HR0280-M Sexual Harassment & Other Discriminatory Harassment

SECTION 1

INTRODUCTION

1.1 Overview

The University of Tennessee at Martin is committed to creating and maintaining a safe and nondiscriminatory learning, living, and working environment free from Sexual Harassment (including Sexual Assault, Domestic Violence, Dating Violence, and Stalking), Sexual Exploitation, and Retaliation (collectively, “Prohibited Conduct”). Prohibited Conduct will not be tolerated and will be grounds for disciplinary action up to and including suspension from the University and termination of employment.

The primary purposes of this Policy on Sexual Harassment, Sexual Assault, Dating and Domestic Violence and Stalking (“Policy”) are to: (1) define, eliminate, prevent, and remedy the effects of Prohibited Conduct; (2) identify care, support, and reporting options for students and employees; (3) explain the obligations of employees to report Prohibited Conduct to the University; and (4) identify the grievance procedures the University will follow to thoroughly, equitably, and promptly investigate and resolve reports of Prohibited Conduct. Additional information about the University’s procedures and training and prevention programs relating to Prohibited Conduct can be found online at https://www.utm.edu/offices-and-services/office-of-equity-and-diversity/titleix/.

1.2 Scope and Applicability

1.2.1 Individuals Covered by This Policy

This Policy applies to the conduct of and protects:

  • Students of the University of Tennessee at Martin
  • Employees and affiliates of the University[1]; and
  • University contractors and third parties participating or attempting to participate in the University’s operations or education program or activity.

This Policy applies regardless of the Complainant’s or the Respondent’s sex, sexual orientation, gender identity, or gender expression. Prohibited Conduct can occur between individuals regardless of their relationship status and can occur between people of the same or of different sexes, sexual orientations, gender identities, or gender expressions.

  • The “Complainant” ” means an individual who is alleged to be the victim of conduct that could constitute Prohibited Conduct, regardless of whether that person makes a report or seeks action under this Policy.
  • The “Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct.

Those terms do not imply pre-judgment concerning whether Prohibited Conduct occurred. Other key terms used in this Policy are defined in other places in this Policy and are capitalized throughout this Policy.

1.2.2 Jurisdiction

With respect to employees and other non-students, this Policy applies to conduct which: (i) occurs on University-controlled property; (ii) occurs in the context of a University education program or activity, including University employment; and/or (iii) occurs outside the context of a University education program or activity, but has continuing adverse effects or creates a sexually hostile environment on University-controlled property or in any University education program or activity, including University employment.

The University’s jurisdiction concerning misconduct by students is governed by the University’s Standards of Conduct (“Code”). The Code applies to Prohibited Conduct which occurs on University-controlled property. The Code also applies to Prohibited Conduct that occurs off of University-controlled property in certain situations, including Prohibited Conduct which occurs in connection with a University-affiliated activity including if the conduct adversely affects the interests of the University, including but not limited to, conduct which (1) occurs in connection with a University-affiliated activity, including but not limited to, an overseas study program or a clinical, field, internship, or in-service experience; (2) involved another member of the University community; or (3) threatens, or indicates that the student poses a threat to, the health or safety of him/herself or others or the security of any person’s property. The University may address Prohibited Conduct that occurs off-campus regardless of whether the University has a duty under Title IX to address the conduct.

The University may address Prohibited Conduct that occurs off-campus regardless of whether the University has a duty under Title IX to address the conduct.

1.2.3 Effective Date

The effective date of this Policy is August 14, 2020. This Policy applies to all Prohibited Conduct reported to have occurred on or after August 14, 2020. If the Prohibited Conduct reportedly occurred prior to August 14,2020, then: (1) the report will be evaluated using definitions of misconduct contained in applicable University policies in effect on the date the reported Prohibited Conduct occurred; and (2) other aspects of the University’s response to the report (e.g., grievance procedures) will be based on this Policy.

1.2.4 Other University System Policies

Except for University of Tennessee System Safety Policy 0575 (Programs for Minors)

(policy.tennessee.edu/safety_policy/sa0575/) and as otherwise provided in this Policy, this Policy takes precedence over other University policies and procedures concerning Prohibited Conduct in the event of a conflict.

In addition, for employees, conduct that is not Prohibited Conduct under this Policy may also violate other federal or state antidiscrimination laws, including Title VII, and other University policies, including, without limitation: University of Tennessee System Human Resources Policies 0220 (“Equal Employment Opportunity Affirmative Action and Diversity”) (policy.tennessee.edu/hr_policy/hr0220/), 0280 (“Sexual Harassment and Other Discriminatory Harassment”) (policy.tennessee.edu/hr_policy/hr0280/), and 0580 (“Code of Conduct”) (policy.tennessee.edu/hr_policy/hr0580/).

Consensual romantic or sexual relationships between members of the University community are subject to other University policies. For example, the University’s policy on amorous or sexual relationships between faculty and students can be found in Section 5.3.2 in the University of Tennessee at Martin Faculty Handbook which is available at utm.edu/gateways/faculty.php. Even if an amorous or sexual relationship between members of the University community begins as consensual and welcome, it can evolve into situations that lead to allegations of Prohibited Conduct.

1.3 Academic Freedom and First Amendment Rights

This Policy is not intended to, and will not be used to, infringe on academic freedom or to censor or punish students, faculty, or staff who exercise their First Amendment rights, even though such expression may be offensive or unpleasant.

SECTION 2

PROHIBITED CONDUCT

2.1 INTRODUCTION

This Policy prohibits the following conduct:[2]

  • Sexual Harassment o Sexual Assault
    • Rape
    • Fondling
    • Incest
    • Statutory Rape o Dating Violence o Domestic Violence o Stalking
  • Sexual Exploitation
  • Retaliation

Section 2.2 contains definitions of Prohibited Conduct, and Section 2.3 contains definitions of other terms used in the definitions of Prohibited Conduct.

2.2 DEFINITIONS OF PROHIBITED CONDUCT

2.2.1 Sexual Harassment3

“Sexual Harassment” is conduct on the basis of sex that satisfies one or more of the following:

  1. An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;
  2. 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 University’s education program or activity; or
  3. Sexual Assault, Dating Violence, Domestic Violence, and/or Stalking.

For the definition of Sexual Harassment, “reasonable person” means a reasonable person under similar circumstances as and with similar identities to the complainant.

To determine whether words and/or conduct constitute Sexual Harassment, the University will consider the totality of the circumstances, including without limitation: the context in which the conduct and/or words occurred; and the frequency, nature, and severity of the words and/or conduct.

In no event shall the term “Sexual Harassment” be construed to prohibit speech protected by the First Amendment to the United States Constitution (e.g., mere insulting or offensive speech).

2.2.2 Sexual Assault

“Sexual Assault” is any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent. Sexual Assault includes Rape, Fondling, Incest, and Statutory Rape.

2.2.3 Rape

3 With respect to conduct by employees, the University also prohibits sexual harassment in accordance with

University of Tennessee System Human Resources Policy 0280 (“Sexual Harassment and Other Discriminatory Harassment”) (policy.tennessee.edu/hrpolicy/hr0280). Conduct by employees that does not necessarily violate this Policy may be a violation of University of Tennessee System Human Resources Policy 0280. Complaint of sexual harassment prohibited by University of Tennessee System Human Resources Policy 0280 should be reported to the Title IX Coordinator and will be handled in accordance with the procedures in https://www.utm.edu/offices-and-services/office-of-equity-and-diversity/discrimination-complaint-procedure.php

“Rape” means 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.

2.2.4 Fondling

“Fondling” means 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/her age or because of his/her temporary or permanent mental incapacity.

2.2.5 Incest

“Incest” means sexual intercourse between persons who are related to each other within degrees wherein marriage is prohibited by law.

2.2.6 Statutory Rape

“Statutory Rape” means sexual intercourse with a person who is under the statutory age of consent.

2.2.7 Dating Violence

“Dating Violence” means 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.

2.2.8 Domestic Violence

“Domestic Violence” includes 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 the domestic or family violence laws of the jurisdiction in which the crime occurs, 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 the jurisdiction in which the crime occurs.

In cases involving allegations of mutual acts or threats of acts of violence, the designated investigator(s) will, when appropriate, identify the primary aggressor in the situation based on the totality of the information gathered, including without limitation: the history of violence between the parties; the relative severity of the injuries inflicted on each person; information gathered from the persons involved in the situation and witnesses to the situation; and whether the acts or threats were done in self-defense. The primary aggressor will be considered the Respondent for purposes of evaluating Relationship Violence.

2.2.9 Stalking

“Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—

(A)fear for his or her safety or the safety of others; or

(B)suffer substantial emotional distress.

“Course of conduct” means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates with or about another person, or interferes with another person’s property. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. For the definition of Stalking, “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant.

2.2.10 Sexual Exploitation

“Sexual Exploitation” means taking sexual advantage of another person, without that person’s active agreement. An active agreement is words and/or conduct that communicate a person’s willingness to participate in an act. A person cannot actively agree to an act if: (1) the person is Incapacitated, if either the person claiming to have obtained the other person’s active agreement knows that the other person is Incapacitated or a reasonable person would know that the other person is Incapacitated; or (2) the person is Forced to act or participate in an activity.

Examples of Sexual Exploitation include, without limitation:

  • Surreptitiously observing, photographing, audiotaping, videotaping, or recording an image of a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
  • Allowing or enabling a person to surreptitiously observe, photograph, audiotape, videotape, or record an image of another person who is engaging in sexual act(s), or another person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/ audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
  • Showing, posting, or sharing video, audio, or an image that depicts a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/ audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy, if all persons who are depicted have not agreed to having the video/audio/image shown, posted, or shared;
  • Prostituting another person or engaging in sex trafficking;
  • Knowingly exposing another person to a sexually transmitted infection or disease without informing the other person that one has a sexually transmitted infection or disease;
  • Forcing a person to participate in sexual act(s) with a person other than oneself;
  • Forcing a person to expose the person’s breasts, buttocks, groin, or genitals;
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share video, audio, or an image that depicts the person’s nudity or depicts the person engaging in sexual act(s);
  • Forcing a person to take an action of a sexual nature against that person’s will by threatening to disclose information that would harm a person’s reputation;
  • Forcing a person to take an action against that person’s will by threatening to disclose information of a sexual or intimate nature that would harm a person’s reputation; or
  • Causing or requesting an incapacitated person to expose the person’s breasts, buttocks, groin, or genitals or to participate in Sexual Contact or Sexual Penetration with a person other than oneself.

2.2.11 Retaliation

“Retaliation” means to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured 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.

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by this Policy constitutes retaliation.

  1. The exercise of rights protected under the First Amendment does not constitute retaliation.
  2. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation. Retaliation is a violation of this Policy regardless of whether the underlying allegation of a violation of this Policy is ultimately found to have merit. Determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

2.3 RELATED DEFINITIONS: CONSENT; FORCE; INCAPACITATION

2.3.1 Consent

“Consent” means an active agreement to participate in a sexual act. An active agreement is words and/or conduct that communicate a person’s willingness to participate in a sexual act.

Examples of sexual act(s) include, without limitation: vaginal intercourse; anal intercourse; oral sex; any other intrusion, however slight, of a person’s finger or any object into any other person’s genitals or anus; the intentional touching of a person’s intimate parts (genital area, groin, inner thigh, buttock or breast), the intentional touching of the clothing covering the immediate area of a person’s intimate parts, or the intentional touching of any other person with a person’s own intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual gratification.

Consent can be revoked at any time.

Valid Consent cannot be given if:

  • A person is Incapacitated and a Reasonable Person in the same situation as the Respondent would have known that the person is Incapacitated;
  • A person is Forced; or
  • The sexual penetration of a person by the Respondent would constitute mitigated statutory rape, statutory rape, or aggravated statutory under state law, based on the ages of the Respondent and the other person.

Appendix B explains how the University determines whether Consent was obtained. Persons subject to this Policy are responsible for understanding and conforming their conduct to the standards described in this Section 2 and Appendix B.

2.3.2 Force

“Force (Forced)” means words and/or conduct that, viewed from the perspective of a reasonable person, substantially impair(s) a person’s ability to voluntarily choose whether to take an action or participate in an activity.

Examples of Force include, without limitation:

  • Physical force (e.g., hitting, punching, slapping, kicking, restraining, choking, kidnapping, using a weapon, blocking access to an exit);
  • Words and/or conduct that would cause a Reasonable Person to fear:
    • Physical force or other harm to the person’s health, safety, or property, or a third person’s health, safety, or property;
    • Loss or impairment of an academic benefit, employment benefit, or money; o Disclosure of sensitive personal information or information that would harm a person’s reputation;
    • Disclosure of video, audio, or an image that depicts the person’s nudity or depicts the person engaging in a sexual act(s). ; or
    • Other immediate or future physical, emotional, reputational, financial, or other harm to the person or a third person.

2.3.3 Incapacitation

“Incapacitation” means that a person lacks the ability to actively agree to sexual activity because the person is asleep, unconscious, under the influence of an anesthetizing or intoxicating substance such that the person does not have control over their body, is otherwise unaware that sexual activity is occurring, or their mental, physical, or developmental abilities renders them incapable of making a rational informed judgment. Incapacitation is not the same as legal intoxication.

A person violates this Policy when they engage in sexual activity with another person who is Incapacitated under circumstances in which a reasonable person in the same situation would have known the other person to be Incapacitated. For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.

Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances.

SECTION 3

GRIEVANCE PROCEDURES USED TO ADDRESS PROHIBITED CONDUCT

The University has specific grievance procedures for addressing reports of Prohibited Conduct after the report to the Title IX Coordinator (Section 4.5.2.3). The procedures the University uses are based on the nature of the allegations and the relationship of the Respondent to the University.

3.1 GRIEVANCE PROCEDURES WHEN THE RESPONDENT IS A STUDENT

Appendix C describes the procedures the University uses to investigate and resolve allegations of Prohibited Conduct when the Respondent is a student.

3.2 GRIEVANCE PROCEDURES WHEN THE RESPONDENT IS AN EMPLOYEE

Appendix D and D.1 describe the procedures the University uses to investigate and resolve allegations of Prohibited Conduct when the Respondent is a staff member.

3.3 PROCEDURES WHEN THE RESPONDENT IS BOTH A STUDENT AND AN EMPLOYEE

When the Respondent is both a student and an employee: the Title IX Coordinator will determine the appropriate procedures to use to address the report of Prohibited Conduct based on the facts and circumstances of the situation.

3.4 PROCEDURES WHEN THE RESPONDENT IS A THIRD PARTY

Appendix D describes the procedures the University uses to investigate and resolve allegations of Prohibited Conduct when the Respondent is a third party, such as a visitor or vendor. The University’s ability to take disciplinary, remedial, and/or protective measures with respect to a third party will depend on the nature of the relationship between the third party and the University. The Title IX Coordinator (or designee) has the authority to alter the manner of resolving a report of Prohibited Conduct alleged to be committed by a third party if the procedures in Appendix D are not appropriate.

SECTION 4

SUPPORTIVE MEASURES AND REPORTING OPTIONS

4.1 Overview

Complainants and Respondents have a wide range of options for care, support, and reporting options in response to Prohibited Conduct. For comprehensive information about those options, students and employees should refer to Appendix A. Third parties should contact the University’s Title IX Coordinator.

4.2 Title IX Coordinator/Title IX Officials

The University is subject to the requirements of Title IX of the Education Amendments of 1972, which states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .

The University’s Title IX Coordinator is responsible for coordinating the University’s efforts to comply with and carry out its responsibilities under Title IX.

The University’s Title IX Coordinator is:

Dominique Crockett

212 University Center, The University of Tennessee at Martin,

Martin, TN 38238 (731) 881-3505 titleix@utm.edu

https://www.utm.edu/offices-and-services/office-of-equity-and-diversity/

Reports or complaints of Prohibited Conduct or questions about the University’s policies, procedures, resources, or programs concerning any of those issues, may be directed to the University’s Title IX Coordinator or other Title IX Officials, who are trained and accessible to members of the University community for consultation and assistance.

The term “Title IX Official” in this Policy means the Title IX Coordinator, a Deputy Title IX Coordinator, or one of their designees.

The responsibilities of Title IX Officials are described in more detail at https://www.utm.edu/offices-and-services/office-of-equity-and-diversity/titleix/. The Title IX Coordinator is available to meet with any student, employee, or third party to answer questions about this Policy. Inquiries or complaints concerning Title IX also may be referred to the United States Department of Education, Office for Civil Rights, 61 Forsyth Street, S.W., Suite 19T10, Atlanta, GA 30303-8927, (404) 974-9406 (phone), (404) 974-9471 (fax), OCR.Atlanta@ed.gov.

The University’s Deputy Title IX Coordinators are:

NAME TITLE(S) CONTACT INFORMATION
Danelle Fabianich Sr. Women’s Athletic Director (731) 881-3688

4.3 Distinction between Privacy and Confidentiality

Under this Policy, privacy should be distinguished from confidentiality.

  • Confidentiality: If a Complainant desires to communicate with someone who, by law or by University policy, can keep information confidential, then the Complainant should contact one of the resources outlined in Section 4.4.
  • Privacy: Information communicated to a Title IX Official (Section 4.2) or a Mandatory Reporter (Section 4.5.2.1) will be kept as private as possible, which means that the information will initially be shared only with the University employees whom a Title IX Official determines need to be involved in responding to the incident, except as required or permitted by law. When speaking with a Title IX Official, Complainants are free to limit the details they share while they decide whether to report an incident to the University.

4.4 Confidential Care and Support

The persons identified below can keep information communicated to them confidential and will not communicate such information to a Title IX Official, the University, the police, or any other third party, unless required or permitted by law.[3] Complainants may pursue these confidential care, support, and reporting options regardless of whether they choose to report the incident to the University or the police (Section 4.5).

4.4.1 Confidential Employees

A student or employee may speak with a Confidential Employee if they do not desire action by the University but desire to confide in a University employee confidentially. Confidential Employees are University employees who can keep information confidential because they hold a valid license in a profession for which Tennessee law recognizes a confidential relationship between a professional and a professional’s client or patient or because the University has deemed the employee as someone who can keep information confidential. Appendix A identifies the University’s Confidential Employees and explains the limited situations in which Confidential Employees are required or permitted by law to disclose confidential information.

4.4.2 Confidential Care and Support Outside of the University Community

Students and employees also have options to receive confidential care and support from someone who is not affiliated with the University. These confidential options also are described in Appendix A.

4.5 Reporting Options

A Complainant has multiple options for reporting Prohibited Conduct. A Complainant may report Prohibited Conduct to the University, to the police, to both, or to neither.

4.5.1 Report to the Police

Prohibited Conduct may constitute both a violation of this Policy and criminal law. Therefore, the University encourages Complainants to report incidents of Prohibited Conduct to the police. Prompt reporting of an incident to the police is especially critical because the collection and preservation of evidence is essential for police investigations and criminal prosecutions. A Complainant has the right to decline to report the incident to the police. Even if a Complainant does not report the incident to the police, the Complainant may still request Support Measures (Section 4.6) by reporting the incident to a Title IX Official. Appendix A provides contact information for campus and local police and information about what to expect after reporting an incident to the police. Appendix A, Sections 1.1 and 2.1, also provide suggestions about the preservation of evidence relating to Prohibited Conduct.

4.5.2 Report to the University

A Report means notification to the Title IX Coordinator or designee of Prohibited Conduct, (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute Prohibited Conduct). A Report may be made 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 notification. 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.

A person who wants to report Prohibited Conduct to the University should contact a Title IX Official (Section 4.2). If a person reports Prohibited Conduct to a University employee who is not a Title IX Official, then the employee’s responsibility to report that information to the University depends on whether the employee is a Mandatory Reporter.

4.5.2.1 Mandatory Reporters

A Mandatory Reporter is a University employee who is required to report information about known or suspected Prohibited Conduct to a Title IX Official, whether the employee received the information by means of a complaint, report, personal observation, or otherwise, including information learned from third parties. A University employee is almost always a Mandatory Reporter when either the Complainant or Respondent is a student. Employees who have questions about their reporting responsibilities, or students who have questions about an employee’s reporting responsibilities, should contact the Title IX Coordinator.

A University employee is a Mandatory Reporter if either of the following apply:

  1. The Prohibited Conduct involves either a Complainant who is a student or a Respondent who is a student.

OR

  1. The employee is the supervisor of either a Complainant who is an employee or a Respondent who is an employee, or otherwise has the authority to redress the Prohibited Conduct (e.g., human resources administrators, OED director, Title IX Officials, department heads, deans, vice chancellors, chancellors, vice presidents, campus police).

Exceptions – No Duty to Report:

  • The employee is a Confidential Employee (Section 4.4.1) and receives the information while acting in a professional, confidential capacity;
  • The employee receives the information during a public awareness event such as “Take Back the Night,” candlelight vigils, protests, “survivor speak outs” or other public forums including online forums such as social networking sites and blogs;
  • The employee receives the information through a person’s participation as a subject in an Institutional Review Board-approved human subjects research protocol;
  • The employee receives information through an in-class discussion, a class paper, or other academic assignment; or
  • The employee is a student employee (e.g., graduate assistant) and did not receive notice of the incident in the student employee’s University employment capacity.

Mandatory Reporters are required to inform a Title IX Official about all information known to them about the Prohibited Conduct. Failure to adhere to one’s duty to report Prohibited Conduct to a Title IX Official may result in disciplinary action, up to and including termination of employment.

The Title IX Coordinator or designee will evaluate allegations that a Mandatory Reporter failed to report Prohibited Conduct to a Title IX Official. In evaluating those allegations, the Title IX Coordinator or designee may meet with the Complainant, the Mandatory Reporter, the Mandatory Reporter’s supervisor or campus unit, and other witnesses who can provide information. The Title IX Coordinator or designee will determine whether further investigation is warranted on a case-by-case basis, including but not limited to, the Mandatory Reporter’s role within the University; the nature and scope of the suspected Prohibited Conduct; and the risk to the University community if the report of Prohibited Conduct were substantiated. The Title IX Coordinator may recommend additional education and training and other remedial or corrective actions.

In some cases, the Title IX Coordinator or designee may refer the allegations that a Mandatory Reporter failed to report Prohibited Conduct to the Office of Equity & Diversity which will conduct an investigation. The Office of Equity & Diversity will make findings of fact and will determine whether, by a preponderance of the evidence, a Mandatory Reporter failed to report Prohibited Conduct. The Title IX Coordinator and the appropriate University administrator will review the findings. The administrator will determine in writing whether to accept the Office of Equity & Diversity’s findings and conclusion and may include a description of remedial or corrective actions the University will implement. The Title IX Coordinator may also recommend remedial or corrective actions.

Appendix E explains other actions that a Mandatory Reporter must take, should take, and must not take in response to notice of Prohibited Conduct. Complainants who are Mandatory Reporters are not required to report or take any other action identified in this section with respect to Prohibited Conduct to which they personally have been subjected.

University employees also may have reporting responsibilities under other University policies, such as:

  • Child Abuse: Employees who receive information about suspected child abuse or child sexual abuse must comply with University of Tennessee System Safety Policy 0575 (Programs for Minors) (policy.tennessee.edu/safety_policy/sa0575/). Safety Policy 0575 takes precedence over this Policy with respect to reporting suspected child abuse and child sexual abuse. Note that under Tennessee law, the obligation to report child abuse or child sexual abuse is not limited to situations involving University-related activities and programs.
  • Campus Security Authorities – Clery Act: Mandatory Reporters who have been designated by UTM

Department of Public Safety (UTMDPS) as Campus Security Authorities for purposes of compliance with the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (“Clery Act”) satisfy their reporting duties with respect to this Policy and the Clery Act if they report the incident to a Title IX Official. The Title IX Official is responsible for timely communicating the appropriate non-personally identifying information to UTMDPS. Employees who have been designated as Campus Security Authorities may have an obligation to report an incident to UTMDPS even when they do not have an obligation to report the incident under this Policy.

Questions about the reporting obligations of Campus Security Authorities should be directed to Lt. Chad Worley, the University’s Clery Compliance Coordinator, at cworley@utm.edu or (731) 881-7777.

4.5.2.2 Benefits of Reporting Prohibited Conduct to the University

Reporting Prohibited Conduct to the University enables the University to provide Supportive Measures and information regarding the University’s grievance process. If an incident is not reported to the University, then the University will not be able to discuss the availability of Supportive Measures or the grievance process with the Complainant. Complainants are not required to report Prohibited Conduct if they do not want the University to respond to the incident or assist with Supportive Measures (Section 4.6). A Complainant may opt to report an incident of Prohibited Conduct but decline to disclose the identity of the Respondent; in that case, a Title IX Official will offer Supportive Measures to the Complainant, but the University’s ability to investigate the incident and pursue disciplinary action against the Respondent or take other remedial action will be limited.

4.5.2.3 Initial Response and Assessment by the Title IX Coordinator

Appendix A, Section 2.3.2 describes the steps the Title IX Coordinator will take after receiving a report of Prohibited Conduct.

4.5.2.4 Limited Action

When the University receives notice of a potential incident of Prohibited Conduct, the Title IX Coordinator will communicate with the Complainant about the following:

  • How the Complainant can file a formal complaint;
  • Supportive measures that the University can take in order to support the Complainant; and
  • On and off campus resources that the Complainant can access for assistance.

If the Complainant declines to respond to outreach, or states that they do not wish to file a formal complaint or participate in an investigation, the University will generally take Limited Action. Limited Action includes providing supportive measures like academic support, safety escorts, no contact directives, and campus support services. For more information about supportive measures, please visit section 4.6.

There are limited circumstances in which the Title IX Coordinator may determine that the University must continue with an investigation without the Complainant’s participation or assent, because of the University’s commitment to providing a safe and non-discriminatory learning, living, and working environment free from Prohibited Conduct. These limited circumstances are referred to as a University initiated investigation. For example, if the University has credible information that the Respondent is alleged to have committed one or more other acts of Prohibited Conduct, then the balance of factors might compel the University to investigate the allegation, and, if appropriate, pursue disciplinary action. When evaluating whether the University must conduct a University- initiated investigation, the Title IX Coordinator will consider a range of factors, including, without limitation, the following factors:

  • The risk that the Respondent will commit additional acts of Prohibited Conduct, such as:
    • Whether there have been other reports of Prohibited Conduct or other relevant misconduct concerning the same Respondent, whether or not the incidents occurred while the Respondent was a University student or employee;
    • Whether the Respondent threatened further Prohibited Conduct or other misconduct against the Complainant or others; and
    • Whether the Prohibited Conduct was committed by multiple perpetrators;
  • The nature and scope of the Prohibited Conduct, including whether the Prohibited Conduct was perpetrated with a weapon;
  • The ages and roles of the Complainant and the Respondent;
  • Whether the University can pursue the investigation without the participation of the Complainant (e.g., whether there are other available means to obtain relevant evidence of the Prohibited Conduct such as security cameras or physical evidence);
  • Whether the Complainant’s report reveals a pattern of perpetration (e.g., perpetration involving illicit use of drugs or alcohol) at a given location or by a particular group;
  • The University’s commitment to providing a safe, non-discriminatory environment, including the risk posted to any individual or to the campus community by not proceeding with an investigation; and
  • Complainant safety.

If the Title IX Coordinator determines the University must conduct an investigation, then the Title IX Coordinator will inform the Complainant of the decision prior to starting/continuing the grievance process and will, to the extent possible and unless otherwise required by law, only share information with people responsible for handling the University’s response. The University will honor a request by the Complainant that the University inform the Respondent that the Complainant asked the University not to investigate or seek discipline. The University will take ongoing steps that it determines are reasonable and appropriate to protect the Complainant from Retaliation or harm and may work with the Complainant to create a safety plan. The University will also assist the Complainant to access the support resources identified in Appendix A, and inform the Complainant of the right to report a crime to campus or local law enforcement (and provide the Complainant with assistance in reporting if the Complainant requests it). The University will not tolerate Retaliation against any person, including the Complainant.

Because the University is under a continuing obligation to address the issues of Prohibited Conduct campus-wide, reports of Prohibited Conduct (including non-identifying reports and reports for which the University only takes Limited Action) may also prompt the University to consider broader remedial action – such as increased monitoring, supervision or security at locations where the reported Prohibited Conduct occurred; increasing education and prevention efforts, including to targeted population groups; conducting additional climate assessments/victimization surveys; and/or revisiting its policies and practices.

4.5.2.5 Complainant’s Participation in an Investigation or Disciplinary Proceeding

The University will not require a Complainant to participate in any investigation, or hearing before a University Hearing Officer or board. A Complainant may be required to participate in a hearing held by an administrative judge pursuant to the Uniform Administrative Procedures Act if the Complainant receives a subpoena from a party other than the University. If a Complainant chooses not to participate in an investigation or disciplinary hearing, the University’s ability to discipline the Respondent may be affected.

4.5.2.6 Amnesty

The University recognizes that a student who is under the influence of alcohol and/or drugs at the time of an incident of Prohibited Conduct may be hesitant to report the incident to the University because of a fear of University disciplinary sanctions for the person’s own violation of the University standards of conduct. Because of the importance to the University of responding to incidents of Prohibited Conduct, a student who reports Prohibited Conduct to the University or provides information in a University investigation into alleged Prohibited Conduct will not be subject to disciplinary action by the Office of Student Conduct for personal consumption of alcohol or other drugs, or minor offenses, at or near the time of the reported incident, but may be responsible for other, more serious conduct that harmed or placed the health or safety of any other person at risk (“Amnesty”). The University may, however, initiate an educational discussion or pursue other educational remedies with the student regarding alcohol or drugs. The Title IX Coordinator has the discretion to grant Amnesty to persons other than the person who reported Prohibited Conduct (e.g., Complainant, Respondent, witnesses). The Standards of Conduct (Code) also contains a policy on Amnesty for individuals acting as Good Samaritans and students in need of emergency medical attention. This Section 4.5.2.6 does not apply to reports to the police; rather, it applies only to discipline for violations of the University’s Standards of Conduct.

4.5.2.7 False Reports

A person who makes a report of Prohibited Conduct to the University that is later found to have made materially false statement(s) in bad faith may be subject to University disciplinary action. This provision does not apply to reports made in good faith, even if an investigation of the incident does not find a Policy violation. Similarly, a person who intentionally provides materially false statement(s) in bad faith to the University during a University investigation or disciplinary proceeding action may be subject to disciplinary action.

4.6 SUPPORTIVE AND REMEDIAL MEASURES

After receiving a report of Prohibited Conduct, the Title IX Coordinator may implement supportive protective and remedial measures (“Supportive Measures”) while the University assesses, investigates, and resolves the report. Supportive Measures may be implemented upon request or at the Title IX Coordinator’s initiative.

The specific Supportive Measures implemented and the process for implementing those measures will usually be determined by the Title IX Coordinator or designee and will vary and be individualized, reasonable, and appropriate depending on the facts of each case and the student or employee status of the Complainant and the Respondent. [4]In fairly assessing the need for an individual to receive Supportive Measures, the Title IX Coordinator does not rely on fixed rules or operating assumptions in favor of one party over another.

Examples of Supportive Measures are listed in Appendix A, Supportive Measures are available to Complainants and Respondents.

Supportive Measures are available:

  • Even if the Complainant does not want to report the incident to the police;
  • Even if the Complainant does not make a formal report (The University may be limited in the Supportive Measures it can implement while keeping the identity of the Complainant private, such as: providing support services to the Complainant; changing living arrangements or course schedules, assignments, or tests; and providing increased monitoring, supervision, or security at locations or activities where the Prohibited Conduct occurred);
  • To the Complainant, the Respondent, and witnesses, when determined to be appropriate by the Title IX Coordinator or designee; and
  • Prior to, during, or after the investigation or resolution of a report of Prohibited Conduct

Individuals are encouraged to report to the Title IX Coordinator concerns about the failure of another person to abide by the terms of a Supportive Measure; however, in the event of an immediate health or safety concern individuals should call 911. The University will take immediate and responsive action to enforce a previously implemented Supportive Measure and alleged violations will be investigated and addressed by the appropriate office. The Title IX Coordinator or designee will strive to communicate with the Complainant and the Respondent throughout the grievance process to ensure that the Supportive Measures in place are necessary and effective based on the evolving needs of the parties. The Title IX Coordinator has the discretion to issue, modify, or remove any Interim Measure at any time.

With respect to non-student employees and third parties, the Title IX Coordinator may delegate the authority to determine and implement appropriate Supportive Measures.

HR0280-M Sexual Harassment & Other Discriminatory Harassment
Version: 2 // Effective: 08/01/2020
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