Gender Equity, Sexual Misconduct and Relationship Violence Policy and Procedures: Examples

Gender Discrimination Examples*

Scenario 1

Maria is a work-study student at a local university. Her employment responsibilities could be performed at any of three campuses. Her supervisor has assigned her to work primarily at the main campus. She has expressed to her supervisor that she wants to work at another campus since that is where she has class. She files a complaint with the university's Title IX Coordinator alleging that she is forced to work at main campus because she is female and that her male co-workers all received their first choice of campuses at which to work. She states that she has requested repeatedly to be placed at her campus of choice over the past three months and that her supervisor has honored other work-study student's requests to transfer but not hers. Maria's supervisor is male and there are six male work-study students and two female work-study students who work in her department.

This may be a case of gender discrimination, but more investigation is warranted. During a Title IX investigation, investigators would likely look at any evidence that Marie would provide, such as communications with her supervisor, to see whether there is explicit or implicit gender discrimination. Investigators would explore with Maria why she feels that this is gender-based discrimination and how she has been impacted by the situation. The supervisor would need to be interviewed as well. A determination as to whether gender discrimination occurred would be made after a thorough and robust investigation into the matter.

Scenario 2

Monica is in her third year of her graduate studies. Monica is 6 months pregnant. In order to graduate, Monica must complete a 7 day meditation retreat which is scheduled for the last week of class. The male faculty member who teaches the class in which the retreat is required informs Monica that she cannot participate in the retreat as he is concerned that her condition could create a safety risk. Monica rejects this argument and tells the faculty member that she is in good health, has reviewed the safety risks involved with the retreat and believes that she can participate fully with the rest of her cohort. The faculty member, however, refuses to allow her to participate. Monica informs her academic advisor of what has occurred and that she feels she is being discriminated against.

As a "Responsible Employee" under the Gender Equity, Sexual Misconduct and Relationship Violence Policy and Procedure, Monica's academic advisor is required to provide information regarding Monica's concern to the Title IX Coordinator. The Title IX Coordinator oversees an investigation into this matter which finds that the faculty member discriminated against Monica on the basis of gender. Under Title IX and the university's policy, gender discrimination includes acts of discrimination on the basis of parental, family or marital status that excludes pregnant or parenting students from participation in educational activities. Here Monica was denied the right to participate in a required retreat due to her pregnancy.

Sexual Harassment Examples*

Scenario 1

Jen is a graduate assistant who works in the admissions department. Her supervisor, Margaret, is female. Jen has worked in admissions for 8 months. Jen's role puts her in a cubicle where her back faces the walkway. As Jen's job includes mostly data entry, she often listens to music on her iPhone while working using ear buds. Margaret often comes up behind Jen in her cubicle and rubs her shoulder to get Jen's attention. Jen finally expresses to Margaret that she is uncomfortable being touched in that way. Recently, Margaret has started having disciplinary conversations with Jen regarding how she dresses for work. Margaret has referred to Jen's choice in apparel as "slutty" and has told her that she is not "hot enough" to dress that way. Jen files a complaint against Margaret for sexual harassment.

This is likely a case of sexual harassment and an investigation is warranted. While Margaret's rubbing of Jen's shoulder is unwanted conduct, it is not necessarily of a sexual nature since the contact is needed to get Jen's attention. However, Margaret's comments about Jen's apparel seem sexualized and there is a power differential between Margaret and Jen. Margaret's conduct may be a response to Jen's request that Margaret not touch her shoulder. Note that the sexual orientation and gender of the individuals involved is irrelevant to whether or not sexual harassment has occurred.

Scenario 2

Jean is a student in a writing seminar. Jean prefers to use third-gender pronouns (they, them, theirs) and has made this clear to the class and the faculty from the first day of the semester. While the class has honored Jean's request, the faculty member has consistently referred to Jean as "him" or "this gentleman" in class discussions. One day, when Jean corrected the faculty member, the faculty member responded, "transgendered stuff is just a fad, and isn't going to last!" Jean gets up and leaves class, refusing to return unless the faculty member is fired. Jean files a complaint with the Title IX Coordinator stating that they have been sexually harassed based on hostile environment.

An investigation into this matter is warranted to determine whether the conduct violates the university's Gender Equity, Sexual Misconduct or Relationship Violence Policy and Procedure. While Jean's complaint to the Title IX Coordinator alleges sexual harassment, this may be a case of sexual harassment or gender discrimination. The faculty member could have created a hostile environment in the classroom by persistently and pervasively refusing to use the student's preferred gender pronouns. While the final statement about transgender identity being a fad is not, by itself, sufficient to create a hostile environment, it contributes to a pattern of conduct that may have created a hostile environment for the student. Additionally, messing up a student's pronoun preference is not in and of itself sexual harassment or gender discrimination; however, persistently and pervasively refusing to use the student's pronoun may rise to that level. Note that persons wishing to file a complaint under this policy need not try to identify what prohibited conduct is occurring (i.e. gender discrimination v. sexual harassment) as the University, through the Title IX Coordinator and the thorough and robust investigative process, shall make such determinations.

Consent Example*

Ann and Nate were assigned as partners on a project for an undergraduate course. The project was due at 8:00 a.m. on Tuesday. Because of their busy schedules, Ann and Nate could not meet to work on the project until Monday evening. The pair agreed to meet at Nate's apartment, which was a 30 minute drive from Ann's apartment in the residence hall. Anne does not drive but her roommate offered to give Ann a ride provided that Nate could bring her home. Nate agreed. Ann and Nate completed their project around 1:00 a.m. Ann packed up her stuff and asked Nate if he were ready to drive her home. Nate told Ann, "I've noticed this chemistry between us all night and I think you should stay with me tonight." Ann declined the invitation but Nate persisted and ultimately told Anne that he would not take her home unless she had sex with him. Ann refused, but as time ticked by, she got increasingly scared about not having a way home. Ann had sex with Nate. The following morning she filed a Title IX complaint.

Consent is informed, freely and actively given, mutually understandable words or actions which indicate willingness to participate in mutually agreed upon sexual activity. Consent is not effectively given if it results from the use of physical force, threats, intimidation or coercion. Coercion exists when the sexual initiator engages in sexually pressuring and/or oppressive behavior that is intended to coerce or actually causes the object of the behavior to engage in unwanted sexual behavior. Here, the sexual activity engaged in was unwanted by Ann and she did not freely and actively give consent due to Nate's coercive behavior.

Sexual Assault Example*

Mark and Robert live in the residence hall in adjacent apartments. They decide to go to a party one night where Mark had six alcoholic beverages in about an hour and a half. Robert practically carried Mark back to his room and Mark was slurring his words. When they arrived at the residence hall, Mark realized that he left his keys at the party. Robert invited Mark back to his apartment, and Mark agreed. The two went to sleep in the same bed. When Mark woke up, his pants were on the floor and Robert's hand was in Mark's underwear. Mark quietly got up, careful not to wake Robert, and left the room to call his Resident Advisor (RA), saying that he thinks he was raped. Mark does not remember what happened after they arrived at the residence hall after the party.

This may be a case of sexual assault. As a "Responsible Employee", the RA must report the information reported by Mark to the Title IX Coordinator. Mark was evidently too intoxicated to consent to sexual activity based on his inability to stand and his slurred speech. Robert could not have obtained consent due to this set of circumstances, regardless of whether Mark said he wanted to engage in sexual contact. A Title IX investigation is needed to determine the extent of sexual contact, whether Robert attempted to obtain consent, whether there were any witnesses to the conduct (roommates, people in the hallway) and how the conduct has impacted Mark's experience in his education/housing. Note that under the university's Gender Equity, Sexual Misconduct and Relationship Violence Policy and Procedure, persons coming forward to report an incident of prohibited behavior will not be subject to additional disciplinary action due to the use of drugs or alcohol at the time of alleged incident. Thus Mark, as an underage student living in the residence hall, will not be subject to disciplinary action due to his use of alcohol.

Sexual Exploitation Example*

University students Jack and Diane have been exclusively dating for the last two years. During the course of their relationship the parties would mutually agree to videotape their sexual encounters. The videotapes, at all times, remained in Jack's possession. After two years of dating, Diane broke off the relationship taking Jack by surprise. Angered, Jack posted a video online showing Diane naked and performing a sexual act on a man whose face was blurred. The video was seen by Diane's classmates causing her extreme distress. Diane confided into a trusted faculty member who, in turn, reported the information learned to the Title IX Coordinator.

After a thorough and robust investigation, Jack has been found to violate the university's policy against sexual exploitation. While Diane had initially consented to the making of the videotape with Jack, she did not consent to Jack's broad distribution of the video. As Jack was unauthorized to share or distribute a video containing nudity or sexual activity involving Diane, Jack committed sexual exploitation under the university's policy. Note that the university's policy applies to prohibited conduct involving students even if that conduct occurred off-campus or via electronic means.

Domestic Violence Example*

Candace and Paul are both university students. They are married and have a small child. Yesterday, Paul came to class late. He seemed distracted and unsettled. After class, the faculty member asked Paul how he was doing, noting that Paul seemed upset. Paul disclosed that he had an intense fight with Candace just before coming to class. They have been fighting a lot since the birth of their son. This time was different because as Paul started to leave their residence, Candace grabbed a baseball bat and struck Paul twice, hard in the back. He showed the faculty member where he was hit and bruises were beginning to form. The faculty member informed the Title IX Coordinator.

Paul's complaint would be investigated to determine whether domestic violence has occurred and it is likely in this scenario that the investigation would lead to the conclusion that domestic violence has occurred. Paul and Candace are married, live together and have a child in common and thus meet the relationship standard under the domestic violence definition. Physical assault is a crime of violence categorized as either a felony or misdemeanor (depending on the circumstances) under Colorado law.

Stalking Example*

Michael and Rebecca are two students who had been involved in a romantic relationship for two years. The relationship ended in May, and since then, Michael has been leaving notes on Rebecca's car stating how she should "take him back" and how they were "destined to be together forever". Michael and Rebecca are in the same program of study and Rebecca told Michael after a few weeks of leaving notes that she wished he would not leave notes on her car. Michael then started leaving notes in Rebecca's mailbox. Rebecca files a Title IX complaint alleging that Michael is stalking her.

More information is needed to determine whether this conduct meets the definition of stalking. In order for the behavior to be stalking it would need to cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress. An investigation would need to explore how the conduct impacted Rebecca.

Retaliation Example*

Jaya files a Title IX complaint against her immediate supervisor, Miguel. Miguel is very upset about the grievance, and even though the Title IX Coordinator instructed him to maintain confidentiality, he talks to a trusted colleague about the situation. The trusted colleague calls one of Jaya's co-workers, Samantha, to tell her what happened. Samantha starts sending multiple emails to Jaya, telling her to "drop this ridiculous complaint".

This may be a case of retaliation, but by whom? Multiple parties took part in setting up a retaliatory set of circumstances and would all be notified by the Title IX Coordinator that they need to appear for questioning. Samantha is ultimately the person who committed the retaliatory act even though Miguel initiated the course of events. Regardless of whether the content of the emails was aggressive or negative, the simple fact that Samantha sent emails may make Jaya feel unsafe in the investigation, thus aggrieving her rights under the Gender Equity, Sexual Misconduct and Relationship Violence Policy and Procedures. Note that retaliation may be found when parties not involved in the initial complaint (third parties) act adversely against a complainant or witness by any means.

*Examples listed are informational only and do not represent real cases adjudicated. All cases will differ in regard to pertinent facts and as such outcomes of real cases may differ from outcomes established in these examples.