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47. Sexual Harassment and Related Retaliation

(Revised: 2013)

 The decision as to which procedure to utilize for a grievance filed by a student shall be made solely by the university and shall be based on the fact pattern of each particular case. Each grievance shall be directed to a specific procedure and shall be accorded only one opportunity to be adjudicated unless the appeal body remands for further review.

NOTE: Faculty, staff, students, or third parties may file a grievance using Student Rule 47. 

Texas A&M University strives to maintain a work and educational environment free from discrimination, sexual harassment, and related retaliation in accordance with applicable federal and State laws. Individuals are encouraged to report all unwelcome conduct of a sexual nature and should not wait to report conduct of concern until it becomes severe, pervasive, or persistent harassment.  University officials can take proactive steps to address conduct, perhaps prevent conduct from continuing or escalating, and/or to protect or otherwise assist the recipient of the conduct.

47.1 Definitions

Sexual Harassment

Sexual harassment is a form of sex discrimination. Unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature constitutes actionable sexual harassment when this conduct is so severe, persistent or pervasive that it explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work or educational performance, or creates an intimidating or hostile work or educational environment. The University will use a reasonable person standard to determine these elements.

Sexual harassment also includes sexual misconduct (non-consensual sexual intercourse and non-consensual sexual contact) and sexual exploitation.

Non-consensual sexual intercourse (See student rule 24.4.20.1 - Sexual abuse)

The oral, anal, or vaginal penetration by a sexual organ of another or anal/vaginal penetration by any means against the victim’s will or without his/her consent. An individual who is mentally incapacitated, unconscious, or unaware that the sexual abuse is occurring is considered unable to give consent. The type of force employed may involve physical force, coercion, intentional impairment of an individual’s ability to appraise the situation through the administering of any substance, or threat of harm to the victim.

Non-consensual sexual contact (See student rule 24.4.20.2 – Sexual Contact)

Attempting or making sexual contact, including but not limited to inappropriate touching or fondling, against the person’s will, or in circumstances where the person is physically, mentally or legally unable to give consent.

Sexual exploitation (See student rule 24.4.2.3 - Stalking and 24.4.18 - Unauthorized recording)

Occurs when an individual takes non-consensual or abusive sexual advantage of another for his or her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited. For example, sexual exploitation could include such actions as secretly videotaping sexual activity, voyeurism, sexually-based stalking and invasion of sexual privacy.

Sexual harassment occurs when a person is the recipient of conduct of a sexual nature where:

  • Submission to or toleration of such conduct is made either explicitly or implicitly a term or condition of an individual’s education (including co-curricular activities) or employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for academic, co-curricular, or employment decisions affecting the individual’s welfare; or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s welfare, academic or work performance, or creates an intimidating, hostile, offensive or demeaning education (including co-curricular activities) or work environment.

47.2 Information and Consultation

Staff in the Offices of the Dean of Student Life is available to serve as a resource to any individual who has a sexual harassment inquiry or complaint.  These resource persons have information about applicable laws, university rules and procedures, resources (such as counseling, health services, etc.), options available for resolution of complaints, confidentiality requirements, and reporting options including local law enforcement and/or the Title IX Coordinator.

47.3 Confidentiality

Persons gathering general information, seeking guidance, or filing a complaint may be concerned about the confidentiality of the information they are sharing. While the university wishes to create an environment in which individuals feel free to discuss concerns and make complaints, the university may be obligated to take action when its officials are informed that sexual harassment may be occurring. Although the confidentiality of the information received, the privacy of the individuals involved, and the wishes of the complainant/survivor regarding action by the university cannot be guaranteed, they will be protected to as great a degree as is legally possible. The expressed wishes of the complainant/survivor regarding confidentiality will be considered in the context of the university’s obligation to act upon the charge and the right of the charged party to be informed about charges against him/her. If the individual does not disclose any identifying information about him/herself or any other party involved (e.g., names, department or unit) during the inquiry, response on the part of the University may be limited.

47.3.1 Reporting Confidentially Students may report confidentially through the Student Counseling Service.      Without the student’s consent, counselors in the Student Counseling Service are not required, nor may they report an incident that in any way identifies the student concerned.

47.4 Reporting to Law Enforcement

Individuals have the option of notifying law enforcement authorities including university and local police. An anonymous “Jane/John Doe” report can be filed with the police while deciding whether to pursue criminal charges. A criminal investigation may occur independent from a conduct proceeding on campus.

Law enforcement is able to help individuals understand the process of obtaining orders of protection, no contact orders, restraining orders, or similar lawful orders issued by the courts.

47.5 Filing a Complaint with the University

Once an individual discloses information about possible sexual harassment, sexual discrimination or related retaliation to an Official Contact (see 47.5.1) of the university, he/she will be considered to have filed a complaint with the university.

All employees are responsible for ensuring their work and educational environments are free from illegal discrimination, sexual harassment and related retaliation.  When alleged or suspected discrimination, sexual harassment or retaliation is experienced or observed by or made known to an employee, the employee is responsible for reporting that information (TAMU System Regulation 08.01.01, section 2.1).

Students may contact the Dean of Student Life for assistance in arranging the contact with the Dean of Faculties or the Human Resources, Policy & Practice Review Office. Incidents occurring with individuals across these areas of responsibility will be coordinated among the appropriate official contacts depending on the circumstances. The official contact will promptly notify the University’s Title IX Coordinator if the complaint alleges sexual harassment, including sexual violence, sex discrimination, or related retaliation.

47.5.1 Official Contact of the University

If the Alleged Offender is a:

Then the Official Contact is:

Student (graduate, undergraduate, professional)

Dean of Student Life

Student Employee (With the exception of the two student categories listed below, all other student employees will be considered students for the purpose of these procedures. )

Dean of Student Life

Graduate Student or Postdoctoral Student working in academic affairs

Dean of Faculties and Associate Provost

Graduate Student or Postdoctoral Students working in other areas

Human Resources, Policy & Practice Review

Non-Faculty Employee

Human Resources, Policy & Practice Review

Faculty Employee

Dean of Faculties and Associate Provost

Third Party (not a student or employee but party’s actions occurred on campus or at a university-sponsored activity)

Human Resources, Policy & Practice Review

 

47.6 Process for Complaint Filing and Resolution Where the Alleged Offender is a Texas A&M Graduate Student Employee, Non-Faculty Employee, Faculty Employee, or Third Party

47.6.1 The process if the alleged offender is a non-teaching or non-research graduate student employee, non-faculty employee, or third party is outlined in the University Standard Administrative Procedure 08.01.01.M1.01 - Investigation and Resolution of Complaints Against Non-Faculty Employees and Unrelated Third Parties for Illegal Discrimination, Sexual Harassment, or Related Retaliation Charges.

47.6.2 The process if the alleged offender is a teaching/research graduate student employee or a faculty employee  is outlined in the University Standard Administrative Procedure 08.01.01.M1.02  - Investigation and Resolution of Complaints Against Faculty Members for Illegal Discrimination, Sexual Harassment, or Related Retaliation Charges

47.7 Procedures for Complaint Filing and Resolution Where the Alleged Offender is a Texas A&M Student

47.7.1 Informal Complaint Procedures
47.7.1.1 Informal procedures, including mediation, will not be used to resolve sexual assault complaints.

47.7.1.2 Adopting informal procedures for resolving sexual harassment complaints does not mean that the institution does not take sexual harassment seriously. Informal procedures simply provide an alternative method for stopping sexual harassment.

Mediation may be utilized as a method for resolving the complaint informally. Mediation requires the good faith effort of all involved parties to arrive at a mutual agreement that resolves the complaint to everyone’s satisfaction. If a complainant decides to handle the situation her/himself, and the harassment stops, there may not be an investigation. The outcome of informal procedures can range from no action, a simple apology, a promise not to do it again, or a transfer of either or both parties relating to on-campus housing, and/or academics. Generally, under informal procedures, the complainant may, at any time, elect to stop further administrative action by withdrawing the complaint. Staff is available to assist individuals with the informal complaint process.

47.7.2 Formal Complaint Procedures

47.7.2.1 Once an individual discloses information to an Official Contact of the university, he/she will be considered to have filed a complaint with the university. Complaints where the alleged offender is a Texas A&M student should be filed with the Dean of Student Life.

47.7.2.2 Upon receipt of a complaint, the University will exercise due diligence in determining what occurred and further action that may be warranted based on the information provided. The Dean of Student Life will appoint an Investigating Authority. The Title IX Coordinator will be promptly informed if the complaint alleges sexual harassment or another form of sex discrimination.

47.7.2.3 The Investigating Authority, composed of one or more people, is responsible for all administrative activities required to conduct the investigation. The complaint will be investigated and a determination will be made as to whether further investigation or a student conduct conference is warranted. Refer to Student Rule 26 for information about the student conduct process. 

47.7.2.4 If further investigation or a conference is warranted, the alleged offender will be informed of the allegations, the identity of the complainant/survivor and the facts surrounding the allegations.

47.7.2.5 A representative from the Offices of the Dean of Student Life shall notify the alleged offender and the complainant/survivor regarding the resolution of the complaint, including any sanctions. Refer to Student Rule 27 for information about possible sanctions.

47.7.2.6 The University will respond to complaints in a prompt and equitable manner.  Resolution of complaints will be completed within 60 days from the date of the original complaint.  Reasonable extensions can be made for extenuating circumstances. These extensions are granted by the Title IX Coordinator or designee.

47.7.3 Appeals of Sanctions

Sanctions imposed as a result of an individual being found responsible for charges of sexual harassment may be appealed by the survivor and/or the offender. 

Students appealing sanctions shall be directed to the University Disciplinary Appeals Panel. Please refer to Student Rules 51 and 58 for more information about the University Disciplinary Appeals Process and Panel.

47.7.4 Protection of Complainant/Survivor, Alleged Offender, and Others     

47.7.4.1 The university will take prompt steps to protect the complainant/survivor as necessary, including taking interim steps before the completion of the investigation (including avoiding contact by allowing a change in class schedule, living arrangements as appropriate), or other actions as appropriate. 

47.7.4.2 The university will take reasonable action to assure that the complainant/survivor, the alleged offender, and those providing witness statements on behalf of either party or supporting either party in other ways, are protected from retaliation. This action may come at any time during or following an investigation of a sexual harassment complaint.  Instances of retaliation will be investigated and may result in further conduct charges.

47.7.4.3 In the event the allegations are not substantiated, reasonable steps will be taken to restore the reputation of the alleged offender if damaged by the proceedings. Instances where a complainant/survivor intentionally makes dishonest or malicious allegations will be investigated and may result in conduct charges.

47.7.4.4 To the extent possible, university proceedings will be conducted in a manner that protects the confidentiality of all parties involved.

47.7.5 Complainant/Survivor Follow Up

In order to verify that the harassing behavior by a student or student employee remains stopped, the Dean of Student Life or designee will follow up with the survivor.

Free Speech

Texas A&M University respects the right of free speech guaranteed by the First Amendment of the Constitution and the principles of academic freedom. Constitutionally protected expression cannot be considered harassment under this policy. Each faculty member is entitled to full freedom in the classroom in discussing the subject which he or she teaches (see Committee A on Academic Freedom and Tenure in the Report on Freedom in the Classroom as stated in the AAUP Policy Documents and Reports).  However, the right to free speech and principles of academic freedom are not absolute.

The offensive conduct underlying some incidents might be protected speech, but may still be in contradiction to Texas A&M University’s commitment to civility, diversity, academic freedom, equality of opportunity and the valuing of human dignity. In these instances, constitutional rights will continue to be protected, but University staff will also exercise their right to speak and engage in educational dialogue with those engaged in these types of behaviors.

Incidents not rising to the level of harassment

In some instances offensive conduct might not be severe, persistent or pervasive to rise to the level of reasonably interfering or limiting an individual’s participation in services, activities or privileges provided by Texas A&M University. Nevertheless, the offensive conduct could still be a violation of the Student Conduct Code or other published rules of the university. As stated in the Student Conduct Code, violations of the Student Conduct Code that are motivated by prejudice toward a person or group because of factors such as race, religion, ethnicity, disability, national origin, age, gender or sexual orientation may be assessed an enhanced sanction (see rule 24.5).

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