02.2.20 - Title IX Misconduct and Grievance Policy

Human Resources: Academic Freedom, Affirmative Action & Equal Employment

Last Updated: 08/12/2020

Original policy date: 08/12/2020

Applies to: Faculty, Staff, Residents & Clinical Postdoctoral Fellows, Postdoctoral Fellows, Students

 

 

Policy/Procedure Status, Date of Last Review

Current, as of August 12, 2020

Next Scheduled Review Date

July 1, 2022

 
I. Rationale
The purposes of this Policy are to: 1) define Title IX Misconduct for Baylor College of Medicine (BCM or College) Community Members, 2) establish mechanisms for reporting alleged violations of this Policy, 3) describe BCM’s centralized investigation and adjudication procedures for Title IX Misconduct as defined in this Policy, and 4) describe the range of disciplinary actions and remedies applicable to violations of this Policy.
 
II. Stakeholders Affected by this Policy
This Policy applies to all BCM Community Members. This Policy also applies to allegations of Title IX Misconduct by or against BCM Community Members, which may include a third party unaffiliated with BCM (e.g., patients, guests, invitees) as a Complainant or Respondent. This Policy does not apply to allegations of sexual misconduct that may occur in any location that is outside the borders of the United States of America, or to alleged incidents that occur outside the scope of an Education Program or Activity sponsored by BCM, even if a BCM Community Member is involved as a Complainant or Respondent. Such allegations shall be governed by the Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26), if applicable, or other applicable policies of the College (e.g., 02.2.25). 
 
III. Definitions
(a) Advisor– (1) an individual chosen by a Complainant or Respondent, at the Complainant’s or Respondent’s own expense, to provide support during any meetings or hearings related to the investigation and/or adjudication of a reported violation of this Policy and in accordance with the terms and restrictions in this Policy, or (2) if a Complainant or Respondent does not choose an Advisor, an individual provided by the College to the Complainant or Respondent for the sole purpose of cross-examining, as necessary, the other party or witnesses in a Live Hearing.
(b)   BCM Community Members – includes the BCM Board of Trustees, faculty, staff, residents/fellows, postdoctoral trainees, contractors, and students enrolled in all schools and programs.
(c)   Complainantan individual who is alleged to be the victim of conduct that could constitute Title IX Misconduct under this Policy.
(d)   Consentthe clear, knowing, active and voluntary permission by a person of legal age to participate in sexual contact or sexual activity. Consent can be given by words or actions as long as those words or actions create mutually understood clear permission regarding an individual’s willingness to engage in and the conditions of the sexual contact or sexual activity. Consent is not passive; silence in and of itself cannot be interpreted as Consent. Consent to any one form of sexual contact or sexual activity does not imply Consent to any other form of sexual activity, and Consent in any particular instance may not be inferred solely from Consent given in previous instances. 
(e)   Dating Violence – violence committed by a person who is or has been in a social relationship of a romantic or intimate nature. The existence of such a relationship is based on consideration of: 1) the length of the relationship, 2) the nature of the relationship, and 3) the frequency of interactions between persons involved in the relationship. Dating Violence includes but is not limited to sexual abuse, physical abuse, or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.  
(f)    Domestic Violence – an act of violence committed by a current or former spouse, intimate partner, domestic partner, co-parent (a person who shares a child in common), person similarly situated to a spouse under the domestic or family violence laws of the State of Texas, or by any other person against an adult or youth who is protected from that person's acts under the domestic or family violence laws of the State of Texas.
(g)   Education Program or Activity – includes locations, events, or circumstances over which BCM exercised substantial control over both the Respondent and the context in which the harassment occurs. This phrase also includes any building owned or controlled by a student organization that is officially recognized by BCM, and encompasses all of the operations of BCM.
(h)   Formal Complaint – a document filed by a Complainant or signed by the Title IX Coordinator alleging Title IX Misconduct against a Respondent and requesting that BCM investigate the allegation of Title IX Misconduct. As used in this definition, a “document filed by a Complainant” means a document or electronic submission that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Complaint.
(i)    Title IX Misconduct – Sexual Harassment, Sexual Assault, Dating Violence, Domestic Violence, and Stalking that occurs during an Education Program or Activity against an individual in the United States.
(j)    Reportera person who provides information to BCM regarding an incident of Title IX Misconduct. A Reporter need not be a Complainant.
(k)   Respondent – an individual who has been reported to be the perpetrator of conduct that could constitute Title IX Misconduct.
(l)    Retaliation – Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege provided by this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or Title IX Misconduct, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of Title IX Misconduct, for the purpose of interfering with any right or privilege secured by this Policy, constitute retaliation.
(m) Sexual Assault – a form of sexual violence that includes any offense that meets the definition of Rape, Fondling, Incest, or Statutory Rape:
·         Rape: the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
·         Fondling: the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his or her age or because of his or her temporary or permanent mental incapacity.
·         Incest: sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
·         Statutory Rape: sexual intercourse with a person who is under the statutory age of consent.
(n)   Sexual Harassment – conduct on the basis of sex that satisfies one or more of the following:
·         An employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct; 
·         Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education programs or activities; or
·         Any instance of “Sexual Assault,” “Dating Violence,” “Domestic Violence,” or “Stalking” as defined herein.
(o)   Stalking - a Course of Conduct directed at a specific person that would cause a Reasonable Person to fear for his or her safety or the safety of others (e.g., family member, household member), or suffer Substantial Emotional Distress. For the purposes of this definition,
·         Course of Conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property;
·         Reasonable Person means a reasonable person under similar circumstances and with similar identities to the victim; and
·         Substantial Emotional Distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
 
IV. Policy
A.    Legal Authority and Interaction with Other BCM Policies.
1.     BCM is subject to Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., and its implementing regulations, 34 C.F.R. Part 106. Title IX prohibits discrimination based on sex in education programs or activities that receive Federal financial assistance. In accordance with Title IX, BCM is committed to providing a safe and supportive environment for all BCM Community Members, who have the right to be free from all forms of sex-based discrimination.
2.     Interaction Between this Policy and BCM’s Policy Regarding Discrimination, Harassment and Retaliation (02.2.25). BCM Community Members experiencing sex-based discrimination, harassment, or retaliation should also refer to the Policy Regarding Discrimination, Harassment and Retaliation (02.2.25), which addresses sexual discrimination that does not constitute Title IX Misconduct as defined in this Policy, and other forms of discrimination that are prohibited by the College but are not violations of this Policy. If the alleged conduct would be prohibited by the Policy Regarding Discrimination, Harassment and Retaliation (02.2.25) and this Policy, this Policy controls.
3.     Interaction Between this Policy and BCM’s Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26). BCM Community Members experiencing sex-based harassment or other conduct prohibited by BCM’s Code of Conduct should also refer to the Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26), which addresses sexual misconduct that does not constitute Title IX Misconduct as defined in this Policy, and other conduct that is prohibited by the College, but is not a violation of this Policy. If the alleged conduct would be prohibited by the Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26) and this Policy, this Policy controls.
 
B.    Statement Regarding Preservation of Evidence, Reporting Options and Prompt Resolution.
BCM recognizes the importance of a victim of Title IX Misconduct going to a hospital for treatment and preservation of evidence, if applicable, as soon as practicable after the incident. BCM further recognizes the right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by BCM in reporting the crime to law enforcement, or to decline to report the crime to law enforcement. Finally, BCM recognizes the right of a victim of Title IX Misconduct to report the incident to BCM and to receive a prompt and equitable resolution of the report.
 
C.    Privacy Protections and Confidentiality.  
1.     Confidential Reporting. An individual may make an anonymous complaint, as described below, without revealing their identity. A student may also speak confidentially with a Confidential Employee concerning Title IX Misconduct. Confidential reporting is only available through the following Baylor College of Medicine service programs:
a.     Student and House Staff Mental Health Service - (713) 798-4881 or student-help@bcm.edu;
b.     WellConnect (students only) - (866) 640-4777 or www.wellconnectbysrs.com;
c.     Employee Assistance Program (faculty/staff only) - (713) 500-3008 or (866) 893-3776;
d.     Additionally, the Baylor College of Medicine Ombuds Office is a resource that provides confidential discussion of any Baylor-related concern. Therefore, sharing information regarding the occurrence of sexual harassment, sexual violence, relationship violence, or stalking to the Ombuds does not constitute notice to the College and will not result in action by the College.
·         Ombuds Office - (713) 798-5039, ombudsoffice@bcm.edu, or www.bcm.edu/ombuds
2.     Identity of the Complainant. A Complainant has the choice of whether to proceed with a Formal Complaint, and a Complainant may receive Supportive Measures as described below without filing a Formal Complaint; however, a Formal Complaint is required to initiate a grievance process and impose any disciplinary sanction against a Respondent under this Policy. A Complainant cannot file a Formal Complaint anonymously because such a Formal Complaint must indicate that the Complainant is the person filing the Formal Complaint. In addition, even if the Complainant does not wish to file a Formal Complaint, the Title IX Coordinator may sign a Formal Complaint after having considered the Complainant’s wishes and evaluated whether an investigation is not clearly unreasonable in light of the specific circumstances. If the Title IX Coordinator receives or files a Formal Complaint, BCM must send written notice of the allegations to both parties. The written notice of allegations must also include certain details about the allegations, including, if known, the identity of the parties. Accordingly, BCM cannot guarantee that once a complaint is made, the identity of the Complainant will not be disclosed to the Respondent.
3.     Privacy Violations.
a.     Duty of Confidentiality – College employees must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a Formal Complaint of Title IX Misconduct, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106 or this policy, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Disclosure to a law enforcement officer as necessary to conduct a criminal investigation of the report or to a health care provider in an emergency situation, as determined necessary by BCM, shall be authorized by law pursuant to Texas Education Code 51.291.   
b.     College Employees – Disclosures by College employees of the identity of individuals described above to another person that does not have a legitimate institutional interest in that information will result in corrective or disciplinary action. After a finding that an allegation is unsubstantiated or without merit, College administrators are prohibited from disclosing the name of the Respondent to persons outside the investigation or adjudication process.
c.     Complainants, Respondents, Reporters, Advisors, Witnesses – BCM expects Complainants, Respondents, Reporters, Advisors, and witnesses to respect the privacy of others who are named in an allegation of Title IX Misconduct and refrain from disclosing their names to others uninvolved in resolution of the allegation. Disclosures by these persons of the name of a Complainant or Respondent to another person that does not have a legitimate interest in that information may be a lapse in professionalism that could result in corrective or disciplinary action. However, this subsection shall not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. In addition, this subsection cannot be construed to prohibit Complainants, Reporters, or Respondents from having private conversations with Advisors, pursuing counseling, attending public awareness events, or reporting alleged Title IX Misconduct.
 
1.     Mandatory Reporting by BCM Employees.
a.     Any BCM employee who, in the course and scope of employment, witnesses or receives information regarding the occurrence of an incident that the employee reasonably believes constitutes Title IX Misconduct and is alleged to have been committed by or against a person who was a student enrolled at or an employee of BCM at the time of the incident shall promptly report the incident to the institution's Title IX coordinator or deputy Title IX coordinator.
b.     Except as provided by Subsection (c), the report must include all information concerning the incident known to the reporting person that is relevant to the investigation and, if applicable, redress of the incident, including whether an alleged victim has expressed a desire for confidentiality in reporting the incident.
c.     A BCM employee designated by the institution as a person with whom students may speak confidentially concerning Title IX Misconduct or who receives information regarding such an incident under circumstances that render the employee's communications confidential or privileged under other law shall, in making a report under this section, state only the type of incident reported and may not include any information that would violate a student's expectation of privacy.
d.     Notwithstanding Subsection (a), a person is not required to make a report under this section concerning: (1) an incident in which the person was a victim of Title IX Misconduct; or (2) an incident of which the person received information due to a disclosure made at a public awareness event regarding Title IX Misconduct sponsored by a BCM or by a student organization affiliated with the institution.
e.     Any person who makes a good faith report of Title IX Misconduct, assists in the investigation of the reported Title IX Misconduct, or testifies in the Live Hearing arising out of such report, may not be subjected to any disciplinary action by BCM for any violation by the person of BCM’s code of conduct reasonably related to the incident for which suspension or expulsion from the institution is not a possible punishment. This subsection does not apply to a person who perpetrates or assists in the perpetration of the incident reported.
f.      BCM shall terminate the employment of an employee whom BCM determines in accordance with BCM’s disciplinary procedure to have either failed to make a report required by this section or who, with the intent to harm or deceive, knowingly makes a report that is false.
 
2.     Traditional Reporting to the College: Filing a Report. Individuals who have experienced Title IX Misconduct may file a report with the BCM Title IX Coordinator. Reports may be made to the College even if police conclude there is insufficient evidence for criminal charges, or the Complainant does not want to participate further in the College’s investigation process or file a Formal Complaint. Online reports may be filed through the Integrity Hotline, and reports may otherwise be filed in-person, by telephone, through interoffice mail, U.S. Mail, or email to:

Title IX Coordinator

 

Toni Marie Gray

Director, Title IX & Disability Services

Office of Institutional Diversity, Inclusion, & Equity

 

title-ix@bcm.edu

Mail Stop: BCM 411

(713) 798-8137

Deputy Title IX Coordinator

Employee Relations Team 

Office of Human Resources

employeerelations@bcm.edu

6624 Fannin Street, Suite 1800

Mail Stop: BCM 325

(713) 798-4346

  
3.     Anonymous Reporting to the College. Individuals who do not have a duty to report under this Policy and who wish to remain anonymous may report by telephone or in writing via the Integrity Hotline phone or web portals. All reports of Title IX Misconduct are forwarded to the Title IX Coordinators for processing. BCM takes seriously and investigates all reports received; however, the continuing anonymity of the Reporter may hinder the results of the investigation and the College’s ability to stop the behavior, remedy its effects, and prevent recurrence.
·         Integrity Hotline: 855-764-7292 or https://secure.ethicspoint.com (Enter “Baylor College of Medicine” as the Organization Name)
 
E.    Supportive Measures. BCM reserves the right to provide non-disciplinary, non-punitive individualized services, as reasonably available, to the Complainant and/or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to BCM’s Education Program or Activity without unreasonably burdening the Complainant or the Respondent. Measures may include, but are not limited to:
1.     Counseling;
2.     Extensions of deadlines or other course-related adjustments without penalty;
3.     Modifications of work or class schedules, including arranging for a Complainant or Respondent to withdraw from a course without penalty;
4.     Mutual restrictions on contact between the parties (i.e., mutual no contract order);
5.     Changes in work, academic, extracurricular or housing locations;
6.     Leaves of absence;
7.     Campus escort services and increased security of certain areas of campus; and
8.     Providing access to counseling, medical and/or academic support services.
BCM will maintain as confidential any supportive measures provided to the Complainant or Respondent to the extent that maintaining such confidentiality would not impair the ability of BCM to provide the supportive measures. To the greatest extent practicable based on the number of counselors employed by the institution, BCM shall ensure that each Complainant, Respondent and Reporter are offered counseling provided by a counselor who does not provide counseling to any other person involved in the incident.
 
F.    Administrative Leave and Emergency Removal. BCM reserves the right to undertake any action it deems necessary to ensure the safety of BCM Community Members in response to an allegation of Title IX Misconduct, including interim measures to ensure safety of all parties after a report has been made and while an investigation or adjudication process may be pending. Measures may include, but are not limited to:
1.     Administrative Leave – BCM may place a non-student employee Respondent on administrative leave during the pendency of the grievance process outlined in this policy.  
2.     Emergency Removal – BCM may remove a Respondent from BCM’s Education Program or Activity on an emergency basis if, after an individualized safety and risk analysis, BCM determines there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Title IX Misconduct. BCM will provide a Respondent with notice and an opportunity to challenge the emergency removal decision immediately following the removal.
 
G.    False Information. An individual found to have knowingly and in bad faith provided materially false information during the course of report, Formal Complaint, an investigation, or grievance proceeding under this Policy may be subject to disciplinary action up to an including dismissal or separation from the College.  A determination regarding responsibility, alone, is not sufficient to conclude that any party or witness made a materially false statement in bad faith. The Title IX Coordinator, Decision-Maker, or Appeal Officer may refer allegations of false information to the appropriate administrator for consideration under the applicable policy or conduct of conduct, including the BCM Code of Conduct (31.1.01).
 
H.    Retaliation. BCM will not tolerate Retaliation in response to or in connection with any report of Title IX Misconduct, and may impose interim or permanent sanctions against individuals who retaliate in violation of this Policy. Any party who believes that they have experienced Retaliation should report the incident immediately to either or both BCM Title IX Coordinators identified in this Policy. Upon notice of alleged Retaliation, the College will take necessary steps to provide a safe learning and working environment, in accordance with this Policy.
 
I.      Clery Reporting. Any incident that meets this Policy’s definition of Title IX Misconduct is considered a crime for purposes of Clery Act reporting. Consistent with Clery Act reporting obligations described in the Sexual Misconduct and Other Prohibited Conduct Policy (02.2.26), the Director of Title IX & Disability Services (or Designee) will compile statistical and programmatic information about incidents of Title IX Misconduct, and provide the information to the BCM Security Office for the purpose of annual Clery Reporting and inclusion in the Annual Security Report.
 
V. Responsibilities
A.    Title IX Coordinator – The Title IX Coordinator is the designated administrator who monitors compliance with this Policy, including but not limited to training, education, prevention efforts, communication with stakeholders, and oversight of investigation and adjudication procedures for all reported policy violations. With respect to the training of designated Title IX investigators, the Coordinator will facilitate assignment of mandatory education and training, whether in the form or online modules or other training, to include trauma-informed investigation.
B.    Investigator – Once a Formal Complaint is filed, the Investigator will conduct an inquiry into the allegations of Title IX Misconduct and create an investigative report that fairly summarizes relevant Evidence.
C.    Confidential Employee – Confidential Employees may speak confidentially with students enrolled at BCM concerning Title IX Misconduct (see Section IV.C.1, above).
D.    Advisor – During a Live Hearing, only the Hearing Officer and the Complainant’s and Respondent’s Advisors are permitted to ask the other party or any witnesses relevant questions and follow-up questions. The Advisor may but need not be a licensed attorney. BCM will not unreasonably delay the Investigation and/or adjudication of a reported violation of this Policy due to the unavailability of a selected Advisor. An Advisor who fails to adhere to this Policy or otherwise unreasonably disrupts an Investigation or Live Hearing taking place pursuant to this Policy may be removed by BCM.
E.    Hearing Officer – The Hearing Officer will conduct the Live Hearing and may perform certain limited tasks, such as maintaining the decorum of the Live Hearing.
F.    Decision-Maker – The Decision-Maker will determine the relevance of questions asked by Advisors during Live Hearings, and will make a written determination regarding responsibility by applying the preponderance of the evidence standard and may impose sanctions as appropriate.
G.    Appeal Officer – The Appeal Officer will make a final determination regarding responsibility if either the Complainant or Respondent appeals the written determination. For appeals requested by students, the Provost or designee will serve as the Appeal Officer. For appeals requested by faculty or staff, the Director of Human Resources or designee will serve as the Appeal Officer.
 
VI. Procedures for Implementation and Review
A.    Misconduct and Grievance Procedures. BCM’s Title IX Misconduct and Grievance Procedures (02.2.22) govern any and all disciplinary or grievance proceedings and appeals that arise out of alleged violations of this Policy.
 
B.    Sanctions for Violations of this Policy.
1.     Respondents found to have engaged in Sexual Assault will be removed from the BCM community, i.e., employees will be terminated and students and trainees will be dismissed.
2.     Respondents who are found to have engaged in other Title IX Misconduct may face one or more of the following sanctions, depending on the severity of the reported incident and consideration of any previous policy violations:
a.     Mandatory educational programs (e.g., sexual harassment education seminar);
b.     Mandatory training programs (e.g., sensitivity training);
c.     Issuance of a No Contact Order;
d.     School and/or program-specific disciplinary action, such as:
1)    Formal Warnings,
2)    Professionalism citation,
3)    Adverse Actions, e.g., probation, suspension, non-reappointment, failure to promote, dismissal;
e.     Administrative leave of absence;
f.      Restriction(s) on or removal from a work, academic, or extracurricular activity, duty, or environment;
g.     Employment-specific disciplinary action, such as:
1)    Verbal or written warning,
2)    Probation, and
3)    Termination of employment.
 
C.    Recordkeeping. The College shall maintain records of each investigation under this Policy. Any record created to investigate an allegation, regardless of later dismissal or other resolution of the allegation, will be maintained for a minimum of seven years, and maintained in accordance with BCM’s Record Retention Policy (08.4.05).
 
D.    Policy Review and Update. This Policy shall be reviewed and revised as necessary, but at least every 2 years.
 
VII. Stakeholder Compliance
N/A
 
VIII. Tools
N/A
 
IX. Related Policies
o    see also BCM’s Notice of Nondiscrimination;  
·         31.1.01 – Code of Conduct;
 
X. Applicable Laws, Regulations & Standards
A.    Federal and State Laws:
a.     20 U.S.C. § 1681 et seq (Title IX of the Education Amendments of 1972);  
b.     34 U.S.C. §§12291 – 12512 (Violence Against Women Reauthorization Act of 2019);
c.     20 U.S.C. § 1092 (Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act); See also 20 U.S.C. § 1092(f) (Campus Sexual Violence Elimination Act);
d.     20 U.S.C. § 1232g (Family Educational Rights and Privacy Act);
 
B.    Regulations:
a.     34 C.F.R. Part 106, as amended (Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance)
b.     34 C.F.R. Part 668; see § 668.46 (Institutional Security Policies and Crime Statistics); see also Appendix A to Subpart D of Part 668 (Crime Definitions in Accordance with the FBI’s UCR Program).
c.     34 C.F.R. § 99 (FERPA regulations);