Policy Library 1 Camino Santa MariaSan Antonio, TX 78228 +1-210-436-3011 Policy Library logo William Joseph Chaminade St. Mary's University, Texas
Official policies of St. Mary's University

Equal Opportunity, Nondiscrimination, Sexual and Other Forms of Harassment

Approver(s):

Executive Council

Authorizes release:

Vice President for Administration and Finance

Responsible office:

Human Resources

Review cycle:

Annually or as required

Adopted:

October 2014

Last update:

September 2017

Next review:

June 2017

Related policies and additional references:

Title IX Statement; Fraternization; Equal Opportunity, Nondiscrimination, Sexual and Other Forms of Harassment; Personnel Manual; Faculty Handbook

St. Mary’s University affirms its commitment to promote the goals of fairness and equity in all aspects of the educational enterprise in full compliance with the requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Civil Rights Act of 1991, the Violence Against Women Act of 1994, the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Genetic Information Nondiscrimination Act, the Immigration Reform and Control Act of 1986, and other federal, state, and local laws.

All alleged violations of this policy will be handled in accordance with the University’s Equity Discrimination Resolution Process. The Equity Discrimination Resolution Process applies regardless of the status of the parties involved, who may be students or employees (staff, faculty, or administrators). The University reserves the right to act on conduct that may constitute a violation of this policy occurring on campus or off campus, when the off-campus conduct could have an on-campus impact or impact on the mission of the University.

The Director of Human Resources serves as the Title IX Coordinator and oversees implementation of this policy.

Allegations of violations of this policy must be reported to the Title IX Coordinator immediately. Reporting is addressed more specifically in Section 9 of this policy, below.

  1. Nondiscrimination

    The University fully subscribes to all federal and state civil rights laws banning discrimination in institutions of higher education. The University will not discriminate against any employee, applicant for employment, student, or applicant for admission on the basis of race, color, sex, pregnancy, religion, national origin, citizenship status, physical or mental disability, age, marital status, sexual orientation, gender, gender identity, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law, including protections for those opposing discrimination or participating in any allegation process on campus or within the Equal Employment Opportunity Commission or other human rights agencies.

    This policy covers nondiscrimination in employment and in access to educational opportunities. Therefore, any member of the University community who acts to deny, deprive, or limit the educational or employment access, benefits, or opportunities of any member of the University community on the basis of their actual or perceived membership in the protected classes listed above is in violation of this policy.

  2. Americans with Disabilities Act

    The University is committed to full compliance with the Americans with Disabilities Act, as amended (ADA) and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws pertaining to individuals with disabilities. Under Section 504 and the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities. The University is committed to providing reasonable accommodations to qualified individuals with disabilities that do not create a fundamental change in programming and/or impose an undue burden on the University.

    • Students with Disabilities

    The University ensures effective access to its academic programs, services, and activities through a variety of accommodations and/or services tailored to the strengths and unique needs of each individual student with a disability. All accommodations and/or services are provided on a case-by-case basis. A student with a diagnosed disability, who is requesting accommodations and/or services, needs to contact the Director of Disability Support Services to establish and maintain disability-related services and/or accommodations at the University. The Director will review the documentation provided by the student, complete a diagnostic Intake Interview with the student, and then in consultation with the student, determine the appropriate accommodations and/or services for the student’s particular needs and academic goals. The Director of Disability Support Services prepares Letters of Accommodation. The student with a disability is responsible for obtaining the Letters from Disability Support Services and delivering the Letter to each of his/her individual professors and/or impacted faculty, staff, or administrator.

  3. Discriminatory Harassment

    Students and employees are entitled to a professional working and educational environment, and the University is committed to providing a work and educational environment free of discriminatory harassment. Consistent with the University’s policy on academic freedom, the University’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive subject matters. The sections below describe the specific forms of legally prohibited harassment that are also prohibited under this policy.

    • Discriminatory and Bias-Related Harassment

      Harassment constitutes a form of discrimination that is prohibited by law. The University’s harassment policy explicitly prohibits any form of discriminatory harassment on the basis of actual or perceived membership in a protected class by students or employees which creates a hostile environment, both objectively and subjectively.

      A hostile environment may be created by oral, written, graphic, or physical conduct that is sufficiently severe or pervasive so as to interfere with, limit, or deny the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits, or opportunities. This definition of hostile environment is based on Federal Register/Vol. 59, No. 47/ Department of Education Office for Civil Rights, Racial Incidents and Harassment against Students at Educational Institutions Investigative Guidance (http://www.ed.gov/about/offices/list/ocr/docs/race395.html).

      The University will not tolerate discriminatory harassment against any student or employee on the basis of race, color, sex, pregnancy, religion, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, sexual orientation, gender, gender identity, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law.

    • Sexual Harassment

      Both the Equal Employment Opportunity Commission and the State of Texas regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice. The University has adopted the EEOC definition of sexual harassment, amended to address the special needs of an academic community, which consists not only of employer and employees but of students as well. The amended definition is as follows:

      Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status, (2) submission to or rejection of such conduct by an individual is used as the basis of employment or academic decisions affecting such individual, or (3) such conduct is sufficiently severe, pervasive or persistent that it has the effect of unreasonably interfering with an individual’s work or academic or student status by creating an intimidating, hostile, or offensive working, educational, or social environment.

  4. Sexual Misconduct

    Texas state law defines various violent and/or non-consensual sexual acts as crimes. Additionally, the University has defined categories of sexual misconduct, as stated below, for which will be considered violations of this policy. Acts of sexual misconduct may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation and/or gender identity of those involved. Violations include:

    • Sexual Harassment (as defined above)
    • Non-Consensual Sexual Intercourse (Texas Penal Code § 22.011)

      Defined as:

      • any sexual penetration or intercourse (anal, oral, or vaginal),
      • however slight,
      • with any object,
      • by a person upon another person,
      • that is without consent and/or by force.

      Sexual penetration includes vaginal or anal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.

    • Non-Consensual Sexual Contact

      Defined as:

      • any intentional sexual touching,
      • however slight,
      • with any object,
      • by a person upon another person
      • that is without consent and/or by force.

      Sexual touching includes any bodily contact with the breasts, groin, genitals, buttocks, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.

    • Sexual Exploitation

      Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse, or Non-Consensual Sexual Contact. Examples of sexual exploitation include, but are not limited to:

      • Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed).
      • Taking pictures or video or audio recording of another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent).
      • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.
  5. Consent

    Consent is knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear affirmative expression in words or actions that the other individual consented to that specific sexual conduct. Consent cannot be obtained by threat, coercion, or force. Agreement under such circumstances does not constitute consent.

    A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. It is not an excuse that the individual accused of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.

    Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.

    Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone may not indicate consent. A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

    In Texas, a minor (meaning a person under the age of 18 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 18 years old is a violation of this policy.

  6. Other Misconduct Offenses

    Other actions committed on the basis of an individual’s actual or perceived membership in a protected class will be considered violations of this policy, including:

    • Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person.
    • Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another.
    • Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy).
    • Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally.
  7. Retaliation

    Retaliation is defined as any adverse action taken against a person participating in a protected activity because of their participation in that protected activity. Retaliation against an individual for alleging a violation of this policy, supporting an accusing party, or assisting in providing information relevant to an allegation of a violation of this policy is strictly prohibited. Acts of alleged retaliation must be reported immediately to the Title IX Coordinator and will be promptly investigated under the University’s Equity Discrimination Resolution Process.

  8. Remedial Action

    The University will implement initial remedial and responsive actions upon notice of alleged violations of this policy, and will take additional prompt remedial and/or disciplinary action with respect to any individual who has been found to engage in harassing or discriminatory behavior or retaliation in violation of this policy pursuant to the University’s Equity Discrimination Resolution Process. Deliberately false and/or malicious accusations of violations of this policy, as opposed to allegations which, even if erroneous, are made in good faith, are just as serious an offense and will be subject to appropriate disciplinary action.

  9. Reporting of Violations of this Policy

    Students and employees of the University (not including, acting in their professional capacities, staff psychologists, counselors, health care providers, and clergy) must promptly report an alleged violation of this policy to the Title IX Coordinator. To meet the University’s obligation under federal law, if the violation of policy includes crimes that must be reported under the Clery Act reportable crimes, the employee and Title IX Coordinator must immediately notify the University Police to determine whether a Timely Warning is necessary or required. The Title IX Coordinator will determine how much detail is needed in an initial report. However, subsequent to an initial report, University officials may need additional information in order to fulfill the University’s obligations under federal, state, and local laws. Alleged violations of this policy will be handled in accordance with the University’s Equity Discrimination Resolution Process.

    If a student would like the details of an incident to be kept confidential, the student may speak with on-campus psychologists, counselors, health service providers, or members of the clergy/chaplains who will maintain confidentiality, unless the student requests that the information be shared.

  10. Federal Timely Warning Obligations

    Victims of sexual misconduct should be aware that University administrators must issue timely warnings for incidents reported to them that pose a substantial threat of bodily harm or danger to members of the campus community. The University will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.

  11. Questions
    • Questions about this policy may be made internally to:

      Elsa O. Ybanez
      Director of Human Resources
      Title IX Coordinator
      210-436-3725
      eybanez@stmarytx.edu

      Tim Bessler, Ed.D.
      Vice Provost/Dean of Students
      Deputy Coordinator
      tbessler@stmarytx.edu

      Leona Pallansch, Ph.D.
      Vice Provost
      Deputy Coordinator
      210-436-3204
      lpallansch@stmarytx.edu

    • Report Crimes to

      University Police Department
      (210) 436-3330 non-emergency
      (210) 431-1911 emergency

    • Questions may be made externally to

      Office for Civil Rights (OCR)
      U.S. Department of Education
      400 Maryland Avenue, SW
      Washington, DC 20202-1100
      Customer Service Hotline #: (800) 421-3481
      Facsimile: (202) 453-6012
      TDD#: (877) 521-2172
      Email: OCR@ed.gov
      Web: http://www.ed.gov/ocr

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