Policy AD85 - SEXUAL AND/OR GENDER-BASED HARASSMENT AND MISCONDUCT (INCLUDING SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING VIOLENCE, DOMESTIC VIOLENCE, STALKING AND RELATED INAPPROPRIATE CONDUCT) (Formerly Discrimination, Harassment, Sexual Harassment and Related Inappropriate Conduct)

Policy Steward: Vice President for Administration

Contents:

  • Purpose
  • Policy Statement
  • Conduct Prohibited By This Policy ("Prohibited Conduct")
  • Consensual Relationships
  • Resources and Reporting
  • Mandatory Reporting
  • Anonymous Reporting
  • Confidential Reporting
  • Additional Information on Reporting
  • Additional Services for Victims
  • Addressing Complaints of Sex and/or Gender-based Harassment and Misconduct
  • Sanctions
  • Amnesty for Student Drug or Alcohol Possession and Consumption Violations
  • Free Expression and Academic Freedom
  • External Complaints
  • Further Information
  • Cross References

  • If you believe you are the victim of any Prohibited Conduct described in this Policy, please immediately go to the Resources and Reporting Section of this Policy for resources and contact information.

    PURPOSE:

    To establish the University’s policy prohibiting sex and/or gender-based harassment and misconduct, as well as to define types of misconduct that must be reported.  This policy is a companion to University Policy AD91, Discrimination and Harassment and Related Inappropriate Conduct.

    POLICY STATEMENT:

    The University is committed to equal access to programs, facilities, admission and employment for all persons.  It is the policy of the University to maintain an environment free of harassment and free of discrimination against any person because of age, race, color, ancestry, national origin, religion, creed, service in the uniformed services (as defined in state and federal law), veteran status, sex, sexual orientation, marital or family status, pregnancy, pregnancy-related conditions, physical or mental disability, gender, perceived gender, gender identity, genetic information or political ideas.  Discriminatory conduct and harassment, as well as sexual misconduct and relationship violence, violates the dignity of individuals, impedes the realization of the University’s educational mission, and will not be tolerated. Gender-based and sexual harassment, including sexual violence, are forms of gender discrimination in that they deny or limit an individual’s ability to participate in or benefit from University programs or activities.

    This policy shall not be construed to restrict academic freedom at the University, nor shall it be construed to restrict constitutionally protected expression.

    Conduct prohibited by this policy may also violate Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964, as well as other applicable federal and state laws. Paul W. Apicella, JD is the Title IX Coordinator.  Deputy Title IX Coordinators include Danny Shaha, Senior Director of the Office of Student Conduct; Kim Lantz Yoder, Equity Officer, Penn State College of Medicine; Charmelle Green, Associate Athletic Director of Intercollegiate Athletics; and Julie Del Giorno, Director of Athletics Integrity and Investigative Services.  Additional information about how to contact these individuals, or to otherwise pursue or report a violation of this Policy, is set forth below.

    Pursuant to this policy and Title IX of the Education Amendments of 1972, the University will identify Responsible and Confidential Employees on a regular, ongoing basis, and notify these individuals of their obligations to report (or not report) potential violations.

    The University will provide regular, mandatory training for all University employees related to issues covered under this Policy.  All University employees will be required to complete Title IX training within the first 30 days of employment at the University.  In addition, all University employees will be required to complete an Annual Compliance Training as a reminder of reporting requirements and procedures on a yearly basis.

    CONDUCT THAT IS PROHIBITED BY THIS POLICY (“Prohibited Conduct”):

    1. Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwanted, inappropriate, or unconsented to.  Sexual Harassment is prohibited at the University.

      For purposes of student discipline, the term Sexual Harassment is defined in the Student Code of Conduct.

      Sexual Harassment committed by an employee or third party can lead to discipline or corrective action when:

      1. Submission to such conduct is made implicitly or explicitly a condition for employment, promotion, grades, academic status, or participation in the University’s activities; or
      2. Submission to or rejection of such conduct is used as the basis for employment or academic or other decisions affecting an individual; or
      3. Such conduct is sufficiently severe or pervasive so as to substantially interfere with the harassed individual’s employment, education or access to University programs, activities and opportunities, or creates a hostile or offensive environment for that individual or others. Whether a hostile environment exists is based on a totality of the circumstances and is evaluated from a subjective and objective perspective.
    2. Gender-Based Harassment is behavior consisting of physical or verbal conduct based on gender, sexual orientation, gender-stereotyping, perceived gender, or gender identity, but not involving conduct of a sexual nature, when such conduct is sufficiently severe or pervasive such that it substantially interferes with an individual’s employment, education or ability to participate in or benefit from University programs, activities or opportunities and would detrimentally affect a reasonable person under the same circumstances.  Gender-Based Harassment may include, but is not limited to, verbal or physical attacks, graphic or written statements, threats, or slurs. Whether the alleged conduct constitutes prohibited Gender-Based Harassment depends on the totality of the particular circumstances, including the nature, frequency and duration of the conduct in question, the location and context in which it occurs and the status of the individuals involved.

      (Note: Policy AD91 defines Sex and/or Gender-based Discrimination as conduct of any nature that denies an individual the opportunity to participate in or benefit from a University program or activity, or otherwise adversely affects a term or condition of an individual’s employment, education, or living environment, because of the individual’s sex, sexual orientation, pregnancy, pregnancy-related condition, gender, perceived gender, or gender identity. Conduct that may constitute Sex and/or Gender-based Discrimination but does not fall within the conduct defined in Policy AD85 is excluded from the definition of Prohibited Conduct in Policy AD85 and is addressed in Policy AD91).  

    3. Sexual Misconduct is a form of sexual harassment and refers to sexual offenses including but not limited to rape, sexual assault, sexual battery, sexual exploitation, sexual coercion and any other forms of nonconsensual sexual activity.  Sexual misconduct can be committed by strangers, acquaintances and family members, as well as casual and long-term dating partners.
    4. Sexual assault occurs when a person engages in sexual intercourse or deviate sexual intercourse with a complainant without the victim’s consent, and includes rape, fondling, incest, or statutory rape. Sexual assault also includes, but is not limited to, attempted or unwanted sexual activity, such as sexual touching and fondling.  This includes the touching of an unwilling person’s intimate parts (defined as genitalia, groin, breast or buttock, or clothing covering them), or forcing an unwilling person to touch another’s intimate parts.

      Sexual exploitation includes, but is not limited to: prostituting another person; non-consensual visual or audio recording of sexual activity; non-consensual display or distribution of photos, images or information of an individual’s sexual activity or intimate body parts; non-consensual voyeurism; coercing someone against their will to engage in sexual activity, or; knowingly transmitting sexually transmitted disease (STD) without disclosing STD status.

      Consent must be informed, freely given and mutual.  If coercion, intimidation, threats or physical force are used there is no consent.  If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent. This includes impairment or incapacitation due to alcohol or drug consumption, or being asleep or unconscious, where the respondent knew or reasonably should have known that the person was incapacitated.  Inducement of incapacitation of another with the intent to affect the ability of an individual to consent or refuse to consent to sexual contact almost always, if not always, negates consent.  Silence does not necessarily constitute consent.  Whether a person has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.

    5. Stalking is a course of conduct directed at a specific person that would cause a reasonable person to fear for his/her safety or the safety of others, or to suffer substantial emotional distress.  Stalking may include repeatedly following, harassing, threatening, or intimidating another by telephone, mail, electronic communication, social media, or any other action, device or method.

    6. Dating Violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.  The existence of such a relationship will be based on the reporting party’s statement and with consideration of the length and type of relationship and the frequency of interaction between the persons involved in the relationship.  Dating violence includes but is not limited to sexual or physical abuse or the threat of such abuse.  However, it is important to recognize that emotional, verbal, and economic abuse are part of the web of dating violence and can exist without the presence of physical abuse.
    7. Domestic Violence includes crimes of violence committed against a victim by:  (i) a current or former spouse or intimate partner of the victim; (ii) a person with whom the victim shares a child; (iii) a person who is or has cohabitated with the victim as a spouse; (iv) a person similarly situated to a spouse of the victim; or (v) any other person (adult or child) against whom the victim is protected under Pennsylvania’s domestic and family violence laws.  It is important to recognize that emotional, verbal, and economic abuse are part of the web of domestic violence and can exist without the presence of physical abuse.

    8. Retaliation, as defined in University Policy AD67, is also prohibited by this policy and may subject the individual who retaliates in violation of this or other University policy to discipline or sanctions.
    In addition to the above, in the case of off-campus Prohibited Conduct that did not occur in the context of a University program or activity, the University will consider the effects of such off-campus conduct when evaluating whether there is a hostile environment on campus and/or in an off-campus education program or activity.

    CONSENSUAL RELATIONSHIPS:

    While not expressly prohibited, romantic and/or sexual relationships between faculty and students, staff and students or supervisors and subordinate employees are strongly discouraged.  Such relationships have the potential for adverse consequences, including the filing of charges of sexual harassment.  Given the fundamentally asymmetric nature of the relationship where one party has the power to give grades, thesis advice, evaluations, recommendations, promotions, salary increases or performance evaluations, the consensual nature of the relationship is inherently suspect.

    Even when both parties have consented to the relationship, there may be perceptions of conflicts of interest or unfair treatment of others. Such perceptions undermine the atmosphere of trust essential to the educational process or the employment relationship. Accordingly, the person in the position of supervision or academic responsibility must promptly report the relationship to his or her immediate supervisor.  Once the consensual relationship is reported, the immediate supervisor is responsible for eliminating or mitigating the conflict of interest to the fullest feasible extent and ensuring that fair and objective processes are in place for decisions relative to grading, thesis advice, evaluations, recommendations, promotions, salary increases, or performance evaluations.  The new supervisory or academic arrangement should be documented.

    RESOURCES AND REPORTING:

    In situations involving danger to persons or property, individuals are strongly encouraged to first report the incident to the applicable police or public safety department.

    MANDATORY REPORTING

    All Responsible Employees, as defined by this policy, are required to report Prohibited Conduct to the Title IX Coordinator as set forth below.

    1. Confidential Employee – A University employee who is exempt from reporting to the Title IX Coordinator incidents of gender-based harassment, sexual violence, sexual harassment, or any other sexual misconduct in a way that identifies the victim. This includes professional and pastoral counselors and non-professional counselors or advocates. The University designates confidential employees and those individuals are notified of their designation.

      1. Professional and pastoral counselors- includes licensed mental health counselors, pastors, priests, or any other pastoral counselor whose official responsibilities include providing mental health counseling to the campus community. It also includes individuals who are supervised by these people.
      2. Non-professional counselors or advocates- includes individuals who are not professional or pastoral counselors, but work or volunteer in on-campus sexual assault centers, victim advocacy offices, women’s centers, or health centers, including front desk staff and students, social workers, doctors, medical staff, or any other person with a professional license requiring confidentiality.

      Employees who are designated as Confidential Employees are not required to report any information they learn about an incident involving Prohibited Conduct in a way that identifies the victim.  Some Confidential Employees, such as non-professional counselors or advocates, may be required to report aggregate data only.

      For more information, including locations where a list of Confidential Employees may be found, please visit the SHARE Website:  http://www.psu.edu/share.

    2. Responsible Employee – All Penn State employees who are not Confidential Employees. Responsible Employees are required to report incidents of possible Prohibited Conduct to the Title IX Coordinator, using one of the methods identified below:

      1. Fill out the form on the Title IX website: http://www.psu.edu/share.

      2. Contact the Title IX Coordinator directly, via telephone or email:

      Paul Apicella, JD, Title IX Coordinator
      222 Boucke Building, University Park, PA 16802
      Phone:  (814) 867-0099
      Email:  pua26@psu.edu or titleix@psu.edu

    Responsible Employees are not required to report information disclosed (1) at public awareness events (e.g., “Take Back the Night,” candlelight vigils, protests, or other public forums in which individuals may disclose incidents of Prohibited Conduct, collectively “Public Awareness Events”); or (2) during an individual’s participation as a subject in an Institutional Review Board (“IRB”)-approved human subjects research protocol.  The University may provide information about individuals’ rights under Title IX and about available University and Community resources and support at Public Awareness Events, however, and Institutional Review Boards may, in appropriate cases, require researchers to provide such information to all student subjects of IRB research.

    In addition to the requirement for Responsible Employees to notify the Title IX Coordinator of incidents of Prohibited Conduct, any individual may also report Prohibited Conduct under this policy to the Title IX Coordinator or to the other offices listed in the table below, as follows:

    For Conduct Committed by

    Report To

    Contact Information

    Students or Student Organizations

    Danny Shaha, Senior Director, Office of Student Conduct and Deputy Title IX Coordinator

    (814) 863-0342
    jds49@psu.edu

    Employees or third-parties Kenneth Lehrman, Vice Provost for Affirmative Action (814)863-0471
    aao@psu.edu

    Students, employees, or third-parties at the Penn State College of Medicine

    Kim Lantz Yoder, Equity Officer and Deputy Title IX Coordinator

    (717) 531-0003, ext. 283353
    kyoder1@psu.edu

    ANONYMOUS REPORTING:

    Anyone may make an anonymous report of Prohibited Conduct by contacting the Ethics and Compliance Hotline at 1-800-560-1637.

    For more information on anonymous reporting, please see https://psuethicsandcompliance.tnwreports.com/ and hotline.psu.edu.

    CONFIDENTIAL REPORTING:

    For students and employees who wish to discuss or report, in a confidential setting, sexual misconduct, gender-based harassment, and/or any other Prohibited Conduct as addressed in this policy, a listing of confidential resources is available on the Sexual Harassment and Assault Reporting and Education (SHARE) website at http://www.psu.edu/share.

    ADDITIONAL INFORMATION ON REPORTING:

    In addition to the above, employees and other individuals are reminded that they may have other reporting obligations under other mandatory reporting policies.

    If the apparent victim is under the age of 18 at the time of the offense and there is any potential of child abuse, University employees should also consult University Policy AD72, Reporting Suspected Child Abuse, which addresses the procedure for mandatory reporting of suspected child abuse.

    Finally, certain individuals may also be Campus Security Authorities for Clery Act purposes, and must also take into account their reporting obligations as a CSA under University Policy AD74.

    ADDITIONAL SERVICES FOR VICTIMS:

    Primary care services and/or appropriate referrals to community services will be provided to victims of sexual violence, dating violence, domestic violence and/or stalking.  Information about how to best support and identify available services for students and/or employees at all University campuses and locations may be accessed at http://www.psu.edu/share and the Affirmative Action Office website.  Confidential and non-confidential resources are available and listed on the websites.

    ADDRESSING COMPLAINTS OF SEX AND/OR GENDER-BASED HARASSMENT, AND SEXUAL MISCONDUCT:

    Once the University receives clear notice, prompt and equitable corrective measures will be taken to stop sexual or gender-based harassment or misconduct, to prevent its recurrence, and to remedy its effects.  The Title IX Procedures Document, available at the University’s Title IX website, http://www.psu.edu/share, and the Office of Student Conduct Procedures document sets forth in detail the University’s procedures for resolving complaints of sexual or gender-based harassment or misconduct (including sexual harassment, stalking, dating violence and domestic violence) and for complaints involving crimes of violence (including sexual assault, and rape) brought against students.

    The Affirmative Action Office Website (http://www.psu.edu/dept/aaoffice/ ) sets forth in detail the University’s procedures for resolving complaints of discrimination and harassment (including sexual harassment) and for complaints involving crimes of violence (including sexual assault, rape, relationship violence, and stalking) brought against third parties and non-student employees of the University.

    SANCTIONS:

    Against Students:  Disciplinary sanctions for student violations of this policy will be imposed in accordance with the “Code of Conduct & Student Conduct Procedures Manual." Sanctions range from conduct conversation, conduct warning, conduct probation, conduct suspension, and indefinite expulsion, and permanent explusion.  In addition, possible secondary administrative sanctions may include housing review, room reassignment, loss of housing, and loss of privilege.  The University reserves the right to impose other sanctions in addition to those listed above in response to a specific circumstances of a case.

    Against Employees: Disciplinary sanctions for employee violations of this policy, which may range from a disciplinary warning to termination from the University, will be imposed in accordance with applicable University policies. Disciplinary sanctions may include one or more of the following measures:

    AMNESTY FOR STUDENT DRUG OR ALCOHOL POSSESSION AND CONSUMPTION VIOLATIONS:

    The University strongly encourages students to report incidents that may violate this policy.  Therefore, students who act responsibly by reporting to the appropriate authorities information about conduct violating this policy typically will not face University disciplinary action for their own drug or alcohol possession or consumption in connection with the reported incident.

    FREE EXPRESSION AND ACADEMIC FREEDOM:

    The University is committed to its long-standing tradition of academic freedom and free expression.  The University is an institution whose members may express themselves, while protecting and respecting the rights of others to learn, to do research, and to carry out the essential functions of the University free from interference or obstruction.  When addressing complaints of violations of this policy, the University will take all permissible actions to respond appropriately while respecting the rights of free expression and academic freedom.  See HR64, AD47 and AD51.

    EXTERNAL COMPLAINTS:

    The University encourages all individuals with a pertinent complaint to follow the process in this Policy.  However, individuals may always choose to make a discrimination complaint directly with outside agencies, including, but not limited to, the Office for Civil Rights of the U.S. Department of Education based in Philadelphia, the U.S. Equal Employment Opportunity Commission, the Educational Opportunities Section of the Civil Rights Division of the U.S. Department of Justice, or the Pennsylvania Human Relations Commission, Harrisburg Regional Office.  Contact information for these agencies can be found at the Affirmative Action Office website.

    FURTHER INFORMATION:

    For questions, additional detail, or to request changes to this policy, please contact the Title IX Coordinator.

    CROSS REFERENCES:

    Affirmative Action Office Website

    Code of Conduct & Student Conduct Procedures Manual

    Penn State College of Medicine Web Site

    Sexual Harassment and Assault Reporting and Education (SHARE)

    University Title IX Website

    AD29 - Statement on Intolerance,

    AD47 - General Standards of Professional Ethics

    AD51 - Use of Outdoor Areas for Expressive Activities

    AD67 - Disclosure of Wrongful Conduct and Protection From Retaliation

    AD72 - Reporting Suspected Child Abuse

    AD74 - Compliance With the Clery Act

    AD91 – Discrimination and Harassment, and Related Inappropriate Conduct

    HR01 - Fair Employment Practices

    HR11 - Affirmative Action in Employment at The Pennsylvania State University

    HR76 - Faculty Rights and Responsibilities

    HR79 - Staff Grievance Procedure


    Effective Date: September 29, 2016
    Date Approved: September 29, 2016
    Date Published: September 29, 2016

    Most Recent Changes:

    Revision History (and effective dates):

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