Pol-Title IX Employee Sexual Misconduct
policy Title IX 9 employee sexual misconduct dean of students modified Fri Apr 09 2021 20:01:57 GMT-0400 (Eastern Daylight Time)
University of Louisville
Title IX Employee Sexual Misconduct
August 14, 2020
This policy applies to all members of the University of Louisville community (including employees, students, non-University employees participating in University related activities or programs, third party contractors and vendors, and visitors) when the Respondent is an employee and the jurisdictional requirements of Title IX are met.
REASON FOR POLICY
To inform the members of the University community about the University’s policy and commitment to prohibiting and responding to Title IX employee Sexual Misconduct and to outline procedures for the handling of Sexual Misconduct complaints made against University employees. This policy outlines expectations, reporting options, and resources for all members of the University community regardless of sexual orientation or gender identity.
The University of Louisville (University) is committed to fostering an atmosphere free from Sexual Misconduct. The University will take prompt and appropriate action to eliminate Sexual Misconduct, prevent recurrence, and remedy any effects on the Complainant or those involved in the complaint process. If, in the process of the investigation, the University determines that the alleged conduct does not fall within the scope of this or other University policies, both the Complainant and the Respondent will be notified in writing.
Any University employee who is the victim of or been a witness to Sexual Misconduct in the workplace should promptly notify Employee Relations and Compliance Office at 502-852-6258 or EMRelate@louisville.edu. Prompt notification to one or more of the individuals identified below under “Reporting a Sexual Misconduct Complaint” is also sufficient. In an emergency, individuals should contact University Police at 502-852-6111 or call 911.
When the University finds the Respondent has violated this policy, disciplinary or other administrative action will be issued. A policy violation is not required in order to provide certain Supportive Measures for the Complainant reporting the concern. Possible Supportive Measures include but are not limited to the following: mutual "no contact orders," changes to academic, living or working situations as appropriate, counseling services, security escort services, medical services, academic support services, and notification of the right to file a complaint with local law enforcement. The Title IX Coordinator, Deputy Title IX Coordinators, or their designee will provide information regarding this policy, complaint resolution procedures, and offer options for addressing a complaint.
This policy and associated procedures are not intended to restrict any rights that would otherwise be protected by the First Amendment of the U.S. Constitution; deprive a person of any rights that would otherwise be protected under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution; or restrict any other rights guaranteed by the U.S. Constitution.
The University will use the investigation, hearing, and appeals processes outlined below for cases when the Respondent is an employee of the University and that meet the jurisdictional requirements of Title IX. If the case does not meet the jurisdictional requirements for Title IX, it may be administered through other University processes, such as the Employee Sexual Misconduct Complaint Process (non-Title IX) for cases that fall within Title VII or the Employee Code of Conduct.
Once the University has Actual Knowledge of an alleged violation, jurisdiction under Title IX requires that any act prohibited occur:
- Against a person within the United States, and
- Within the University’s education programs or activities including locations, events, or circumstances over which the University exercises substantial control over both the Respondent and the context in which the Sexual Misconduct occurs. This includes any building(s) owned or controlled by a student organization that is officially recognized by the University
The University prohibits retaliation against any person or individual for interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this policy. Disciplinary action may be taken against any person who files a Sexual Misconduct complaint in bad faith, or who maliciously or knowingly files a false complaint. The Employee Relations and Compliance Office will investigate any reported retaliation against any individual who is a party to or participates in a complaint process under this policy. Individuals who feel they are victims of retaliation as prohibited by this policy shall contact Employee Relations and Compliance Office at 502-852-6258 or EMRelate@louisville.edu.
ACTUAL KNOWLEDGE (pursuant to Title IX) means notice of Sexual Misconduct or allegations of Sexual Misconduct to any University Official who has authority to institute corrective measures on behalf of the University. The Actual Knowledge standard is not met when the only University Official with Actual Knowledge is the Respondent.
ADVISOR is an individual required to accompany the Complainant and Respondent for the purpose of cross-examining the opposing party and any witnesses at the hearing. The Advisor cannot be a party to the complaint.
COMPLAINANT is an individual who is alleged to be the victim of conduct that could constitute Sexual Misconduct.
CONSENT means freely given agreement by a person with capacity to engage in the sexual activity at issue. A person who is incapacitated (as defined below) lacks capacity and cannot give effective Consent. In order for individuals to engage in sexual activity of any type, all involved individuals must Consent to such activity prior to and throughout any sexual encounter. Consent to one sexual act does not constitute Consent to any other such acts; parties to a sexual encounter must ensure that they have the affirmative Consent of the other individual(s) involved in each sexual act. Affirmative Consent may manifest itself differently depending on the context. “No" always means “no." Words or perceptible actions other than an explicit “yes" may be sufficient to indicate Consent, depending on the totality of the circumstances of each case. Regardless of the circumstances, Consent to any form of sexual activity can be withdrawn at any time, by any party to a sexual encounter, at any point during the encounter. This is true regardless of what sexual acts (or with whom) the individual(s) in question may have engaged in or agreed to previously, and regardless of the nature of the relationship between the parties.
DATING VIOLENCE means violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; (B) where the existence of such a relationship shall be determined based on a consideration of the following factors:
Whether or not a dating relationship exists is determined (1) by the length of the relationship, (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.
This includes threats, assault, property damage, and violence or threat of violence to one’s self or to pets of the romantic or intimate partner when used as a method of coercion, control, punishment, intimidation, or revenge.
DOMESTIC VIOLENCE is defined as 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 the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youthvictim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
FORMAL COMPLAINT is a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Misconduct against a Respondent and requesting that the University investigate the allegation of Sexual Misconduct. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the University with which the Formal Complaint is filed.
HEARING OFFICER is a person (who may be a third-party) designated to preside over a hearing conducted pursuant to this policy. The Hearing Officer will make all determinations of relevancy, serve as the decision maker, evaluate the evidence presented, control the tone and tenor of the hearing and make findings of fact and conclusions as to whether Sexual Misconduct or violations of University policy occurred.
INVESTIGATOR is a person or persons designated by the University to conduct and/or oversee the investigation of a Formal Complaint.
INCAPACITATION is a state in which a person cannot make rational decisions as to whether or not to engage in sexual activity because the person lacks the ability to give knowing Consent (i.e., to understand the "who, what, when, where, why, or how" of the sexual interaction). A person may be incapacitated due to mental disability, being asleep, unconsciousness, involuntary physical restraint, or from the effects of alcohol or other drugs, or because they are below the minimum age of consent in the state where the sexual activity occurred. It is important to note that while a person can be incapacitated by intoxication, intoxication (in which case a person is under the influence of alcohol or drugs) does not constitute Incapacitation unless it renders the person unable to Consent as described herein. In every case, the facts are evaluated to assess whether the person in question was capable of providing Consent, and whether a reasonable person in the parties’ positions would perceive the person as being capable or incapable of providing Consent.
RESPONDENT is an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Misconduct.
SEXUAL ASSAULT means any forcible and non-forcible sex offenses from the Federal Bureau of Investigation’s classification system, to include rape, sodomy, sexual assault with an object, fondling, incest and statutory rape.
- Rape is the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. For purposes of this policy carnal knowledge is the act of having bodily connections with another; sexual intercourse. As an example, there is “carnal knowledge” if there is the slightest penetration of the vagina by the sex organ of the other person. Attempted Rape is included.
- Sodomy is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Sexual Assault with an Object is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.
- Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by the law of the jurisdiction.
- Statutory Rape is sexual intercourse with a person who is under the statutory age of consent as defined by the law of the jurisdiction.
SEXUAL HARASSMENT means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the University conditioning the provision of an aid, benefit or service of the University on an individual’s participation in unwelcome sexual conduct (often referred to as quid pro quo);
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or
- Sexual Assault, Dating Violence, Domestic Violence or Stalking (otherwise defined herein)
SEXUAL MISCONDUCT is an omnibus term that applies to all misconduct covered by this policy. Sexual Misconduct includes Sexual Harassment (includes quid pro quo and hostile environment); Sexual Assault; Domestic Violence; Dating Violence; and Stalking.
STALKING is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress. Stalking behaviors may include persistent patterns of leaving or sending the person(s) unwanted items or gifts ranging from seemingly romantic to bizarre, following the person(s), or lying in wait for the person(s), harassing the person(s) via the internet or other forms of online and/or electronic communications (i.e., cyberstalking), or interferes with a person’s property.
SUPPORTIVE MEASURES mean non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter Sexual Misconduct. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
UNIVERSITY OFFICIAL is either the Title IX Coordinator or Deputy Title IX Coordinators as listed in the procedures section of this policy.
REPORTING A SEXUAL MISCONDUCT COMPLAINT
The purpose of reporting Sexual Misconduct is to inform the University that Sexual Misconduct may be occurring or may have occurred and to provide information sufficient to identify the parties involved. Any person with knowledge of Sexual Misconduct may report the information to any of the following:
Title IX Coordinator and Deputy Title IX Coordinators:
Dr. David W. Parrott, Title IX Coordinator
2100 S. Floyd Street
Student Activities Center – W301
Louisville, KY 40208
Phone: (502) 852-5787
Dr. Angela B. Taylor, Deputy Title IX Coordinator
Assistant Provost and Assistant Dean of Students
Director of Student Rights and Responsibilities
2100 S. Floyd Street
Student Activities Center – W301
Louisville, KY 40208
Phone: (502) 852-5787
Donna Ernst, Deputy Title IX Coordinator
Assistant Director, Employee Relations
1980 Arthur Street
Louisville, KY 40208
Phone: (502) 852-6538
Oscar Chavez, Deputy Title IX Coordinator
Lieutenant, Compliance/External Support
UofL Police Department
Floyd Street Parking Garage
Louisville, KY 40292
Phone: (502) 852-7233 or 852-6111
Some forms of Sexual Misconduct may violate state and federal laws, and a Complainant or Respondent may choose to contact the following agencies regarding their complaint:
Kentucky Commission on Human Rights
332 W. Broadway, 7th Floor
Louisville, KY 40202
Phone: (502) 595-4024 or (800) 292-5566
Federal Equal Employment Opportunity Commission
600 Dr. Martin Luther King, Jr. Place, Suite 268
Louisville, KY 40202
Phone: (800) 669-4000
TTY: (800) 669-6820
Philadelphia Office of Civil Rights
U.S. Department of Education
The Wanamaker Building
100 Penn Square East, Suite 515
Philadelphia, PA 19107-3323
Phone: (215) 656-8541
TDD: (877) 521-2172
Informal Complaint. An informal complaint of Sexual Misconduct may be made to the University by any person. If the complaint involves an employee as the respondent, the Employee Relations and Compliance Office should be promptly notified at 502-852-6258 or EMRelate@louisville.edu, but notice to any University Official is appropriate. A University Official or designee will promptly reach out to the Complainant to discuss the availability of Supportive Measures and explain the process of filing a Formal Complaint. The University’s response to the complaint must treat Complainants and Respondents equitably by offering Supportive Measures and by following the grievance process before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures against a Respondent.
Formal Complaint. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activities of the University. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, or by email, by using the contact information provided herein. The complaint must include the physical or digital signature of either the Complainant or the Title IX Coordinator in order to meet the requirements of a Formal Complaint. When the Title IX Coordinator signs the Formal Complaint, the Title IX Coordinator is not the Complainant and is not otherwise a party.
Time Period. Prompt reporting of a complaint to a University Official is strongly encouraged to allow timely response and resolution. The University is obligated to evaluate any allegation of Sexual Misconduct brought to its attention and respond if required by this policy.
Confidentiality. The University will maintain as confidential Sexual Misconduct complaints and the parties involved to the extent maintaining confidentiality would not impair the University’s ability to adequately evaluate, respond to, and investigate the allegations raised in the complaints.
The primary objective of the informal resolution process is to resolve the conflict between the parties and prevent any future Sexual Misconduct from occurring. The informal resolution process is not permitted if the complaint involves allegations that an employee engaged in Sexual Misconduct against a student. In all cases, the Deputy Title IX Coordinator or designee will have discretion to determine whether informal resolution is appropriate given the circumstances.
Informal resolutions are voluntary and are generally pursued when both parties, having been fully informed of all available options, have both voluntarily and in writing explicitly requested an informal resolution. The University in its sole discretion will take the parties’ requests to utilize the informal process under advisement and make the final determination as to the use of the informal process. Informal resolution will only be offered after a Formal Complaint has been filed.
The Deputy Title IX Coordinator or designee will serve as the facilitator of the informal resolution process. If at any time the Deputy Title IX Coordinator or designee finds the informal resolution process is not beneficial or advancing resolution, the case can be referred back to the Investigator to begin or resume the investigative process. Similarly, either party can ask to end the process at any time before its completion and proceed to the investigative process. If an informal resolution process is ended without resolution, any information obtained or statements made during the informal resolution process may be used in a subsequent formal resolution process and hearing, but may not be used to prove responsibility. Once a complaint has been resolved through an informal resolution process, the matter will be closed.
INTERIM AND SUPPORTIVE MEASURES
The University takes steps to ensure equal access to its education programs and activities and protect the Complainant and Respondent as necessary, including interim and Supportive Measures before the final outcome of an investigation. The University will take these steps promptly once it has notice of a Sexual Misconduct allegation and will provide equitable access to the parties. The University will also provide the parties with information on Title IX rights and any available resources, such as victim advocacy, housing assistance, academic support, student financial aid, counseling, visa and immigration services, disability services, health and mental health services, and the right to report a crime to campus or local law enforcement. The University will maintain as confidential any Supportive Measures provided to the parties, to the extent that maintaining such confidentiality would not impair the ability of the University to provide the Supportive Measures.
While the University must view the Respondent as not responsible for the alleged Sexual Misconduct until a determination regarding responsibility is made at the conclusion of the complaint process, there may be extenuating circumstances where safety concerns require immediate action, such as an interim suspension. Such interim measures can only be taken after an individualized safety and risk analysis determines that there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Misconduct that justifies removal. In the case of an interim suspension, the Respondent will be notified and have an opportunity to challenge the decision via the grievance procedures set forth in The Redbook. The University always retains discretion to place an employee on paid leave, irrespective of whether there is an immediate threat to the physical health or safety of any student, so long as such leave is in accordance with the provisions of The Redbook.
TITLE IX EMPLOYEE SEXUAL MISCONDUCT COMPLAINT PROCESS
There are three separate phases in the Employee Title IX Complaint Process: (1) the investigation phase, (2) the hearing phase (as needed), and (3) the appeal phase (as needed).
A. Investigation Phase
Upon receipt of a Formal Complaint, the University will provide written notice to the parties who are known to include:
- Notice of the University’s process, including any informal resolution process.
- Notice of the allegations of Sexual Misconduct as defined in this document including sufficient details known at the time and with sufficient time to prepare a response before any initial interview.
- Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting Sexual Misconduct 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 process.
- Advisement to the parties that they may have an Advisor of their choice attend the hearing for the purpose of cross-examining the opposing party and opposing party’s witnesses at the hearing.
- Advisement to the parties that if a party does not choose to bring his/her own Advisor, and if timely requested, the University will provide the party an Advisor for the limited purpose of conducting cross-examination at the hearing.
- Advisement to the parties that they may consult with anyone of their choosing to prepare for the hearing and may have one person accompany them to any portion of the investigative process that the party participates in.
- Any provision in the University’s Employee Code of Conduct or Code of Student Conduct that prohibits knowingly making false statements or knowingly submitting false information during an investigation, hearing or appeal phase of a complaint process.
- Notice of the University’s policy on Duty to Report and Non-Retaliation.
- Notice that if, in the course of the investigation, additional allegations relating to violations of Title IX about the Complainant or Respondent are discovered, parties whose identities are known will be notified.
The University may consolidate Formal Complaints as to allegations of Sexual Misconduct against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Sexual Misconduct arise out of the same facts or circumstances.
Dismissal of Complaints. The Investigator must evaluate each Formal Complaint that is filed to determine whether it meets the jurisdictional requirements to proceed through the formal Title IX investigative process. When a complaint is dismissed, the University will send written notice of the dismissal and reason(s) for the dismissal simultaneously to the parties. Either party may appeal the dismissal of the Formal Complaint or dismissal of any sexual misconduct allegation in the Formal Complaint. See Section C: Appeal Phase for details. The University reserves the right to address the alleged conduct in a dismissed Formal Complaint utilizing other University policies and processes, such as the Employee Sexual Misconduct Complaint Process (non-Title IX) for cases that fall within Title VII and the Employee Code of Conduct.
Mandatory Dismissal. The University is required to dismiss the Formal Complaint if, at any point, the University determines that the conduct alleged in the complaint: 1) would not constitute Sexual Misconduct, as defined in this policy, even if proved; 2) did not occur in the University’s education program or activity; or 3) did not occur against a person in the United States.
Permissive Dismissal. The University may dismiss the Formal Complaint or any allegations therein if, at any time during the investigation or hearing: 1) a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; 2) the Respondent is no longer enrolled or employed by the University; or 3) specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
Investigation. Upon receipt of the Formal Complaint, the Investigator will promptly acknowledge receipt and send written notice of the allegations to both parties. The investigation shall begin with a presumption that the Respondent is not responsible for the alleged conduct. The burden of gathering evidence sufficient to reach a determination regarding responsibility rests with the University. This information gathering process will be completed as expeditiously as possible. Absent extenuating circumstances, the investigation should be completed within 45 business days of receipt of the Formal Complaint. If there is a need for a temporary delay or a limited extension of timeframes for good cause, the Investigator shall send written notice to the parties of the delay or extension and the reasons for the action.
Party Interviews. The investigation should generally begin with a request for a meeting with the Complainant, followed by a request for a meeting with the Respondent. The requests shall be in writing and include the date, time, location and purpose of the interview. The request should be sent with sufficient time for the party to prepare to participate. The Investigator may request the party provide a written statement at least three business days prior to the meeting. The meetings with the Complainant and the Respondent will be audio and/or video recorded. The parties may bring any one person of their choice to the meeting with the Investigator; however, this person may not attend the meeting in place of the party. Advisors and non-parties have no role in the investigative process except to confer with, support and give advice to the respective party in a quiet, confidential and non-disruptive manner. Any requests for accommodation or for language assistance must be made to the University at least three business days in advance of the interview.
Witness Interviews. The University must provide equal opportunity for the parties to present fact and expert witnesses and other information that could support or refute the alleged responsibility of Respondent. The Investigator should request interviews with the witnesses presented by the parties or otherwise believed to have relevant information. The requests to witnesses should be in writing and include the date, time, location, and purpose of the interview. The request should be sent with sufficient time for the witness to prepare to participate. The Investigator may request the witness provide a written statement at least three days prior to the meeting. The interviews with witnesses will be audio and/or video recorded. Any requests for accommodation or for language assistance must be made to the University at least three business days in advance of the interview.
Other Evidence. Additional information may also be gathered, such as records and documents deemed necessary. However, the University cannot access, consider, disclose, or otherwise use a Complainant or Respondent’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party’s voluntary, written consent to do so.
Restrictions. The University cannot impose any restrictions on the ability of the parties to discuss the allegations or gather evidence throughout the investigative process. Nor can the University use questions or evidence throughout the investigation that constitute or seek disclosure of information protected under a legally recognized privilege unless the person holding the privilege has waived the privilege.
Review of the Evidence. Upon completion of the investigation, the Investigator shall provide both parties and their Advisors copies of any evidence directly related to the allegations, in electronic format or hard copy. The parties and their Advisors are prohibited from using any of the evidence for any purpose other than preparing for and participating in the hearing. This includes any evidence that may support or refute the responsibility of the Respondent, but also includes any evidence the University does not intend to rely on in reaching a determination regarding responsibility. Parties will have 10 business days to inspect, review, and respond to the evidence. Any evidence that the parties intend to rely on at the hearing must be provided to the Investigator for consideration or it cannot be used at the hearing.
Final Report. After considering all of the evidence and any responses from the parties, the Investigator shall issue a final report. The report should fairly summarize the relevant information and evidence collected but will not make factual findings or a determination regarding whether the policy is violated. The report shall state that either 1) the jurisdictional elements have been met and the matter will proceed to hearing or 2) the complaint will be dismissed and the reason for such dismissal. The Investigator shall consult with the Title IX Coordinator prior to the dismissal of any Formal Complaint. If the matter will proceed to hearing, the final report will state the charges to be addressed at hearing and set a hearing date that is at least 10 business days from the date the report is issued, but absent extenuating circumstances, no more than 30 days out. If the matter is dismissed, the final report shall include information regarding the opportunity to appeal.
B. Hearing Phase
If the Investigator determines the jurisdictional elements of Title IX have been met, the University will provide for a live hearing where the parties can present relevant evidence to a Hearing Officer. After consideration of all relevant evidence, the Hearing Officer will make a determination as to responsibility of the Respondent.
Hearing Officers. Hearing Officers are retired judges or experienced attorneys who have contracted with the University to preside over Title IX hearings. Parities may not communicate with the Hearing Officer outside the presence of the other party.
Standard of Proof. The Hearing Officer will make findings of fact and conclusions as to whether Sexual Misconduct or violations of University policy occurred using a preponderance of evidence standard. Preponderance of the evidence means that the evidence supports that a given allegation is more likely to be true than not true.
Location. Hearings will generally take place on the University campus, but may be conducted virtually at the Hearing Officer’s discretion. The University will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the Hearing Officer and parties to simultaneously see and hear the party or the witness answering questions. If any party fails to appear for the hearing, the hearing will proceed in the party’s absence. If the failure to appear is due to extenuating circumstances, the Hearing Officer has the discretion to continue the hearing. All hearings will be audio and/or video recorded and made available to parties for inspection and review.
Advisors. In addition to cross-examining the witnesses at the hearing, the Advisor may confer and give advice to their party in a quiet, confidential and non-disruptive manner. Any Advisor who refuses to comply with the University’s rules of decorum or acts disrespectfully or abusively during a hearing may be removed from the hearing at the discretion of the Hearing Officer. In that event, the party may substitute a different Advisor (if immediately available) or the hearing will be continued.
Hearing Structure. The rules of evidence and civil procedure do not apply to the hearing process. The Hearing Officer will be the ultimate decision maker on relevancy of questions or concerns raised by the parties during the hearing regarding witnesses, exhibits, testimony, procedure, etc. The Hearing Officer may not draw any inferences regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer questions. The parties may make opening statements. The Complainant will present witnesses and evidence first, followed by the Respondent. The Hearing Officer shall have discretion to call witnesses other than those presented by the parties and may question any party or witness directly, irrespective of questions that may be posed by the Advisors. Following the completion of all testimony, the parties may make a closing statement.
Cross-examination. Cross-examination must be conducted directly, orally and in real time by a party’s Advisor and never by a party. Cross-examination questioning of all witnesses must be respectful and in a non-abusive manner. The Hearing Officer must ensure that only relevant questions are posed during cross-examination. If the Hearing Officer deems a question not relevant, s/he must explain that decision. If a party or witness does not submit to cross-examination at the live hearing, the Hearing Officer may not rely on any statement of that party or witness in reaching a determination of responsibility.
Post Hearing. After evaluating the evidence presented at the hearing, the Hearing Officer shall issue a written determination regarding responsibility. The written determination must include: 1) identification of the allegations potentially constituting Sexual Misconduct; 2) identification of the allegations potentially supporting other charges; 3) 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 evidence, and hearings held; 4) findings of fact supporting the determination; 5) conclusions regarding application of the University’s Employee Code of Conduct to the facts; 6) a statement and rationale for the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the University imposes on the Respondent and whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided by the University to the Complainant; 7) the University’s procedures and permissible bases for the parties to appeal. The written determination must be issued to the parties simultaneously. Absent extenuating circumstances, the written determination should be issued within 30 business days of the completion of the hearing.
Sanctions. Upon a finding of responsibility by the Hearing Officer, the University will recommend the appropriate sanctions to the Hearing Officer for inclusion in the written determination of responsibility. Persons found to have violated the provisions set forth in this policy will be subject to disciplinary action and penalties as set forth in the University’s policies and procedures outlined in The Redbook and the Staff Handbook. These penalties include, but are not limited to, suspension, demotion and/or termination. No disciplinary action may be taken against an employee until the appeal process is concluded. Any final disciplinary action imposed on the Respondent is subject to the grievance process set forth in The Redbook.
C. Appeal Phase
Both parties have the right to appeal the dismissal of a Formal Complaint and/or a determination regarding responsibility.
Bases for Appeal. The bases for appeal include: 1) a procedural irregularity that affected the outcome of the matter; 2) new evidence that was not reasonably available at the time of the determination regarding responsibility or dismissal that could affect the outcome of the matter; 3) whether there was sufficient information presented at the hearing to establish, by a preponderance of the evidence, that Sexual Misconduct occurred; and 4) the Title IX Coordinator, Investigator or Hearing Officer had a conflict of interest or bias for or against the Complainant or Respondent generally or the individual Complainant or Respondent that affected the outcome of the matter.
Notice of Appeal. A written notice of appeal must be submitted electronically to the appeal officer within 10 business days of notice of the dismissal or the issuance of the written determination of responsibility. The notice of appeal should explicitly state the bases for appeal and an explanation supporting the bases for appeal. Upon receipt of the notice of appeal, the appeal officer must promptly notify the other party in writing that an appeal has been filed and provide the other party reasonable time to submit a written statement in support of or challenging the outcome.
Final Decision. The appeal officer must issue a written determination describing the result of the appeal and the rationale for the result. The appeal officer may uphold the dismissal or determination of responsibility, may overturn the dismissal or determination of responsibility, may modify the determination of responsibility (including sanction) in whole or in part, may remand the matter for further investigation and/or hearing, or request additional information before making a decision. The written determination must be issued to the parties simultaneously. The decision of the appeal officer is final. The determination of responsibility becomes final either on the date that the University provides the parties with written determination of the result of the appeal, if an appeal is filed, or the date on which an appeal would no longer be considered timely, if an appeal is not filed.
The Title IX Coordinator and Deputy Title IX Coordinators have oversight responsibility of all Sexual Misconduct complaints under this policy.
The Employee Relations and Compliance Office is responsible for interpretation and implementation of this policy and the associated procedures and processes.
The Employee Relations and Compliance Office is responsible for evaluation, response, and determination of investigation of complaints of Sexual Misconduct when the Respondent is a University employee.
The Dean of Students Office is responsible for evaluation, response, and determination of investigation of complaints of Sexual Misconduct when the Respondent is a student.
For complaints of Sexual Misconduct that do not involve University employees or students, contact University Police at (502) 852-6111 or 911.
Associate Vice President for Human Resources
RESPONSIBLE UNIVERSITY DEPARTMENT/DIVISION
1980 Arthur Street
Revision Date(s): 8/24/2020; 4/9/2021
Reviewed Date(s): 4/9/2021
The University Policy and Procedure Library is updated regularly. In order to ensure a printed copy of this document is current, please access it online at http://louisville.edu/policies.