ADA/504 COORDINATOR: A College employee assigned the responsibility for maintaining the College’s compliance with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Alleged violations of the ADA or Section 504 shall be subject to the Affirmative Action Policy’s Complaint Procedure as administered by the Affirmative Action Officer. The ADA/504 Coordinator is Liz Woods, Dean for Compliance, and can be contacted at 508-854-2791.
AFFIRMATIVE ACTION OFFICER (“AAO”): A College employee assigned the responsibility of administering the College’s Affirmative Action Policy. The Affirmative Action Officer may also serve as the College’s Title IX Coordinator and/or the ADA/504 Coordinator. If the Affirmative Action Officer is the person against whom the complaint is filed, the President shall designate another College official to act as the Affirmative Action Officer for purposes of administering the Affirmative Action Policy. The Affirmative Action Officer is Anita Bowden, Dean for Employment & Equity and can be contacted at 508-854-4206.
COMPLAINT: A written complaint alleging a violation of the Affirmative Action Policy.
COMPLAINANT: The student(s) or employee(s), or applicant for admission or employment, filing the complaint.
CONSENT: “Consent” must be informed, voluntary, and mutual, and can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature, or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption that meets this standard, or being asleep or unconscious.
DAY: As used in this policy, shall mean a calendar day.
EQUAL OPPORTUNITY: A College’s effort to ensure that all personnel and academic decisions, programs and policies are formulated and conducted in a manner which will ensure equal access for all people and prevent discrimination. As part of this effort, a College will ensure that employment and academic decisions, programs and policies will be based solely on the individual eligibility, merit or fitness of applicants, employees and students without regard to race, color, creed, religion, national origin, age, disability, sex, marital status, military service, gender identity, genetic information, sexual orientation or political or union affiliation.
INSTRUCTIONAL PERIOD: The academic semester, summer session or intersession when a Complainant knows or should have known of an act or inaction in violation of this Policy. The Instructional Period shall end on the last day of final exams.
PREPONDERANCE OF EVIDENCE: The evidentiary standard used in resolving a complaint filed under this Policy’s Complaint Procedure. The standard is met if the proposition is more likely to be true than not true (i.e.; more probable than not). Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.
PERSONAL ADVISOR: As referred to under the Complaint Procedure of this Policy, a personal advisor for a unit member shall be a union representative or College employee, for a non-unit employee it shall be a College employee, and for a student it shall be another student, a College administrator or faculty member. In cases involving Title IX Offenses, the personal advisor may be an attorney.
PROHIBITED CONDUCT: The following conduct is prohibited under this policy:
- Discrimination: An intentional or unintentional act which adversely affects employment and/or educational opportunities because of a person’s membership in a protected class or association with a member(s) of a protected class. Discrimination may be classified as either disparate impact (practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity) or disparate treatment (treatment of an individual that is less favorable than treatment of others based on discriminatory reasons). A single act of discrimination or discriminatory harassment may be based on more than one protected class status. For example, discrimination based on anti-Semitism may relate to religion, national origin, or both; discrimination against a pregnant woman may relate to sex, marital status, or both; or discrimination against a transgender individual may relate to gender identity, sex or sexual orientation.
Examples of behavior that may constitute discrimination, include, but are not limited to:
- Differences in salaries or other benefits that are paid to one or more men or women if the differences are not based on a bona fide occupational qualification.
- Differences in terms, conditions and privileges of employment (including, but not limited to hiring, promotion, reassignment, termination, salary, salary increases, discipline, granting of tenure, selection for awards, etc.) on a prohibited basis.
- Unlawful disparity of treatment in educational programs and related support services on the basis of membership in a legally protected class.
- Developing position descriptions or qualifications, which, without lawful justification, are so specific as to have a disparate exclusionary impact on a group of individuals because of their membership in a protected class.
- Singling out, treating or causing to treat persons of one protected class differently from others because of assumptions about or stereotypes of the intellectual ability, interest, or aptitudes of persons of those aforementioned groups.
- Limiting access to housing, or participation in athletic, social, cultural or other activities to students because of membership in a protected class not based on a bona fide requirement or distinction.
- Failing or refusing to hire or promote a person because of their age.
- Classifying a position or positions as unsuitable for persons of certain religions.
- Forcing employees or students to participate or not participate in a religious activity as a condition of their employment or education.
- Excluding members of a certain race or national origin from a category of positions or from a department or division.
- Restricting the number of Vietnam era veterans or qualified persons with disabilities in a category of positions or in a department or division.
- Using information on marital or parental status for employment decisions where the use of such information has a disparate impact on persons of one gender or sexual orientation.
- Advising students of similar interests and backgrounds differently because of their gender or gender identity.
- Diverting a discussion of a student’s or employee’s work toward a discussion of his or her physical attributes or appearances.
- Forcing female students to sit in the back of the class on the stereotyped assumption that each of them has a lower aptitude for learning that particular subject than male students.
- Placing unreasonable expectations upon students of particular races or national origins on the basis of stereotyped assumptions that members of those protected classes have a better aptitude for certain academic subjects than students not of those races or national origins.
- Discriminatory Harassment: Discriminatory harassment. A form of unlawful discrimination including verbal and/or physical conduct based on legally protected characteristics and/or membership in a protected class that:
- has the purpose or effect of creating an objectively intimidating, hostile or offensive work or educational environment;
- has the purpose or effect of unreasonably interfering with an individual’s work or learning performance; or
- otherwise unreasonably adversely affects an individual’s employment or educational opportunities.
For purposes of this Policy, conduct constitutes hostile environment harassment when it:
- is targeted against an individual(s) on the basis of his or her membership in a protected class;
- is not welcomed by the individual(s); and
- is sufficiently severe or pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, hostile or offensive.
The determination of whether an environment is “hostile” is based on the totality of the circumstances. These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating. Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to hostile environment harassment under this Policy.
Examples of behavior that may constitute discriminatory harassment include, but are not limited to:
- Physically harassing another individual (or group of individuals) because of that person’s or persons’ membership in a protected class by assaulting, touching, patting, pinching, grabbing, staring, leering at them, making lewd gestures, invading their personal space, blocking their normal movement, or other physical interference.
- Encouraging others to physically or verbally abuse an individual (or group of individuals) because of that person or persons’ membership in a protected class.
- Threatening to harm an individual (or group of individuals) because of that person or persons’ membership in a protected class.
- Directing epithets or slurs at an individual (or group of individuals) because of that person or persons’ membership in a protected class.
- Displaying hostile, derogatory and/or intimidating symbols/objects to an individual (or group of individuals) because of that person or persons’ membership in a protected class.
- Gender-Based Harassment: Unwelcome conduct of a nonsexual nature based on a student’s actual or perceived sex, including conduct based on gender identity, gender expression, and nonconformity with gender stereotypes, where: (source: NotAlone.gov)
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or education; and/or
- submission to, or rejection of, such conduct by an individual is used as a basis for academic or employment decisions affecting that individual; and/or
- such conduct has the purpose or effect of substantially interfering with an individual’s academic or professional performance or creating an intimidating, hostile, or offensive employment, educational, or living environment based on gender.
- Retaliation: Taking adverse employment or educational action against a person who files claims, complaints or charges under these procedures, or under applicable local, state or federal statute, who is suspected of having filed such claims, complaints or charges, who has assisted or participated in an investigation or resolution of such claims, complaints or charges, or who has protested practices alleged to be violative of the non-discrimination policy of the College, the BHE, or local, state or federal regulation or statute. Retaliation, even in the absence of provable discrimination in the original complaint or charge, constitutes as serious a violation of this Policy as proved discrimination under the original claim, complaint or charge.
Examples of behavior that may constitute retaliation, include, but are not limited to:
- Terminating an employee for expressing an intention to file or for filing a charge of discrimination.
- Refusing to hire an employee due to the employee’s pursuit of a discrimination charge against a former employer.
- Denying a promotion to an employee for complaining to anyone about alleged discrimination or harassment.
- Refusing tenure to a faculty member for filing a complaint of discrimination or harassment pursuant to the Discrimination Complaint Procedures.
- Issuing an unjustified negative evaluation to an employee for testifying in a legal proceeding concerning a complaint of discrimination, harassment or retaliation.
- Assigning a student an unearned, poor grade for requesting a reasonable course accommodation based on religion.
- Assigning a student an unearned, failing grade for cooperating with an internal investigation of alleged discriminatory practices or a complaint of discrimination or harassment.
- Refusing to admit a student for requesting a reasonable accommodation based on disability in the admission process.
- Refusing to hire a job applicant for requesting a reasonable accommodation based on disability in the application process.
Members of the academic community should not assume that any of the forms of speech described above are protected by the principles of academic freedom or the First Amendment to the United States Constitution.
- Sexual Harassment:Sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature when:
- submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment or academic decisions; or
- such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's academic or work performance by creating an intimidating, hostile, humiliating or sexually offensive learning or working environment.
Under these definitions, direct or implied requests by a supervisor or instructor for sexual favors in exchange for actual or promised job or academic benefits constitute sexual harassment. The legal definition of sexual harassment is broad and in addition to the above examples, other sexually oriented conduct, whether it is intended or not, that is unwelcome and has the effect of creating a work or educational environment that is hostile, offensive, intimidating, or humiliating to another may also constitute sexual harassment.
While it is not possible to list all those additional circumstances that may constitute sexual harassment, the following are some examples of conduct which if unwelcome, may constitute sexual harassment depending upon the totality of the circumstances, including the severity of the conduct and/or its pervasiveness:
- Unwelcome sexual advances - whether they involve physical touching or not.
- Repeated, unsolicited propositions for dates and/or sexual intercourse.
- Sexual epithets, jokes, written or oral references to sexual conduct, gossip regarding one's sex life; comment on an individual's body, comment about an individual's sexual activity, deficiencies, or prowess.
- Displaying sexually suggestive objects, pictures, cartoons.
- Unwelcome leering, whistling, brushing against the body, sexual gestures, suggestive or insulting comments.
- Verbal harassment or abuse on the basis of sex.
- Inquiries into another person’s sexual activities, practices or experiences.
- Discussion of one's own sexual activities, practices or experiences.
- Sexual Violence: Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the person’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the person from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be perpetrated by employees, students, or third parties. All such acts of sexual violence are forms of sex discrimination and are prohibited by Title IX
Sexual Violence under this Policy includes, but is not limited to:
- Rape - Defined by the Federal Bureau of Investigation as follows: 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.
- Sexual Assault - Actual or attempted sexual contact with another person without that person’s consent. Sexual assault includes, but is not limited to:
- 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/her age or because of his/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; and
- Statutory Rape - Sexual intercourse with a person who is under the statutory age of consent.
- Sexual Exploitation - Occurs when a person takes sexual advantage of another person for the benefit of anyone other than that person without that person’s consent. Examples of behavior that could rise to the level of sexual exploitation include:
- Prostituting another person;
- Recording images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness without that person’s consent;
- Distributing images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to such disclosure and objects to such disclosure; and
- Viewing another person’s sexual activity, intimate body parts, or nakedness in a place where that person would have a reasonable expectation of privacy, without that person’s consent, and for the purpose of arousing or gratifying sexual desire.
- Aiding in the Commission of Sexual Violence - The aiding or assisting in the commission of an act(s) of sexual violence is prohibited.
- Dating Violence - 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; and (iii) the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.
- Domestic Violence - A felony or misdemeanor crime of violence including, but not limited to, attempting to cause or causing physical harm; placing another in fear of imminent serious physical harm; or causing another to engage involuntarily in sexual relations by force, threat or duress, which is committed by (a) a current or former spouse or intimate partner of the victim; (b) a person with whom the victim shares a child in common; (c) a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; (d) a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or (e) 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 of violence occurred.
- Stalking - Engaging in a course of conduct directed at a specific person that would cause a reasonable person to: fear for the person’s safety or the safety of others; 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. For the purposes of this definition, “substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
PROTECTED CLASS(S)/CLASSIFICATION(S): Characteristics or groups of persons protected from discrimination by law and under this Policy, including:
- Age - Persons 40 years of age or older.
- Color - Variations in skin tone among persons of the same race.
- Disability - A person with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Examples include, but are not limited to, the following: Acquired Immune Deficiency Syndrome (AIDS), Alcoholism; Asthma; Blindness or other visual impairments; Cancer; Cerebral palsy; Depression; Diabetes, Epilepsy; Hearing or speech impairments; Heart Disease; Migraine Headaches; Multiple sclerosis; Muscular dystrophy; Orthopedic impairments; Paralysis; Thyroid gland disorders; Tuberculosis; loss of body parts.
- Ethnicity - See National Origin.
- Gender - A person’s sex, either male or female.
- Gender Identity - Gender identity is a term that covers a multitude of sexual identities including, but not limited to, transgender individuals, who are persons whose gender identity or gender presentation falls outside of stereotypical gender norms.
- Genetic Information - Any written, recorded individually identifiable result of a genetic test or explanation of such a result or family history pertaining to the presence, absence, variation, alteration, or modification of a human gene or genes.
- National Origin - A “national origin group” or “ethnic group” is a group sharing a common language, culture, ancestry, and/or other similar social characteristics.
- Persons of Color - Members of the following racial classifications: Black, American Indian/Native Alaskan, Asian/Pacific Islander, and Hispanic/Latino.
- Race - Discrimination laws do not contain a definition of “race,” but are interpreted to prohibit discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features, and on the basis of stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. All individuals, including persons of more than one race and the following racial classifications, are protected from discrimination:
- Black: All persons having origins in any of the Black racial groups of Africa.
- White (not of Hispanic origin): Persons having origins in any of the original peoples of Europe, North Africa, or the Middle East.
- Hispanic/Latino: All persons of Mexican, Puerto Rican, Cuban, Central, Latin or South American or other Spanish culture or origin, regardless of race.
- Cape Verdean: All persons having origins in the Cape Verde Islands.
- Asian or Pacific Islander: All persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands, including, for example, the areas of China, India, Japan, Korea, the Philippine Islands and Samoa.
- American Indian or Alaskan Native: All persons having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition.
- Religion - “Religion” and “creed” have the same or equivalent meaning: all religious and spiritual observances, practices, and sincerely held beliefs.
- Sexual Orientation - Actual or perceived heterosexuality, homosexuality or bisexuality, either by orientation or by practice.
- Veteran - Any person who is a member of, applies to perform, or has an obligation to perform, service in a uniformed military service of the United States, including the National Guard.
If at any time subsequent to the implementation of this Policy additional protected classifications are established under applicable law, individuals in those classifications shall be protected against discrimination under this Policy.
RESPONDENT OR RESPONDING PARTY: The person against whom a complaint is directed.
RESPONSIBLE EMPLOYEES: Allegations involving Title IX offenses, including sex discrimination, sexual harassment, sexual violence, stalking, domestic and dating violence, shall be reported by all “Responsible Employees” to the Title IX coordinator or official designee as soon as the employee becomes aware of it. A Responsible Employee includes any College employee: who has the authority to take action to redress Title IX offenses; who has been given the duty of reporting Title IX offenses to the Title IX Coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty. Responsible Employees shall include, but are not be limited to, College trustees, administrators, department chairs, program coordinators, campus police, club/activity advisors, coaches, managers or supervisors.
TIME: The number of days indicated at each level shall be considered as a maximum. All reasonable efforts shall be made to expedite the process, but the President or his/her designee may extend the time limits in extenuating circumstances with notice to both parties in writing, or by mutual written agreement between the Complainant and the Responding Party.
TITLE IX COORDINATOR: A College employee assigned the responsibility for maintaining the College’s compliance with Title IX. The Title IX Coordinator is responsible for administering this Policy and its Complaint Procedure concerning all Title IX Offenses. The Title IX Coordinator may also serve as the College’s Affirmative Action Officer. If these positions are held by different individuals, the AAO and the Title IX Coordinator may collaborate on the enforcement of any aspect of this Policy. The Title IX Coordinator should not have other job responsibilities that may create a conflict of interest. For example, serving as the Title IX Coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest. There may also be a Deputy Title IX Coordinator designated to assist the Title IX Coordinator in the performance of his/her duties. The College’s Title IX Coordinator is Liz Woods, Dean for Compliance, and can be contacted at 508-854-2791.
TITLE IX OFFENSES: Title IX Offenses include, but are not limited to: sex discrimination, sexual and gender harassment and sexual violence. These offenses shall be addressed by the Title IX Coordinator pursuant to this Policy’s Complaint Procedure.
VICTIM: A person who reports being subject to an alleged act of sexual violence.