14, 2020.1
SECTION TWO – JURISDICTION
The Director of Human Resources will determine if the Title IX Grievance Process should apply to the Formal Complaint. The Process will apply when all of the following elements are met, in the reasonable determination of the Director of Human Resources:
- The conduct is alleged to have occurred in Iona University’s education program or activity. This includes in-person conduct as well as actions taken virtually, electronically and through social media.
- The conduct is alleged to have occurred on or after August 14, 2020;
- The conduct is alleged to have occurred in the United States;
- The alleged conduct, if true, would constitute covered sexual harassment as defined in the Title IX Grievance Procedure; and
- Complainant is currently participating in, or attempting to participate in, the education programs, employment, or activities of Iona University.
- Respondent is any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment.
If all of the elements are met, the University will investigate the allegations according to this Grievance Process.
B. Definitions of Title IX per the Final Rule
Covered Sexual Harassment:
For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:
- An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo)2
- Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity;
- Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
- Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
- Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York State’s domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of New York State.
- Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
Note: Conduct that does not meet one or more of these criteria may still be prohibited under the Harassment and Discrimination Policy and at the University’s discretion, will be addressed thereunder.
SECTION THREE – INTAKE PROCEDURE
A. Filing a Formal Complaint
The Title IX Grievance Procedure begins with the filing of a Formal Complaint. The Grievance Procedure will be concluded within a reasonably prompt manner, and no longer than one hundred and twenty (120) business days after the filing of the Formal Complaint, provided that the process may be extended for a good reason, including but not limited to administrative delay, the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
To file a Formal Complaint, a complainant must provide the Director of Human Resources a written (including email), signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this grievance procedure if they are currently participating in, or attempting to participate in, the education programs, employment, or activities Iona University.
If a Complainant does not wish to make a Formal Complaint under this grievance procedure, the Director of Human Resources will address the behavior under the Harassment and Discrimination Policy.
Nothing in the Title IX Grievance Policy prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
B. Informal Resolution
After the filing of a formal complaint, the Director of Human Resources may attempt a resolution of the complaint prior to a formal hearing. Participation by the parties in informal resolution is entirely voluntary; the University will not pressure nor compel either party to participate in the process or to agree to any specific terms. In every case, the Director of Human Resources has discretion to determine whether the matter is appropriate for informal resolution and to determine the appropriate terms. Informal resolution does not apply in matters involving students.
To achieve an informal resolution, the Director of Human Resources will consult separately with both parties and recommend to the parties the terms of a potential alternate resolution agreement. Such terms may include any sanctions or remedies that could be imposed by a decision maker after a hearing under these proceedings.
Both parties must agree to the terms before an informal resolution agreement becomes effective. There is no right to appeal an informal resolution agreement.
If respondent accepts responsibility for the allegations of a complaint, the Director of Human Resources will impose appropriate discipline up to and including termination.
Once entry of responsibility is made, respondent may not withdraw from this informal resolution.
C. Notice of Allegations
If not resolved informally, the Director of Human Resources will provide the Notice of Allegations to both parties to the misconduct allegations in the Formal Complaint. Such notice will occur as soon as practicable after the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
A) Contents of Notice
The Notice of Allegations will include the following:
- Notice of the institution’s Title IX Grievance Process and a hyperlink to a copy of the process.
- Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
- A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
- A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney.
- A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source;
- A statement that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
B) Ongoing Notice
If, in the course of an investigation, the University is notified of additional allegations pertaining to the parties that is not included in the Notice of Allegations, and are otherwise covered "sexual harassment” falling within the Title IX Grievance Policy, the Director of Human Resources will notify the parties of the additional allegations by their institutional email accounts or other reasonable means.
Written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate will be provided to a party whose participation is invited or expected.
D. Advisor of Choice and Participation of Advisor of Choice
The parties will be provided with equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.
The advisor is not an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, advisors will not participate directly in the process.
Meetings and hearings will not be intentionally scheduled on dates where the advisors are not available, provided that the advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.
The University will investigate and adjudicate complaints in a prompt timeframe under this grievance procedure and will review requests for reasonable delays. The determination of what is reasonable shall be made by the Director of Human Resources or designee provided reasonable notice is given and the delay does not overly inconvenience other parties.
SECTION FOUR – INVESTIGATION
The Director of Human Resources or designee will conduct the fact-finding. The Director will provide the investigator(s) with the names of the complainant and respondent, and the date, location, and nature of the alleged misconduct.
A party wishing to challenge the participation of the investigator(s) must notify the Director of Human Resources, in writing, within twenty-four (24) hours of delivery of the written notice of investigation providing the specific reason(s) for the party’s objection. The Director of Human Resources will assess whether the investigator(s) will handle complaints impartially and objectively. When appropriate, a different investigator will be appointed.
A. General Rules of Investigations
The Investigator(s) will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.
The University will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations) as described below.
The University and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred.
B. Inspection and Review of Evidence
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:
- Evidence that is relevant, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility;
- Inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
All parties must submit any evidence they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins.
The investigator will provide each party with the evidence gathered in an electronic or designated format.
The parties will have ten (10) business days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will share the written response with the other party and will consider the parties’ written responses before completing the investigative report.
Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.
C. Inclusion of Evidence Not Directly Related to the Allegations
Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the Formal Complaint will be included in the appendices to the investigative report.
D. Investigative Report
The investigator will create an investigative report that fairly summarizes relevant evidence, will provide that report to the parties at least ten (10) calendar days prior the hearing in an electronic or hard copy format for each party’s review and written response.
The investigative report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence.
Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove and disprove the allegations - relevant evidence) will be referenced in the investigative report.
SECTION FIVE – HEARING PROCEDURE
A. The Title IX Grievance Hearing
After complainant and respondent have reviewed the investigative report, the Title IX Coordinator 3 will notify both parties of the date, time and location of the hearing and the names of the Hearing Committee. The Hearing Committee will be comprised of one to three Administrative Hearing Officers. No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case. Complainant and respondent may challenge a hearing committee member by providing a written reason to the Title IX Coordinator within twenty-four (24) hours of delivery the hearing notice. The Title IX Coordinator will review and evaluate the objection and may replace the Committee member when appropriate.
A) GENERAL RULES OF HEARINGS
The University will hold a live hearing conducted with all parties physically present in the same geographic location, or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through a video conferencing option such as Zoom. This technology will enable participants simultaneously to see and hear each other. At its discretion, the University may delay or adjourn a hearing based on technological errors not within a party’s control.
All proceedings will be recorded using Zoom record features or other method determined by the Title IX Coordinator. That recording or transcript will be made available to the parties for inspection and review.
B) HEARING PROCEDURES
For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:
- Administrative Hearing Officer will open and establish rules and expectations for the hearing;
- The Parties will each be given the opportunity to provide opening statements;
- Administrative Hearing Officer will ask questions of the parties and witnesses;
- Parties will be given the opportunity for live cross-examination after Administrative Hearing Officer conducts its initial round of questioning. During the parties’ cross-examination, Administrative Hearing Officer will have the authority to pause cross-examination at any time for the purposes of asking the Administrative Hearing Officer’s own follow up questions; and any time necessary in order to enforce the established rules of decorum.
- Should a party or the party’s advisor choose not to cross-examine a party or witness, the party shall affirmatively waive cross-examination through a written or oral statement to the Administrative Hearing Officer. A party’s waiver of cross-examination does not eliminate the ability of the Administrative Hearing Officer to use statements made by party or witness that was not cross examined.
C) PARTICIPANTS IN THE LIVE HEARING
Live hearings are not public. The University reserves the right to have counsel of its choice present at the hearing. The following individuals permitted to participate in the hearing are:
COMPLAINANT AND RESPONDENT
- The parties cannot waive the right to a live hearing.
- The University will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
- If a party does not submit to cross-examination, the decision-maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
- The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.
- The parties and advisors and witnesses will maintain appropriate decorum and may be asked to leave the hearing if they fail to do so after being asked.
ADVISOR OF CHOICE
- The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
- The advisor may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
- The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the University will select an advisor to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
- The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
- The advisor is not prohibited from being a witness in the matter.
- If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf.
- Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation.
- If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing.
- A witness’s identity cannot remain anonymous. In most cases, the identity of the person who provided certain information is a necessary component and others will need to be able to fully understand what was provided.
- Parties may be allowed to call character witnesses and “expert witnesses”. Both will be subject to cross examination.
D) LIVE CROSS-EXAMINATION PROCEDURE/RELEVANCE
- CROSS EXAMINATION: Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.
- RELEVANCE: Before any cross-examination question is answered, the Administrative Hearing Officer will determine if the question is relevant.
The following may be deemed irrelevant:
- questions regarding privileged information.
- undisclosed medical records, including about a parties’ mental health.
- duplicative questions if they have been asked and answered.
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:
- such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
If a question is relevant but offered in an abusive or argumentative manner, the decision-maker has the discretion to ask the advisor to rephrase the question in an appropriate manner, consistent with the institution’s decorum policy for hearings.
E) Review of Transcript/Recording
The recording of the hearing will be available for review by the parties within five (5) business days unless there are any extenuating circumstances. The recording of the hearing will not be provided to parties or advisors of choice.
F) Complainant and Respondent Impact Statements
Promptly after the conclusion of the hearing, both the complainant and respondent will be given access to the record of the hearing and offered an opportunity to provide a concise impact statement before final determination. The record of the hearing may not be copied.
This impact statement must be provided to the Title IX Coordinator who will provide it to the opposing party as well as the Hearing Committee.
G) Determination Regarding Responsibility
The Hearing Committee will reach a decision, based on majority vote, on whether the respondent has violated the University policy and provide the decision to the Director of Human for the disciplinary sanction.
- Standard of Proof
Iona University uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Policy occurred.
- Components of the Determination Regarding Responsibility
The written determination regarding responsibility and disciplinary sanction will be issued simultaneously to all parties through their institution email account, or other reasonable means, as necessary. The determination will include:
- Identification of the allegations potentially constituting covered sexual harassment;
- A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding which policy the respondent has or has not violated.
- For each allegation:
- A statement of, and rationale for, a determination regarding responsibility;
- A statement of, and rationale for, any disciplinary sanction imposed; and
- The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal (described in “Appeal”).
SECTION SIX - SANCTIONS
Remedial and Disciplinary Action: The Director of Human Resources (and if appropriate, key supervisory personnel) will communicate as appropriate with the individual complaining and the individual responding any resulting remedial action and/or discipline imposed. When the University finds that a violation of this policy has occurred, appropriate and timely disciplinary action will be taken, up to and including separation from the University. The University will follow applicable College procedures including those provided in the Faculty Handbook, in taking any disciplinary action.
In determining appropriate sanctions, the Director of Human Resources will consider the employee’s employment history, performance, and the nature and severity of the violation(s).
The Director of Human Resources will notify both parties of the outcome of the hearing and any sanctions imposed. The determination letter will contain the following information: (i) the name of the Respondent; (ii) whether the Respondent has been found responsible or not responsible for specific violation(s) of this Policy; (iii) a list of the possible sanctions ; (iv) the sanctions actually imposed; (v) the rationale for the sanctions imposed; (vi) the University’s appeal process; (vii) any change to the results that occur prior to the time that the results become final; and (viii) when the results become final.
The University does not publicly release underlying information regarding investigations unless required by law.
SECTION SEVEN - APPEAL
Either party may appeal the Hearing Committee’s determination and/or the disciplinary decision. A party has four (4) grounds under which to appeal the University’s determination:
- procedural irregularity affected the outcome;
- new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome; and/or
- the investigator, or decision-maker had a conflict of interest or bias that affected the outcome
- the sanctions are not consistent with past practices or the severity of the alleged sexual harassment.
Final sanctions are in effect until any timely appeal of the decision is resolved.
A party wishing to appeal the findings of the Hearing Committee and/or sanctions imposed must file an appeal within seven (7) business days of delivery of the decision letter of the Hearing Committee’s finding and the sanctions. The appeal must contain the party’s grounds for the appeal. The party should submit copies of any and all material the party wishes to provide as evidence for the appeal. Additionally, the party can submit a written statement that is no longer than five (5) single-spaced typed pages, using size 12 Times New Roman font and 1-inch margins.
If either party submits an appeal, the Title IX Coordinator will notify the other party after receipt of the appeal. The non-appealing party is given an opportunity to review the appealing party’s submissions and material and submit a written response. The response can be no longer than five (5) single-spaced typed pages, using size 12 Times New Roman font and 1-inch margins. The written response must be submitted within seven (7) business days after the appealing party submits a formal appeal.
The Title IX Coordinator will select a three-person committee (“Appeals Committee”), which shall not include members of the Hearing Committee. The Appeal Committee will first evaluate whether the criteria for appeal as stated above is met. If criteria are not met, the appeal will be dismissed. Except for appeals brought under (ii) above, the Appeal Committee’s entire review process will be based on the party’s appeal, the non-appealing party’s response to the appeal, if any, and the Hearing Committee’s record of the case. Otherwise, no additional evidence is allowed, and no witnesses may be heard.
The Appeals Committee will make a final determination on the appeal and will report such determination in writing. The Appeals Committee shall review the appeal, the non-appealing party’s response to the appeal, if any, the record of the case, and, if applicable, any new evidence pursuant to (ii) above and issue a final determination letter to the Respondent and the Complainant. The Appeals Committee shall render its decision in writing promptly after review of the materials provided. Should an Appeal Committee determine that one or more of the criteria of a successful appeal has been met, that Committee shall:
- dismiss the finding;
- modify the finding; or
- refer the matter to the appropriate hearing body for further review.
Once it has been determined that the appeal has been denied or modified, the matter is concluded.
SECTION EIGHT - REVOCATION BY OPERATION OF LAW
Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Code of Conduct/ Sexual Misconduct Policy and Sexual Misconduct Grievance Procedure.
Refer to Sexual Misconduct Policy PART IV - DEFINITIONS AND HEARING CONSIDERATIONS
- On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:
- Defines the meaning of “sexual harassment” (including forms of sex-based violence)
- Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment, and
- Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.
See, 85 Fed. Reg. 30026 (May 19, 2020). The full text of the Final Rule and its extensive Preamble are available here.
- Employee complaints should be brought under the Harassment and Discrimination Policy
- For purposes of the policy, the term “Title IX Coordinator” includes their designees.