Frequently Asked Questions

Important note:  None of the information on this page should be interpreted or relied on as legal advice.  These questions and answers have been prepared for general information purposes only.  If you have any specific questions about a legal matter, you should consult with an attorney or other professional legal services provider.     

EMERGENCIES

1.  I've been physically harmed. What should I do?
2.  Where can I get emergency assistance?   

BASICS / BACKGROUND

3.  I thought Title IX was just about women in sports.
4.  Can you give me some examples of sexual harassment?
5.  I understand that, even when the victim of an incident does not want to bring a complaint or let his/her name be known, an investigation will still be done if there’s a “threat to the community.”  What is meant by a threat to the community?
6.  What does “remedying” a situation mean?
7.  If an incident of sexual violence or other discriminatory harassment occurs off-campus, can the University investigate?
8.  Can you highlight some of the University’s more significant initiatives in recent years to comply with Title IX and other nondiscrimination requirements?
9.  It looks like most of the University’s efforts have been for students.  Is that true?  If so, why?
 

DISABILITY ISSUES

10.  What is Section 504?
11.  I am an employee with a disability.  Do I go to the Title IX / 504 Coordinator & Equity Compliance Officer in order to ask the University to provide me an accommodation?
12.  I am a student with a disability.  Do I go to the Title IX / 504 Coordinator & Equity Compliance Officer in order to ask the University to provide me an accommodation?
13.  Are the Nondiscrimination and Anti-Harassment Policy and Equity Complaint Process accessible to individuals with visual impairments?

MANDATORY REPORTING

14.  Am I a mandatory reporter?
15.  I am a student-employee.  Does that make me a mandatory reporter?
16.  What should I say if I think someone is about to tell me about discrimination he or she has experienced?
17.  If I’ve reported a matter as a mandatory reporter, does that mean I’m involved throughout the case?
18.  I understand that as an employee I am a mandatory reporter.  Does that mean I am supposed to investigate possible violations?
19.  What happens if I don't report within "1 business day" as the policy says I must?
20.  Is there a penalty for not reporting an incident that falls under the Nondiscrimination and Anti-Harassment Policy?
21.  What if a student tells me of a sexual assault that occurred several months ago?  Do I still report it?
22.  What if I overhear two people on campus talking in a very offensive, discriminatory way?  Can I try to put a stop to that, or do I just report the incident?    
23.  What if I’ve heard about a potential policy violation secondhand?  Should I still report it?   
24.  If I report a discriminatory incident to Public Safety, do I have to report it here too?

THE COMPLAINT PROCESS

25.  I would like to file a complaint that the Nondiscrimination and Anti-harassment Policy has been violated.  How do I do that? 
26.  Can I file an anonymous complaint if I am a victim?
27.  I am a big believer in trying to work things out informally.  Is that a possibility under the Equity Complaint Process?
28.  The process seems complicated.  Can you provide an overview?
29.  The Equity Complaint Process says I can bring a "support person" with me as part of the complaint process.  What does that mean?
30.  Who are the investigators in the complaint process?
31.  What if someone who’s part of the ordinary decision-making process for complaints is actually a party in case – won’t that create a conflict of interest? 
32.  What is the Bias Related Incident Process?  When does it come into play? 

PROTECTION AGAINST RETALIATION

33.  I'm a University employee that filed a complaint using the Equity Complaint Process.  I can't be punished for bringing that complaint, can I?
34.  I understand that, as a complainant, witness or aligned party, I'm protected against retaliation.  What does that mean?
35.  I've been asked to be a witness in an investigation, but I'm afraid I'll be punished if I tell the truth.  What should I do?
36.  Does the prohibition of "retaliation" protect me from being sued for defamation or having some other civil action brought against me? 

CONFIDENTIALITY / COMMUNICATION ISSUES

37.  If I tell someone who works at the University about an incident of discrimination or harassment, can he or she keep it a secret (i.e., keep it private)?
38.  If I go to Campus Ministry, they'll keep whatever I tell them confidential, won't they?
39.  I was a witness in an investigation.  Do I have the right to know how things turned out, or to know that the investigation is over?
40.  I was an accused party (i.e., respondent) to an investigation, and I was found not to have engaged in behavior in violation of the University’s policy.  Yet the complainant continues to say bad things about me.  Can anything be done?
41.  Can you explain what you mean when you say that the University attempts to keep its investigation confidential?   

LEGAL / EVIDENTIARY STANDARDS

42.  I'm a student who was accused of a crime but the prosecutor decided not to press charges.  Yet I am still being charged through the University's student conduct system.  How?
43.  What exactly is "preponderance of evidence"?   


EMERGENCIES    

1. I've been physically harmed. What should I do?

You should (1) go to a safe place; (2) tell someone (such as the police or a counselor); (3) seek medical attention; and (4) if you’re a student, contact the Dean of Students office to seek a change in academic or living arrangements in order to stay safe.  You can report the incident to Campus Police at  911 or 937-229-2121.  If you’re a student, you can seek counseling through the University Counseling Center at 937-229-3141 or with a doctor in the Health Center 937-229-3131.  If you’re an employee, you can seek counseling through the Employee Assistance Program at 888-267-8126 or www.lifeworks.com.

2. Where can I get emergency assistance?

Call Campus Police at 911 or 937-229-2121.

BASICS / BACKGROUND    

3. I thought Title IX was just about women in sports.

Title IX since its enactment as part of the Education Amendments of 1972 has been about more than sports, but it is the topic of sports that dominated the media spotlight for a number of years due to the new programs and scholarships schools created in order to comply.  Beyond sports, Title IX also addresses sex segregation, pregnancy and other issues related to gender quality.  The Department of Education put a particular emphasis on the obligation of schools to promptly investigate matters of sexual discrimination through a Dear Colleague Letter (DCL) issued in April 2011, and the increased enforcement proceedings after that DCL.  It is that DCL that mandated each institution of higher education that receives federal funding to appoint a Title IX Coordinator.

4. Can you give me some examples of sexual harassment?

Some examples of possible sexual harassment include:

  • A professor insists that a student have sex with him/her in exchange for a good grade.  This is harassment regardless of whether the student accedes to the request.
  • A student repeatedly sends sexually oriented jokes around on an email list s/he created, even when asked to stop, causing one recipient to avoid the sender on campus and in the residence hall in which they both live.  
  • Explicit sexual pictures are displayed in a professor’s office or on the exterior of a residence hall door.
  • Two supervisors frequently ‘rate’ several employees’ bodies and sex appeal, commenting suggestively about their clothing and appearance.
  • A professor engages students in her class in discussions about their past sexual experiences, yet the conversation is not in any way germane to the subject matter of the class.  She probes for explicit details, and demands that students answer her, though they are clearly uncomfortable and hesitant.  
  • An ex-girlfriend widely spreads false stories about her sex life with her former boyfriend to the clear discomfort of the boyfriend, turning him into a social pariah on campus.
  • Male students take to calling a particular brunette student “Monica” because of her resemblance to Monica Lewinsky.  Soon, everyone adopts this nickname for her, and she is the target of relentless remarks about cigars, the president, “sexual relations” and Weight Watchers.
  • A student grabbed another student by the hair, then grabbed her breast and put his mouth on it.  While this is sexual harassment, it is also a form of sexual violence.

These examples are taken from the model policy developed by The NCHERM Group, LLC/ATIXA, which the University of Dayton has a license to use.

5.  I understand that, even when the victim of an incident does not want to bring a complaint or let his/her name be known, an investigation will still be done if there’s a “threat to the community.”  What is meant by a threat to the community?

Any event or conduct involving violence is automatically considered to be a threat.  Other situations are more fact dependent.  For example, if an allegation is made about a single, potentially harassing event, and the Title IX/504 Coordinator and Equity Compliance Officer (ECO) is aware of other situations that suggest that the reported allegation is not an isolated event – such that other potential victims appear to be in harm’s way – an investigation might nonetheless ensue about the single event. 

6.  What does “remedying” a situation mean?

When a violation of the Nondiscrimination and Anti-Harassment Policy occurs, the University is obligated to remedy the situation, meaning that it will attempt to fix the harm experienced by the complainant and will implement measures to prevent the conduct from recurring.  Remedies might include actions to keep the parties separate; making alternative workplace or student housing arrangements; or interim suspensions, suspensions, or expulsions (for students).  A remedy will be commensurate with the seriousness of the offense.  Sometimes remedies do involve very serious consequences for a respondent, but that is only when the problem cannot be fixed without imposing such consequences.  The remedy is not about inflicting punishment on the respondent.  

7.  If an incident of sexual violence or other discriminatory harassment occurs off-campus, can the University investigate?

Yes.   The University's Nondiscrimination and Anti-Harassment policy applies to behaviors that take place on campus and at university-sponsored events, and it may also apply off-campus and to actions online when the Equity Compliance Officer determines that the off-campus or online conduct affects a substantial University interest.

8.  Can you highlight some of the University’s more significant initiatives in recent years to comply with Title IX and other nondiscrimination requirements?

The University of Dayton's most significant initiatives of the past years to deal with sexual discrimination (including violence) are shown in the following timeline:

revisedtimeline

9.  It looks like most of the University’s efforts have been for students.  Is that true?  If so, why?

The University's early efforts to comply with the Department of Education's April 2011 Dear Colleague Letter did focus on policies and protocols for students, for a number of reasons.  First, most complaints of sexual discrimination -- particularly assaults -- involve students.  Second, sexual assault on college campuses was a growing national concern (and indeed, the University itself had, even prior to the Department of Education's April 2011 letter, undertaken its own task force efforts to address the issue better).  And third, students do not have the protections of Title VII of the Civil Rights Act of 1964, which protects employees from discrimination, meaning that Title IX afforded them rights they do not have elsewhere.  Although the University did focus its early formalized efforts on students, in June 2012 it began reviewing and assessing ways to revise its employee grievance procedures and policies to better reflect Title IX requirements and to ensure that employees understand the processes followed in a Title IX investigation (including each party’s rights).  This employee-focused effort was further prioritized in early summer 2013, when the University retained outside counsel to help with the effort and then subsequently engaged with ATIXA to help determine the best practices for a holistic process that offers ease, clarity and fairness to all constituents.  As part of this effort, the University ultimately studied several other institutions' policies and procedures, and also incorporated and benefited from the work already carried out by the University's Division of Student Development in developing protocols for students.  It is those efforts that took fruition in the improvements launched January 1, 2014.  Please rest assured that, with respect to faculty and staff, the University has applied Title IX procedural requirements and rights whenever Title IX issues have been at stake.  Moreover, employees at the University have always enjoyed the protections of Title VII.   



DISABILITY ISSUES

10.  What is Section 504?

“Section 504” refers to Section 504 of the Rehabilitation Act of 1973, which is a federal law that prohibits discrimination against an otherwise qualified individual with a disability, solely on the of the disability, in any program or activity that receives federal financial assistance (such as colleges and universities that receive federal funding through the federal financial aid some students receive).  Three of the most substantial implications of this law for colleges and universities are program accessibility; the provision of auxiliary aids; and accommodations.  The University of Dayton’s Office of Learning Resources has disability specialists who can assist students who may have a need for academic and testing accommodations, alternative formats, and assistive technology.  Appeals of their determinations, as well as complaints or concerns of discrimination based on disability, may be made to the Title IX/Section 504 Coordinator and Equity Compliance Officer (ECO).

11.  I am an employee with a disability.  Do I go to the Title IX / 504 Coordinator & Equity Compliance Officer in order to ask the University to provide me an accommodation?

A.  No.  For employee accommodation requests, you should talk to your supervisor or Human Resources (more information from HR is available here).  If you end up having an issue with how that accommodation request was handled or determined, then you could seek the assistance of the Title IX / 504 Coordinator & Equity Compliance Officer (“ECO”) to help resolve that issue by submitting an Online Reporting Form, or otherwise contacting her.  In other words, the ECO provides an avenue of appeal/grievance after an accommodation decision has been made.  

12.  I am a student with a disability.  Do I go to the Title IX / 504 Coordinator & Equity Compliance Officer in order to ask the University to provide me an accommodation?

A.  No.  For student accommodation requests, you should contact the LTC's Office of Learning Resources.  The trained staff in the Office of Learning Sources will work with you regarding necessary accommodations.  If you end up having an issue with how that accommodation request was handled or determined, then you could seek the assistance of the Title IX / 504 Coordinator & Equity Compliance Officer (“ECO”) to help resolve that issue by submitting an Online Reporting Form, or otherwise contacting her.  In other words, the ECO provides an avenue of appeal/grievance after an accommodation decision has been made.  

13.  Are the Nondiscrimination and Anti-Harassment Policy and Equity Complaint Process accessible to individuals with visual impairments?

A.  Yes, the policy and complaint process are presented as web-based content, meaning they meet the ADA Standards for Accessible Design.  They are also compliant with Section 508 of the Rehabilitation Act of 1973.  For printing convenience, they are also presented in .pdf format.

MANDATORY REPORTING 

14. Am I a mandatory reporter?

All University employees are mandatory reporters EXCEPT doctors, counselors or ordained members of the clergy acting in that capacity.  As a mandatory reporter, if you become aware of possible discrimination or harassment, you MUST inform the University by contacting the Equity Compliance Officer or one of the Deputy Title IX coordinators.  You can also satisfy your reporting obligation by filling out the Harassment and Discrimination Online Reporting Form.

15.  I am a student-employee.  Does that make me a mandatory reporter?

Yes, you are a mandatory reporter for incidents you learn about during your role as an employee.  For example, if you are on duty at a residence hall front desk and see discriminatory harassment taking place, you must report that.  

16.  What should I say if I think someone is about to tell me about discrimination that he or she has experienced?

If someone approaches you as though he or she is going to share something very personal with you, we suggest you say something along the following lines (this is taken from the last page of the Mandatory Reporting Policy):

“I appreciate your willingness to share this with me. Please know that I am here to help in any way that I can. 

If you would like to file a formal complaint with the University, I’ll help you connect with [the appropriate Designated Reporting Office], so that an investigation can begin.  It is important you understand that I may not be able to keep what you tell me confidential.  But if you are comfortable talking with me, I am here to listen.  If you’re not, I can help connect you to a confidential resource such as the University’s Health Center, Counseling Center  or Campus Ministry.  Above all, please know that the University takes this matter seriously and wants to help.”  

17. If I’ve reported a matter as a mandatory reporter, does that mean I’m involved throughout the case?

First of all, if you’ve reported a matter – thank you.  Your role in reporting helps the University respond appropriately to claims that are raised.  But once you’ve done that step of reporting, your role is finished, except the investigators may need to interview you as they gather evidence.  Otherwise you do not have a continuing role in the matter, as it is the Equity Compliance Officer and her team who carry the matter forward and ensure that the University remedies any situation needing remedying.  Please understand that if your role in a matter is that of a mandatory reporter, you do not have the right to know the outcome of the proceedings, and the University is likely to limit the dissemination of any findings or results because of the privacy of the parties involved (although, in limited instances – such as when safety to the community is implicated – the University will make concerns publicly known as appropriate).

18.  I understand that as an employee I am a mandatory reporter.  Does that mean I am supposed to investigate possible violations?

No.  As a mandatory reporter, your job is simply to report any possible incidents of which you become aware to the Title IX/Section 504 Coordinator and Equity Compliance Officer.  It is not to conduct an investigation.  You can fulfill your duty simply by using the Harassment and Discrimination Online Reporting Form found on the "Complaint, Reporting, and Appeal Forms" page.  The investigation will be undertaken by the trained investigators appointed by the Equity Compliance Officer.  You are doing a valuable service to the University community simply by reporting suspected violations. 

19.  What happens if I don't report within "1 business day" as the policy says I must?  Should I not make the report if I missed the deadline?

There is no punishment for being tardy; please make the report as soon as you can.  The University needs the report as promptly as possible, since it is legally obligated to "promptly investigate" and must wrap up the whole process (including interviewing witnesses, preparing reports, determining any needed remedies, handling appeals) within 60 days.  Delays associated with power outages, travels, etc. can be understood, but please keep expedience in mind as you satisfy your mandatory reporting obligations. 

20.  Is there a penalty for not reporting an incident that falls under the Nondiscrimination and Anti-Harassment Policy?

It is the University’s policy that all employees must report incidents that violate the Nondiscrimination and Anti-Harassment Policy.  Knowing violations of University policy may be subject to disciplinary action under the University’s Policy Prohibiting Illegal, Fraudulent, Dishonest and Unethical Conduct, which applies to policy violations in general.

21.  What if a student tells me of a sexual assault that occurred several months ago?  Do I still report it?

Please report it!  The University's obligation to promptly investigate an issue that violates Title IX is triggered when the University (meaning, any employee) learns of the incident.  Thus it doesn't matter if the sexual assault the student experienced is "stale"; the University still must take steps to find out what happened and implement any necessary remedy.  A delay in the University knowing about an incident can happen particularly in cases of sexual violence or other sexual misconduct, where a victim might be too traumatized or embarrassed to bring the matter forward when it happens but, after a significant passage of time (and perhaps as part of healing process), ultimately comes forward and alerts the University of what happened.  


22.  What if I overhear two people on campus talking in a very offensive, discriminatory way?  Can I try to put a stop to that, or do I just report the incident?

If you witness discriminatory behavior taking place, please intervene (if you can do so safely) and try to put a stop to it.  And please still report it to the Title IX / Section 504 Coordinator and Equity Compliance Officer (by calling, emailing or filling out the Online Reporting Form).  If the behavior you are witnessing is physically dangerous such that you cannot safely intervene, please call for emergency assistance.  

23.  What if I’ve heard about a potential policy violation secondhand?  Should I still report it?

Yes.  Do not assume others have reported it.  If you’ve heard about an incident and you do not know for certain if anyone else has reported it, the best course is to go ahead and report it yourself.  The Title IX/504 Coordinator and Equity Compliance Officer will sort through whether any reports are duplicative, i.e., about the same incident.

24.  If I report a discriminatory incident to Public Safety, do I have to report it here too?

Yes.  Reporting it both places helps ensure that prompt, appropriate action is taken on all fronts.

THE COMPLAINT PROCESS    

25. I would like to file a complaint that the Nondiscrimination and Anti-harassment Policy has been violated.  How do I do that?

You can use the online Harassment and Discrimination Complaint Form, or you can contact the Title IX/504 Coordinator & Equity Compliance Officer (ECO) directly, by phone at 937-229-3615 or by email at azavadil1@udayton.edu.

26.  Can I file an anonymous report if I am a victim?

Yes, by submitting an Online Reporting Form and leaving the name field blank.  However, anonymity will hamper the ability of the University to provide resolution.  Also, please note that any obligation to be a mandatory report does not pertain to incidents that happen to you; that is, if you are the victim of a discriminatory incident, you are not required to report it to the Equity Compliance Officer.

27.  I am a big believer in trying to work things out informally.  Is that a possibility under the Equity Complaint Process?

Yes, for many types of complaints an informal process is a great option.  The University would never require or advise that anyone try to work things out with someone who sexually assaulted him or her or otherwise engaged in an act of violence.  But when the claim involves language or behaviors that you believe might be corrected if the other person knew they were objectionable, the University encourages you to talk with him or her before filing a complaint.  If you do file a complaint and both parties agree, the University will attempt to help you informally resolve the dispute through something like a mediation.  (Again, informal dispute will not be used in cases involving sexual assault or other violence.)

28. The process seems complicated.  Can you provide an overview?

Yes.  You can find a step-by-step chart and explanation under the “How It Works/Quick-Guide” page on this Nondiscrimination Resources Center website, but here is a very basic overview: 

a. The University takes action when it receives a complaint about or a report of possible unlawful discrimination or harassment.  What that action is depends on a lot of things, including whether the alleged victim (the “complainant”) wants to move forward, whether there may be a danger to the community, etc.

b. The Title IX/Section 504 Coordinator and Equity Compliance Officer (ECO) acts as a “gatekeeper.”  The ECO first looks at the facts alleged to see if, assuming they are true, they might be sufficient to add up to a violation of the policy.  Sometimes, as when someone is asserting a sexual assault, the answer is clearly “yes,” and the process moves on.  Sometimes, the answer is “I don’t know. I need to know more facts.”  If so, the process moves on.  But sometimes the answer is “no.”  For instance, a one-time use of an offensive word is not usually sufficient to create a hostile environment as defined by our policy and federal law. If the answer is “no,” the process/case ends.  That does not mean that the University will take no action.  It simply means that the Nondiscrimination and Anti-Harassment Policy has not been violated.  The ECO will refer the matter to the appropriate University official for review and action, if necessary.

c. If the process moves on, it goes to a specially trained investigatory team, which gathers facts about what happened.  The team interviews the complainant, the accused party (the “respondent”), and witnesses and gathers other relevant evidence.  When it is done, the University has a much more complete picture of what each side says happened.  At that point, the investigatory team looks at the question of whether there is probable cause to believe that the policy might have been violated.  The team looks at the evidence in a light most favorable to the complainant.  A finding of “probable cause” does not mean that the complainant will ultimately win.  It just means there is enough evidence to justify sending the case on to a fact-finder (a group charged with determining which facts are probably true).  If there is not enough evidence to create probable cause, the process/case ends. 

d. If there is probable cause, the process/case moves forward to a fact-finder to determine what facts are likely true.  In doing so, it uses a “preponderance of the evidence” standard, which is explained in FAQ #45 ("What exactly is 'preponderance of evidence'?").  If a student is the respondent, the case goes to the Office of Community Standards and Civility for a hearing before an Accountability Board. The Board determines what facts are likely true; whether the policy was violated; and, if so, what action by the University is appropriate.  If a member of the faculty or staff or a visitor is the respondent, the investigatory team serves as the fact-finder, determining what facts are likely true and whether the policy was violated. If it was violated, the team recommends action to the appropriate University official, who makes the final determination as to how to remedy the violation. These basic steps outline in (b) through (d) are illustrated as follows:

simple chart q39

e.  A limited right to appeal exists for both the complainant and the respondent. An appeal is only available if a party can identify new evidence or information that was not known when the fact-finder made its decision or can identify a clear error in the process.

29. The Equity Complaint Process says I can bring a "support person" with me as part of the complaint process.  What does that mean?

Both complainants and respondents have a right to be accompanied by one support person of their choosing, including, but not limited to a licensed attorney.  The role of the support person is to serve as an advisor.  He/she may be present at interviews, hearings and other proceedings, but is not permitted to speak.  The support person cannot be someone who may be called as a witness.

30.  Who are the investigators in the complaint process?

The investigators are University staff, faculty and students who have been specifically trained to conduct the investigations required by the Equity Complaint Process.  They are assigned to investigations based on the issues and types of parties (e.g., a student might be assigned to investigate a complaint involving students but would not be assigned to one involving faculty/staff).  However, in cases that may trigger conflict-of-interest concerns due to the status of one or more of the parties or where other unique factors exist, the University retains the discretion to hire outside investigators (typically a law firm) to handle the case.  Note that someone who is acting as a mandatory reporter because he or she is an employee is not supposed to investigate the case; that person should only report the matter to the Title IX/504 Coordinator and Equity Compliance Officer (which can be done electronically, using the Harassment and Discrimination Online Reporting Form at the "Complaint, Reporting and Appeal Forms" page), and then let the trained investigators handle it from there.

31.  What if someone who’s part of the ordinary decision-making process for complaints is actually a party in case – won’t that create a conflict of interest? 

If someone who is ordinarily part of the decision-making process is a party, then the University will take steps to ensure that a different person or office plays the decision-making role instead.  When necessary to avoid a conflict, the University will even send an investigation to outside legal counsel, who is bound by the Rules of Professional Responsibility governing attorneys to provide an independent evaluation when asked.

32.  What is the Bias Related Incident Process?  When does it come into play?

BRIP, short for the "Bias Related Incident Process," works alongside the University's Equity Complaint Process.  There may be issues of bias or discrimination that are reported (either through a report or complaint) that do not amount to an actual violation of the University's Nondiscrimination and Anti-Harassment Policy (such as where probable cause does not exist), yet it may still be clear that an issue of bias that needs to be addressed exists.  In such situations, the Equity Compliance Officer would send the case to the BRIP team, and the BRIP team will investigate and handle the matter.  For more information, refer to the BRIP information page.  The important thing is that you need not worry about whether the Equity Complaint Process or BRIP process will apply.  If you are aware of an issue of bias or discrimination, simply report the issue using the Online Reporting Form on the Complaint, Reporting & Appeal Forms page, and the University will apply the appropriate process.

PROTECTION AGAINST RETALIATION    

33. I'm a University employee that filed a complaint using the Equity Complaint Process.  I can't be punished for bringing that complaint, can I?

Bringing a good faith complaint under the Equity Complaint Process is considered protected activity, which means you cannot be retaliated against for bringing that complaint. That means that no adverse action should be taken against you for bringing the complaint.  For employees, such types of adverse action include, but are not limited to: dismissal from employment; demotion; loss of salary or benefits; transfer or reassignment; or denial of promotion that otherwise would have been received.  For students, such types of adverse action include, but are not limited to:  being given a grade not based on class/test performance; denial of access to a course, program, organization or housing; denial of support, services or other assistance given to other students; or denial of an award that otherwise would have been received.  If you believe you’ve been retaliated against for bringing a good faith complaint, please report that immediately to the Equity Compliance Officer.  Note that an adverse action is retaliatory only if it is taken because you brought the complaint.  The University maintains the right to take action against you for other legitimate reasons, even if you have made a complaint.  For example, if you’re an employee, your supervisor could give you a negative performance review if that’s unrelated to the fact that you brought the complaint.  If you’re a student, that means the University could sanction you for violating the Code of Conduct, so long as that sanction is unrelated to you bringing the good faith complaint.  Note that using the Equity Complaint Process in bad faith, i.e., with deliberately false allegations and malicious accusations of harassment, is not considered protected activity.  Also realize that the person you’ve accused may exercise the right to bring a claim against you if your complaint was in bad faith or malicious, and that would not be considered retaliation. 

34.  I understand that, as complainant, witness or aligned party (someone who's a friend to one of the parties), I'm protected against retaliation.  What does that mean?

The University does not tolerate retaliation – basically, adverse action – for bringing a complaint, participating in an investigation, or being aligned with a party.  Submitting a complaint, participating in an investigation (such as by being a witness), or simply being aligned with a party (that is, being friends or associated with either the complainant or respondent) are all considered protected activities which should not subject a person to any type of negative action.  Retaliation itself is considered a violation of the University’s Nondiscrimination and Anti-Harassment Policy.  However, if you bring a complaint, it does not relieve you from the regular requirements of your job or being a student, such as performance evaluations or class assignments. 

35.  I've been asked to be a witness in an investigation, but I'm afraid I'll be punished if I tell the truth.  What should I do?

You are strongly encouraged to be a witness, as that will help ensure that the investigation leads to the right result.  Just as a person bringing a good faith complaint cannot be retaliated against, witnesses cannot be retaliated against either.  That is, your participation in the investigation is considered “protected activity.”  More information is provided in FAQ #35.

36.  Does the prohibition of "retaliation" protect me from being sued for defamation or having some other civil action brought against me?     
The decision as to whether to seek redress from the courts for any allegedly defamatory or otherwise actionable comments belongs to the individuals involved, not the University.  The University cannot provide legal advice to individuals in their personal capacity.  If you wish to know the true risks associated with making a particular allegation against a particular individual, whether by way of a formal complaint or by making your allegations publicly known, you should seek the advice of your own personal legal counsel.      

CONFIDENTIALITY / COMMUNICATION ISSUES    

37. If I tell someone who works at the University about an incident of discrimination or harassment, can he or she keep it a secret (i.e., keep it private)?

That depends on whom you tell and what exactly you are reporting.  There are three different levels of privacy:

  1. Strictly Private – These conversations are confidential and can be anonymous.  Except in rare, extreme circumstances, nothing will be shared without your explicit permission.
  2. Mostly Private – These conversations are kept as confidential as possible, but employees must report certain basic information about incidents of possible harassment and discrimination to the Title IX/Section 504 Coordinator and Equity Compliance Officer (ECO) and in some rare cases law enforcement.  Unless there is a threat to the safety of the alleged victim or the University community, this information will not typically include personally identifiable information, such as the alleged victim’s name.
  3. Somewhat Private – These conversations are kept as confidential as possible, but if the complaining party is seeking an investigation or other action, the information must be shared with relevant administrators, the accused (the “respondent”), and possibly others, such as witnesses.  In planning any response, the wishes of the person making the complaint (as well as the alleged victim if he or she is not the complainant) are given full consideration.

If you do not want the University to take any action, but you want to confide in a campus resource who can keep your communication strictly confidential, try one of these resources:

Resource I can get information
and support here
I can get care (physical,
mental or spiritual) here
I can file a formal
complaint here
Privacy
Level
Counseling Center
937-229-3141

(students)

Yes Yes No Strict
Health Center

937-229-3131
(students)

Yes Yes No

Strict

Campus Ministry

937-229-3339
(students and employees)

Yes Yes No Strict
Employee Assistance Program

www.lifeworks.com
(employees)

Yes Yes No Strict


If you want to discuss a possible violation with a campus resource, but do not want to initiate an investigation or other action by the University, you may discuss it with most faculty members, most staff members, and most students.  While all employees are required to report possible incidents of discrimination or harassment to the University, they are usually not required to report personally identifiable information like your name unless there is cause to fear for your safety or the safety of others.  If you are not sure of an employee’s ability to keep matters private, ask before you talk to him or her.  And, remember, students can be employees, too, so they may have a duty to report.

Resource I can get information
and support here
I can get care (physical,
mental or spiritual) here
I can file a
formal complaint here
Privacy Level
Non-Supervisory Faculty & Staff Yes No No Mostly
Private


If you do want the University to investigate or take some other action, you should file a formal complaint with one of these resources:

Resource I can get information
and support here
I can get care (physical,
mental or spiritual) here
I can file a formal
complaint here
Privacy
Level
Title IX Coordinator or
Deputy Coordinator

937-229-2749 or
Online Complaint Form

Yes No Yes Strict
Department of Public Safety

911 (on-campus phone) or
937-229-2121 (off-campus phone)

Yes No Yes Strict
Responsible Employees* Yes No Yes Strict


* Responsible Employees are employees falling into the following categories:  President’s Council Members; Vice Presidents and Assistant and Associate Vice Presidents; Administrative Department Heads with Supervisory Responsibilities; Housing & Residence Life Staff, including Resident Assistants; Student Development Staff with Supervisory Responsibilities; Human Resources Staff; Deans and Associate and Assistant Deans; Academic Department Chairs; and Other Administrators with Supervisory Responsibilities

38.  If I go to Campus Ministry, they'll keep whatever I tell them confidential, won't they?

Only certain individuals within Campus Ministry can promise confidentiality, and that depends on state law and the religious denomination of the clergy/counselor receiving the information.  That is, not everyone with a clergy background is qualified to provide confidentiality under Title IX.  Campus Ministry Staff are knowledgeable of who in that office can provide confidential support and will direct to you to the appropriate person.

39. I was a witness in an investigation.  Do I have the right to know how things turned out, or to know that the investigation is over?

In the interest of protecting privacy, the University only informs the actual parties of the outcome of an investigation (which is consistent with Title IX’s requirements) and any sanctions that directly affect them.  FERPA and other laws, as well as our fundamental respect for the interests of parties and witnesses alike, dictate that we only release information on an as-needed basis.  The University does not, as a general rule, have targeted communications with any witnesses following resolution of a matter, as the University does not want to give the appearance to any person who participated in an investigation that he or she is somehow under scrutiny or otherwise being singled out for participating (that is, the witness's "life" on campus should return to normal).  However, given the 60-day time-frame in which we try to complete such investigations, as a witness you can assume that, after a certain period of time has lapsed, the investigation phase is over.  The University’s obligation continues, however, well past the investigation stage to ensure that any required remedies are effective and followed – thus, in that sense, matters are not “over” after 60 days.

40. I was an accused party (i.e., respondent) to an investigation, and I was found not to have engaged in behavior in violation of the University’s policy.  Yet the complainant continues to say bad things about me.  Can anything be done?

We ask that parties and witnesses respect the privacy and dignity of all involved and discuss information obtained as a result of their participation in the investigation only when necessary.  If any member of the University community, including a complainant, is acting in such a way that he or she is violating another University policy (such as the University’s Policy Prohibiting Illegal, Fraudulent, Dishonest and Unethical Conduct), then disciplinary action may be taken, as appropriate, depending on the circumstances.  Additionally, if the complainant him- or herself is acting in a discriminatory or retaliatory manner, then the complainant runs the risk of violating the University’s Nondiscrimination and Anti-Harassment Policy (and thus being the subject of a complaint).  Finally, like a complainant, an accused party always retains his or her own personal rights to consider private action, separate and apart from anything the University might consider.

41.  Can you explain what you mean when you say that the University attempts to keep its investigation confidential?     
The University makes every effort to keep all matters under investigation as confidential as possible; however, complete confidentiality cannot be guaranteed, as an effective investigation may require revealing relevant information to a variety of individuals.  The University only discusses the facts of a case with those persons necessary, such as witnesses, to come to a resolution.  Further, it only reveals as much information as is necessary to effectively conduct an investigation.  So, for example, if a witness's knowledge is limited to only one of multiple alleged incidents, investigators will not discuss the other alleged incidents with him or her.
The University does not require that participants in an investigation (parties or witnesses) refrain from discussing the investigation.  Certain communications -- such as those needed to build or defend a case, or those considered "protected activity" under the law -- cannot be restricted by the University.  However, the University encourages those who are involved in an investigation to keep the matters discussed confidential to the extent possible, out of concern for the integrity of the process and respect for all parties involved.  Additionally, those with knowledge of an investigation that wish to talk publicly about allegations or rumors -- particularly about matters not known to be true -- may wish to seek their own personal legal counsel before making such public statements (to understand if any legal risks might be associated with such communications).    

LEGAL / EVIDENTIARY STANDARDS    

42. I'm a student who was accused of a crime but the prosecutor decided not to press charges.  Yet I am still being charged through the University's student conduct system.  How?

The University's standards are not the same as criminal standards.  That is, the University's Code of Conduct might find certain behavior unbecoming to the University community that does not amount to a crime.  Plus, the University applies a different standard of proof (typically, a "preponderance of evidence" standard) rather than the criminal system's standard of proof (the "beyond a reasonable doubt" standard), meaning, generally, that the criminal system requires more exacting, conclusive evidence before a person can be found responsible.  The criminal system uses a tougher standard because the consequences faced by criminal defendants are so serious -- they risk losing their liberty (i.e., going to jail) if found guilty.

43. What exactly is "preponderance of evidence"?

“Preponderance of evidence” is a standard of proof used in some internal University proceedings, such as Title IX investigations.  As explained in part (d) of FAQ #30, this is how evidence is weighed – that is, the step of determining what actually happened – but this step is not even reached unless it’s first been determined that there’s probable cause that the policy was violated. Practically speaking, what the “preponderance of evidence” standard means is: “Is it more likely than not that what the complainant alleges to have happened actually happened?”  If the decision-maker in a proceeding (whether a student conduct hearing board, investigatory team, etc.) determines it is more likely than not that the alleged event occurred, then the factual finding will be that the event did indeed happen.  Sometimes this is described as "50% plus a feather."  If the persuasive value of the evidence is so evenly balanced that the decision-maker is unable to say whether the alleged event occurred, then the factual finding will be that the event did not happen.  

A tougher standard is used in criminal prosecutions.  Specifically, if an offense were charged by the Montgomery County Prosecutor’s office, ultimate conviction would require a finding that it is “beyond a reasonable doubt” that the elements of the offense were indeed met.  Under Ohio law, “‘Reasonable doubt’ is present when the [decision-makers], after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. . . . ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.”  O.R.C. § 2901.05.