GRIEVANCE POLICY FOR ADDRESSING FORMAL COMPLAINTS OF SEXUAL HARASSMENT
UNDER TITLE IX REGULATIONS

Effective August 14, 2020

1. Introduction

What is the purpose of the Title IX Grievance Policy?

On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:

• Defines the meaning of “sexual harassment” (including forms of sex-based violence)
• Addresses how we must respond to reports of misconduct falling within that definition of sexual harassment, and
• Mandates a grievance process that we must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.

Based on the Final Rule, Cayuga Community College will implement the following Title IX Grievance Policy, effective August 14, 2020.

How does the Title IX Grievance Policy impact other campus disciplinary policies?

In recent years, “Title IX” cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, Cayuga must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.

Cayuga Community College remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.

Specifically, our campus has:

• A Code of Conduct that defines certain behavior as a violation of campus policy, and a separate Sexual Misconduct Policy that addresses the types of sex-based offenses constituting a violation of campus policy, and the procedures for investigating and adjudicating those sex-based offenses.

To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, Cayuga retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Student Code of Conduct, Discipline, and Conduct Review Process through a separate grievance proceeding. See Student Handbook.

The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process.

How does the Title IX Grievance Policy impact the handling of complaints?

Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.

2. Title IX Grievance Policy

Effective Date

This Title IX Grievance Policy will become effective on August 14, 2020, and will only apply to formal complaints of sexual harassment brought on or after August 14, 2020. Complaints brought prior to August 14, 2020, will be investigated and adjudicated according to the Title IX Grievance Policy if a case is not complete by that date.

Revocation by Operation of Law

Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Student Code of Conduct, Discipline, and Conduct Review Process.

Non-Discrimination in Application

The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a Complainant, Respondent, or Witness. This policy applies to students, employees, contractors, vendors, and visitors to Cayuga’s campuses. Individuals who wish to file a complaint about the Cayuga’s policy or process may contact the Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.

Definitions

Covered Sexual Harassment

For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:

1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Cayuga’s education program or activity;
3. Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
4. Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
5. Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of New York.
6. Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.

Note that conduct that does not meet one or more of these criteria may still be prohibited under the Student Code of Conduct, Discipline, and Conduct Review Process.

Consent

For the purposes of this Title IX Grievance Policy, “affirmative consent” means a knowing, voluntary, and mutual decision among all participants of legal age to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

Education Program or Activity

For the purposes of this Title IX Grievance Policy, Cayuga’s “education program or activity” includes:

• Any on-campus premises
• Any off-campus premises that Cayuga Community College has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
• Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of Cayuga Community College’s programs and activities over which Cayuga has substantial control.

Formal Complaint

For the purposes of this Title IX Grievance Policy, “formal complaint” means a document – including an electronic submission - filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within Cayuga Community College’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.

Complainant

For the purposes of this Title IX Grievance Policy, “complainant” means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.

Relevant Evidence and Questions

“Relevant” evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true.

“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:

• Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
  • They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
  • They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
  • Evidence and questions that constitute, or seek disclosure of, information protected under a legally recognized privilege. Legally recognized privileges include communications between an attorney and client, husband and wife, clergy person and penitent, and doctor and patient.
• Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent.

Respondent

For the purposes of this Title IX Grievance policy, “respondent” means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.

Privacy vs. Confidentiality

Consistent with Student Code of Conduct, Discipline, and Conduct Review Process, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean Cayuga offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. Cayuga Community College will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

Disability Accommodations

This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Making a Report Regarding Covered Sexual Harassment to the Cayuga

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Contact Information for the Title IX Coordinator:

Name: Paul Smith
Title: Assistant Director of Human Resources and Title IX Coordinator
Office Address: Room R312
Email Address: psmith37@cayuga-cc.edu
Telephone Number: 315-294-8580

Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.

Privacy and Confidential Reporting

The following College officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:

• Title IX Coordinator or designee
• Dean of Students
• Office of Public Safety staff
• Office of Human Resources staff
• Campus Security Authorities
• Wellness Specialists

The following resources may provide confidentiality:

• Sue Wilson, R.N. – Health Services
• Cayuga Counseling Services/Sexual Assault Advocate – available to Auburn students and College employees
• Oswego County Opportunities – Services to Aid Families – available to Fulton students and College employees
• HelpPeople Employee Assistance Program – available to employees only

Non-Investigatory Measures Available Under the Title IX Grievance Policy

Supportive Measures

Complainants (as defined above), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from Cayuga Community College regardless of whether they desire to file a complaint, which may include supportive measures as appropriate. Supportive measures are non-disciplinary and non-punitive.

As appropriate, supportive measures may include, but not be limited to:

• counseling
• extensions of deadlines or other course-related adjustments
• modifications of work or class schedules (including temporarily re-assigning an employee)
• campus escort services
• restrictions on contact between the parties (no contact orders)
• changes in work or housing locations
• leaves of absence
• increased security and monitoring of certain areas of the campus

Emergency Removal

Cayuga Community College retains the authority to remove a respondent from Cayuga’s program or activity on an emergency basis whether a grievance process is underway or not. A five-step process for evaluating the necessity for an emergency removal will be used to determine if an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.

If Cayuga determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal. Any challenge to the emergency removal by a respondent shall be heard by the appropriate Vice President.

Administrative Leave

Cayuga Community College retains the authority to place an employee respondent on administrative leave during the Title IX Grievance Process.