6.9 Procedure to Implement the University's Sexual Harassment Policy in Cases of Complaints Against Law Students

 6.9 Procedure to Implement the University's Sexual Harassment Policy in Cases of Complaints Against Law Students

Scope
The procedure is intended to clarify the investigation and enforcement provision set out in the University's Policy on Sexual Harassment when the alleged violator of the policy is a law student. These procedures apply if the complainant is a student, staff member, administrative personnel, or faculty member.

Privilege
Communications with members of the faculty and staff are not privileged. Communications with the Law School Counselor are privileged to the extent permitted by law.

6.9.01 Commencing a Complaint

A.        A complaint that a law student has violated the University's Policy on Sexual Harassment should be reported to the appropriate authority. For this purpose the appropriate authority is the Dean or Dean's delegate.

B.         The Dean or Dean's delegate should provide a copy of the Policy and these procedures to any student, staff member, or faculty member who believes that he/she has experienced a violation of the Policy. While the Dean or Dean's delegate should not advise the complainant on the validity of the complaint or act as the complainant's adviser or counselor, the Dean or Dean's delegate should render assistance necessary to enable the complainant to proceed with either an informal or formal complaint.

C.         The Dean or Dean's delegate should inform the complainant of the following options:
             1.     Commencing informal investigation and negotiations to resolve the complaint (see Provision II);
             2.     Filing a formal complaint with the Dean or Dean’s delegate (see Provision III);
             3.     Making a police report, filing an action outside the University (e.g., with the EEOC, Ohio Civil Rights Commission, Department of Education, or court of law), or both.

D.        The Dean or Dean's delegate should inform the complainant that:
             1.     A decision to proceed informally does not preclude the filing of a formal complaint at some later time.
             2.     The filing of an informal complaint is not a prerequisite to a formal complaint.
             3.     Internal University actions do not extend filing deadlines (e.g., statutes of limitations) relating to actions outside the University.
             4.     The alleged harasser normally does not have to be informed of the complainant's identity if the complainant chooses the informal complaint process (see sections 1.5, 2.2), but the alleged harasser must be informed of the complainant's identity if the complainant chooses the formal complaint process (see sections 3.3, 4.3); and
             5.     Action by the Law School on the complaint may be necessary, even if not requested by the complainant. Such actions normally will not be taken without informing the complainant in advance of such action.

E.         Once the Dean or Dean's delegate has discussed with the complainant the nature of the complaint and the options set out above, the complainant shall elect what process to follow.
If the complainant elects to pursue an informal resolution of the complaint, the procedures set out in Provision 6.10.02 shall be implemented.
If the complainant elects to file a formal complaint, the procedures set out in Provision 6.10.03 shall be implemented.
If the Dean or Dean’s delegate determines that, taking the facts alleged as true, those facts reveal a substantial violation of the Policy, or a repeat violation of the Policy such that the Dean or Dean’s delegate may be obligated to report the matter to the Bar, the Dean or Dean’s delegate may proceed with an investigation over the complainant's objections.

 6.9.02 Informal Resolution

A.        If the complainant wishes to pursue informal resolution of the complaint, the Dean or Dean’s delegate shall appoint a member of the faculty or administration to pursue an informal resolution (the negotiators). The goal of the informal resolution is to gather basic facts about the alleged conduct and negotiate a mutually agreeable resolution to the complaint.

B.         Upon receiving an informal complaint, the negotiator will discuss with the complainant the behavior that prompted the complaint; the issues involved in the complaint; the need for investigation of the complaint; and possible resolutions of the complaint. The negotiator should obtain the complainant's consent for informing the alleged harasser of the complaint. The complainant should be informed that the Law School's ability to take any action is severely limited in situations where the alleged harasser is not apprised of the complaint (see section 2.6).

C.         The scope of the investigation should be at the negotiator's discretion. Normally, the negotiator should meet with the complainant, the alleged harasser, and any other witnesses the negotiator deems helpful. Normally, the negotiator will propose a resolution of the dispute and discuss this proposal with the parties. The investigation and negotiation of informal complaints should normally be concluded within twenty- one (21) calendar days after they are made. When this is not possible, the negotiator processing the complaint should notify the parties of the delay and the reasons for such delay.

D.        Normally, within ten (10) business days of concluding the investigation and negotiation, the negotiator will notify the Dean or Dean’s delegate, the complainant, and the alleged harasser (except in instances of where confidentiality has been promised), in writing that the investigation has been concluded and if a resolution has been reached. When this is not possible, the report should be made as soon as possible thereafter.

E.         Where an informal resolution is reached, it must be approved by the Dean or Dean’s delegate. If an informal resolution is not reached, or if the complainant is not satisfied with the informal resolution, she/he again should be advised of the option of filing a formal complaint with the Dean or Dean’s delegate and of the existence of options outside the University.

F.         In the exceptional case where the alleged harasser is not notified of the complaint, the investigator may still investigate and report to the Dean or Dean’s delegate, but may recommend only corrective action that is not a sanction against the alleged harasser (e.g., that the complainant's class schedule be changed).

 6.9.03 Process for Filing Formal Complaints

 

A.        Normally, the formal complaint process is initiated by the filing of a formal written complaint by the complainant with the Dean or Dean’s delegate. In exceptional circumstances, the or Dean’s delegate can initiate the formal complaint process.

B.         The Dean or Dean’s delegate shall appoint a faculty member or administrator to be primarily responsible for the investigation of the complaint (the investigators).

C.         The Dean or Dean’s delegate or the investigator shall inform the alleged harasser of the allegations and identity of the complainant at the commencement of the process, and give her/him a copy of the policy and these procedures. The alleged harasser should be informed that retaliation against the complainant is unlawful and that the school will take steps to prevent and punish any retaliation that occurs.

D.        The purpose of the investigation is to determine whether reasonable grounds exist to believe a violation(s) of the sexual harassment policy has occurred. The investigator will interview the complainant, the alleged harasser, and other persons with relevant information. The alleged harasser will be afforded full opportunity to respond to the allegations. Throughout the investigation, steps to preserve the confidentiality of all persons involved will be taken by the investigator.

E.         Matters to be investigated include:

F.         The possible outcomes of the investigation are:

G.        Investigations of formal complaints should be concluded within thirty (30) calendar days after they are made. When it is not reasonably possible to conclude the investigation within that amount of time, the investigator will notify the complainant and the alleged harasser in writing of the delay and reasons for the delay.

H.        Upon conclusion of the investigation of a formal complaint, the investigator will prepare a written report describing his/her (1) findings of fact; (2) finding as to whether a violation of the Policy occurred; and (3) recommendations as to appropriate sanctions (if a violation occurred). The investigator's recommendations as to appropriate sanctions must be approved by the Dean or Dean’s delegate. The investigator will provide a copy of this report to both the complainant and the alleged harasser.

I.           The parties will then be given the option to resolve the matter in accordance with the investigator's findings and recommendations. The parties will also be given the option to proceed to a formal hearing. If either party chooses to proceed to a formal hearing, that party must so notify the Dean or Dean’s delegate in writing within 10 business days of receiving the investigator's report.

J.          If either party notifies the Dean or Dean’s delegate that he/she wants to proceed to a formal hearing, the Dean or Dean’s delegate will appoint a panel of 5 persons. This panel shall be composed of three faculty members (one of whom shall be designated as the chair) and two students. All panel members shall have full voting rights. No person involved in the case (e.g., as a witness, investigator, or negotiator) shall be a member of the panel. The Dean or Dean’s delegate will notify the parties in advance of who has been appointed to the panel, and the Dean will consider any objections that the parties may raise.

K.         The panel shall conduct a hearing as promptly as circumstances will allow. The hearing shall be informal and not adversarial in nature, and will be more analogous to an administrative hearing than to a judicial trial.

L.          The panel shall present its views in writing to the Dean or Dean’s delegate on whether a violation of the Policy occurred. If a majority of the panel has found that a violation occurred, then it shall also recommend appropriate sanction[s]. The panel shall also provide the Dean or Dean’s delegate with all files and records from the investigation and hearing. The panel's decision and recommendation are not binding on the Dean or Dean’s delegate.

M.      The Dean or Dean’s delegate shall make the final decision on whether the alleged harasser violated the Sexual Harassment Policy. If the Dean or Dean’s delegate decides that the alleged harasser did violate the policy, the Dean shall impose appropriate sanctions. These sanctions may take the form of counseling, verbal or written reprimands, notations in the student's file, notification of the appropriate Bar or Bars, suspensions, or other action, up to and including dismissal. The Dean's or Dean’s delegate’s decision shall be provided to the parties in writing.

N.        Within 10 business days of receiving the Dean's or Dean’s delegate’s final decision, either party may request that the President of the University review this decision for either (1) material and prejudicial departure from established procedures; and/or (2) abuse of discretion.

             1.     Whether the specific conduct alleged constitutes sexual harassment, including the type(s) of conduct; frequency of occurrence; date(s) or time period over which the conduct occurred; location of alleged occurrence(s); whether similar complaints have been made by others; and all factual circumstances upon which the complaint is based.

             2.     The specific relationship of the alleged harasser to the complainant (e.g., peer-adviser/advisee).

             3.     The effect of the alleged harasser's conduct on the complainant, including any consequences that may be attributed to the conduct.

        4.     Whether the alleged harasser was aware of the complainant's concern regarding the behavior.
             5.     Whether any prior steps were taken to resolve the complaint.

             1.     A finding that a violation of the Policy occurred; or
             2.     A finding that no violation of the Policy occurred; or
             3.     A negotiated settlement of the complaint. A negotiated settlement of the complaint may be entered at any time during this process. A negotiated settlement must be approved by both parties and by the Dean or Dean’s delegate.

             1.     Prior to the hearing, the panel may review the files and reports prepared by the investigator and negotiator.
             2.     The alleged harasser has the right to be present during the hearing, the right to question all witnesses, and the right to be present during the complainant's own witnesses and evidence.
             3.     The complainant and/or the alleged harasser may be accompanied by an attorney at the hearing. (The attorney must not be employed by Capital University.) The attorney may participate at the hearing, subject to the control of the panel chair.
             4.     The parties will be responsible for bringing their own witnesses and other evidence. The panel may also call witnesses, or provide assistance to the parties in obtaining witnesses.
             5.     The decision of the panel shall be by majority vote and shall be based on the policy and rules of the Law School and the evidence of the hearing.

 

 

 

 6.9.04 Presence of Support Persons and Confidentiality

A.        The complainant and/or alleged harasser may be accompanied at the initial complaint and subsequently as appropriate) by a friend, family member, attorney, or other individual whose presence is necessary to provide support.

B.         To the extent possible, the Dean or Dean’s delegate, the negotiator, the investigator and any hearing panel will treat as confidential all information received in connection with the filing, investigation, and resolution of complaints, except as necessary to conduct the investigation.

C.         Anonymous complaints will only be permitted to trigger the informal complaint process. See Sections 6.10.01(D), 6.10.02(B), and 6.10.03(C). 

 6.9.05 Records

Any person conducting an investigation, whether formal or informal, shall maintain a record of the investigations and hearings, consent provided, evidence gathered, and the outcome of the investigation and hearings. Records of such investigation will not be maintained in personnel files or student files unless part of a corrective action approved by the Dean or Dean’s delegate. Upon filing of a complaint outside the University, information gathered in the course of the internal investigation may be disclosed to the investigating agency.

Approved by the Law School Council April 15, 1998