VSC Policy 311
Non-discrimination and Prevention of Harassment and Related Unprofessional Conduct
I. NOTICE OF NONDISCRIMINATION
The Vermont State Colleges and its member Colleges prohibit discrimination and harassment on the basis of a person’s race, color, ancestry, ethnicity, national origin, place of birth, sex, sexual orientation, gender identity, creed, religion, disability, age, veteran status, marital status, genetic information, positive HIV-related blood test results, or any other status protected by state or federal law, pursuant to Title IX of the Education Amendments, the Equal Pay Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Section 504 of the Rehabilitation Act, the Vietnam Era Veterans Readjustment Assistance Act, the Uniformed Services Employment and Reemployment Rights Act, Title VI and Title VII of the Civil Rights Act, the Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, Vermont’s State Employees Labor Relations Act, Vermont’s Public Accommodations Act, Vermont’s statutory provisions on harassment applicable to postsecondary schools, Vermont’s statutory provisions relating to HIV-discrimination and testing, Vermont’s Fair Employment Practices Act, and any other applicable state or federal non-discrimination and harassment prevention law, regulation, or policy.
As a recipient of federal funds, the Vermont State Colleges and each member College of the Vermont State Colleges is required to comply with Title IX of the Education Amendments of 1972 (“Title IX”). In accordance with Title IX, as well as other applicable state and federal law, the VSC and its member Colleges prohibit discrimination on the basis of sex in its education programs and activities, admission, and employment. Sexual harassment, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. Title IX also prohibits gender-based harassment, which may include acts of verbal, non-verbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve acts of a sexual nature.
Inquiries concerning the application of Title IX may be referred to the VSC’s Title IX Coordinators or to the United States Department of Education for the Office of Civil Rights. Inquiries concerning discrimination on the basis of other protected categories may be referred to the VSC’s Policy 311 Coordinators, the Vermont Human Rights Commission, the Vermont Attorney General’s Office – Civil Rights Unit, or to the Equal Employment Opportunity Commission. Contact information for the Coordinators is located in Appendix A and contact information for these state and federal agencies is located in Appendix C to the Chancellor’s Procedures for Implementation of Policy 311: Non-Discrimination and Prevention of Harassment and Related Unprofessional Conduct.
II. POLICY STATEMENT
The Vermont State Colleges and its member Colleges (collectively the “VSC”) are committed to maintaining an educational and working environment free from discrimination, harassment and related unprofessional conduct. The VSC prohibits discrimination on the basis of a person’s race, color, ancestry, ethnicity, national origin, place of birth, sex, sexual orientation, gender identity, creed, religion, disability, age, veteran status, marital status, genetic information, positive HIV-related blood
test results, or any other status protected by state or federal law (collectively “protected categories”). Sexual harassment, racial harassment, and harassment based upon a person’s status in a protected category are forms of discrimination and will not be tolerated. In addition, inappropriate sexual relationships between VSC employees and students, including those that may not otherwise rise to the level of sexual harassment, are prohibited.
III. POLICY COVERAGE
In accordance with Title IX, as well as applicable state and federal law, neither the VSC nor any member College shall discriminate on the basis of the above-listed protected categories in the application processes for admissions or employment, in academic and residential programs, in employment policies and practices, in scholarship and loan programs, in athletic programs, or in any other academic, extra-curricular or VSC-sponsored programs, activities, or facilities. The prohibitions set forth in this Policy also apply to all members of the VSC community, including students, employees, and third parties who come on to campus (such as parents, visitors, independent contractors, and vendors). This Policy covers conduct that occurs off-campus, or through the use of online, electronic or digital technologies, and that has a reasonable nexus to any VSC education program or activity, for example by creating a hostile environment on campus or representing a threat to the safety of members of the VSC community or to the continuance of normal VSC operations.
IV. POLICY INTENT AND OVERVIEW
This Policy is intended to be read consistently with, and unless otherwise expressly stated, no broader than, Vermont and federal non-discrimination and harassment prevention laws, regulations and policies. Laws prohibiting discrimination and harassment are many and varied at both the state and federal level and apply with some differing standards and consequences to employees, students and visitors. Because harassment is a form of discrimination, it is the intent of the VSC to address all prohibitions related to non-discrimination and prevention of harassment under one comprehensive policy for ease of access and use. Acts of sexual misconduct (including, but not limited to, sexual assault), domestic violence, dating violence, and stalking are addressed separately in VSC Policy 311-A, Sexual Misconduct, Domestic Violence, Dating Violence, and Stalking. Sexually harassing behavior that violates both this Policy and Policy 311-A may be addressed under either policy.
For the purposes of this Policy, unless the context clearly requires otherwise, the following definitions apply. The specific definitions contained in an employee benefit plan will control with respect to any claim arising out of that plan.
“Discrimination” means the unlawful refusal of, withholding from, exclusion from participation in, or denial of any accommodations, advantages, benefits, facilities, privileges, or services of the VSC or its member Colleges on the basis of a person’s race, color, ancestry, ethnicity, national origin, place of birth, sex, sexual orientation, gender identity, creed, religion, disability, age, veteran status, marital status, genetic information, positive HIV-related blood test results, or any other status protected by state or federal law.
Under Vermont law, “harassment” means an incident or incidents of verbal, written, visual, or physical conduct or communication, including any incident conducted by electronic means, based on or motivated by a person's or person’s family member’s, actual or perceived race, color, ancestry,
ethnicity, national origin, place of birth, sex, sexual orientation, gender identity, creed, religion, disability, age, veteran status, marital status, genetic information, HIV-positive blood test results, or any other status protected by state or federal law that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or an employee’s performance, or creating an objectively intimidating, hostile, or offensive environment.
Harassment includes the use of epithets, stereotypes, slurs, comments, insults, derogatory remarks, gestures, threats, graffiti, display, or circulation of written or visual material, and taunts on manner of speech and negative references to customs related to any of the protected categories.
C. Sexual Harassment
“Sexual harassment” is unwelcome conduct of a sexual nature and it includes quid pro quo sexual harassment and hostile environment sexual harassment. Sexual harassment includes physical conduct of a sexual nature, such as sexual assault or other acts of sexual violence. Sexual misconduct, including sexual assault, is addressed separately in VSC Policy 311-A, Sexual Misconduct, Domestic Violence, Dating Violence, and Stalking. (Conduct that violates this Policy and Policy 311-A may be addressed under either policy.)
- "Quid pro quo sexual harassment" generally involves a person in a position of power (such as a supervisor over an employee or a faculty member over a student) pressuring a subordinate employee or a student for sexual favors in exchange for an advancement in the workplace or academically, or under the threat of an adverse employment or academic action being taken. Quid pro quo sexual harassment includes situations where, for example, a student or employee is rewarded with a higher grade, a stronger evaluation, or an opportunity for advancement for granting a request for sexual favors or is punished with a lower grade, a less favorable evaluation, or denial of an educational or workplace opportunity for refusing to grant a request for sexual favors. In either case, a person uses the position of power as leverage to pressure another person into complying with a request for sexual favors.
- "Hostile environment sexual harassment" is sexual harassment that creates a hostile employment or educational environment and it is a form of sex discrimination. Examples of sexually harassing behavior that could create a hostile environment under appropriate circumstances include the following where the particular behavior is unwelcome to the person to whom it is directed:
- Sexual advances, including requests for sexual favors and repeated requests for dates;
- Intentional unwanted or offensive touching, including fondling;
- Indecent exposure;
- Sexually-derogatory comments, including sexually explicit comments, sexually suggestive innuendoes, sexually offensive jokes, and sexual taunts;
- Obscene or offensive gestures;
- Images and depictions of a sexual nature, including sexually derogatory or sexually suggestive pin-ups, posters, cartoons, and calendars; and
- Writings of a sexually derogatory or suggestive nature.
This list is not exhaustive and other unwelcome behavior of a sexual nature, if it is severe and pervasive enough, may constitute sexual harassment. See Section E, Hostile Environment, below for further elaboration.
Conduct is "unwelcome" if the person subjected to the alleged sexually harassing behavior did not request or invite it and regards the conduct as undesirable or offensive. The fact that a person willingly participated in conduct on one occasion does not prevent that person from indicating that the same or similar conduct has become unwelcome on a subsequent occasion. If a person actively participates in the conduct, such as sexual banter, without objection, the conduct would not be considered unwelcome.
Sexual harassment may be committed by a stranger, an acquaintance, a colleague, a co-worker, a student, or someone with whom the subject of the harassment has a social, romantic or intimate relationship. Sexual harassment may be committed by or against any individual, regardless of gender, sexual orientation, or gender identity.
1. Sexual Harassment of a Student
Under Vermont law, “sexual harassment of a student” means:
(a) An incident or incidents of verbal, written, visual, or physical conduct or communication, including any incident conducted by electronic means, based on or motivated by the student’s sex, that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student's educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment; or
(b) Unwelcome sexual advances, requests for sexual favors and other verbal, written, visual, or physical conduct of a sexual nature when one or both of the following occur:
- Submission to that conduct is made either explicitly or implicitly a term or condition of a student's education.
- Submission to or rejection of such conduct by a student is used as a component of the basis for decisions affecting that student.
2. Sexual Harassment of an Employee
Under Vermont law, "sexual harassment of an employee" means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) Submission to that conduct is made either explicitly or implicitly a term or condition of employment; or
(b) Submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or
(c) The conduct has the purpose or effect of objectively and substantially interfering with an individual's work performance or creating an objectively intimidating, hostile or offensive work environment.
D. Related Unprofessional Conduct
“Related unprofessional conduct” on the part of a VSC employee means the initiation of or participation in an amorous or sexual relationship with a VSC student when the employee is, or may reasonably be perceived to be, in a position of power and authority over the student, even if the conduct does not otherwise constitute sexual harassment. Examples include, but are not limited to, situations where the VSC employee is an administrator, instructor, coach, advisor, work study supervisor or counselor for the student, or a member of a committee having responsibility for decisions that affect students.
E. Hostile Environment
A "hostile work or educational environment" is one in which the alleged conduct is sufficiently serious as to limit or deny the ability of the person subjected to the harassment to participate in or benefit from the employment or educational environment. The severity and pervasiveness of the alleged harassing conduct is evaluated using common sense and reasonable judgment to determine whether it created an intimidating, hostile or offensive environment. The determination is made from the perspective of a reasonable person, in the position of the person subjected to the alleged harassment, considering all of the relevant circumstances. Factors that may be considered include:
- The degree to which the conduct affected the student’s education or the employee’s employment;
- The type(s) of harassment (for example, whether it was verbal and/or physical);
- The frequency and duration of the harassing conduct;
- The identity of, and relationship between, the alleged harasser and the subject of the harassment;
- The number of individuals engaged in the harassing conduct (for example, a group of students targeting a single student); and
- The setting(s) and context(s) in which the harassing conduct occurred.
Generally, the more severe the conduct, the less need there is to show a repetitive series of incidents to establish a hostile environment, particularly if the harassment was physical. Harassing conduct may violate this Policy if, for multiple instances of conduct, it is so pervasive that when viewed from an objective standard of a similarly-situated reasonable person, it substantially and adversely affected the targeted student’s or employee's educational or employment opportunities or benefits. A single incident of harassing conduct may violate this Policy if the conduct is so severe that, when viewed from an objective standard of a similarly- situated reasonable person, it substantially and adversely affected the targeted student’s or employee’s equal access to educational or employment opportunities or benefits.
“Retaliation” against any person for reporting a violation of this Policy, for filing a complaint pursuant to this Policy, or for cooperating in an investigation under this Policy includes, but is not limited to: (1) pressuring a person to drop or not support a complaint; (2) encouraging a person to provide false or misleading information; (3) engaging in conduct that may reasonably be perceived to affect adversely that person’s educational, living or work environment; (4) threatening, intimidating or coercing the person; or (5) otherwise discriminating against any person for exercising their rights and responsibilities under this Policy.
VI. FREEDOM OF SPEECH
The VSC recognizes that the protection of free and open speech and the open exchange of ideas are essential to any academic or artistic community, and crucial for the activity of scholars and artists. The VSC also recognizes its obligation under policy and collective bargaining agreements to respect the academic freedom of faculty members. This Policy is meant neither to proscribe nor to inhibit discussions, in or out of the classroom, of complex, controversial, or sensitive matters, including race, color, ancestry, ethnicity, national origin, place of birth, sex, sexual orientation, gender identity, creed, religion, disability, age, veteran status, marital status, genetic information, or HIV-positive status, when in the judgment of a reasonable person such discussions arise appropriately and with respect for the dignity of others. The VSC is a community of learners and as such recognizes and affirms that free, honest intellectual inquiry, debate, and constructive dialogue are vital to the academic mission of the VSC and must be protected even when the views expressed are unpopular or controversial.
The VSC also recognizes, however, that verbal conduct can be used specifically to intimidate or coerce and to inhibit genuine discourse, free inquiry, and learning. Such abuses are unacceptable. If someone believes that another's speech or writing is offensive, wrong, or hurtful, he or she is encouraged to express that judgment in the exercise of his or her own freedom of speech or to seek redress when appropriate.
A. Discrimination and Harassment
All members of the VSC community are expressly prohibited from:
- Discriminating against a student or employee on the basis of a protected category;
- Harassing a student or employee on the basis of a protected category; or
- Sexually harassing a student or employee.
B. Related Unprofessional Conduct
Employees of the VSC are expressly prohibited from engaging in related unprofessional conduct with students.
C. HIV-related Blood Test
Under Vermont law, it is unlawful for the VSC or any member College to request or require any applicant, prospective student, or current student to have an HIV-related blood test or to discriminate against an applicant, prospective student, or current student on the basis of a person's having a positive test result from an HIV-related blood test.
Under Vermont law, it is unlawful for employers and labor organizations to discriminate against, indicate a preference or limitation, refuse properly to classify or refer, or to limit or segregate membership on the basis of a person's having a positive test result from an HIV-related blood test or to require an applicant, prospective employee, employee, prospective member, or member to have an HIV-related blood test as a condition of employment or membership, classification, placement, or referral.
Retaliation against any person for reporting a violation of this Policy, filing a complaint, or cooperating with an investigation into an alleged violation of this Policy is prohibited and will be considered a violation of this Policy. Retaliation under this Policy may be found whether or not the underlying complaint is ultimately found to have merit. A complaint of retaliation should be reported, and will be investigated and adjudicated, using the procedures implementing this Policy.
E. False Information
Providing false information in connection with a complaint under this Policy or intentionally misleading officials in the investigation or resolution of such a complaint is prohibited and may result in disciplinary action.
VIII. DUTY TO COOPERATE
All students and employees have a duty to cooperate in investigations undertaken pursuant to this Policy and are expected to provide complete, accurate, and truthful information. They may be asked to sign statements or other documents memorializing the information they provide, and may be asked to keep the substance of any interview confidential, to the extent permitted by law. Failure to cooperate fully with an investigation may subject the individual to the full range of disciplinary actions, up to and including expulsion or termination.
All actions taken to investigate and resolve complaints through this procedure shall be conducted with as much privacy, discretion and confidentiality as possible without compromising the thoroughness and fairness of the investigation. All persons involved are expected to treat the situation under investigation with respect. To conduct a thorough investigation, the investigator(s) may discuss the complaint with witnesses and those persons involved in or affected by the complaint, and those persons necessary to assist in the investigation or to implement appropriate disciplinary actions. Nothing herein shall be deemed to limit the procedural rights of unionized and other employees with regard to such investigations.
Violation of the prohibitions set forth in this Policy is grounds for discipline up to and including the dismissal/expulsion of students or the termination of employees. Generally, the range of sanctions for students includes verbal and written warnings, written reprimands, counseling, loss of privileges, probationary status, removal from College housing, suspension, dismissal/expulsion, revocation of degree, and/or withholding of transcript or other action determined to be appropriate under the circumstances. Generally, the range of sanctions for employees includes verbal warnings, written warnings, written reprimands, probation, suspension, termination of employment, non-renewal of a contract, or other action determined to be appropriate under the circumstances.
The VSC may also impose certain non-disciplinary remedial actions where appropriate, such as required counseling or training for the respondent and/or a group of students or employees, to stop the misconduct, prevent its recurrence, and remedy its effects. Additional non-disciplinary outcomes, such as extending and modifying no contact orders, room changes, class changes, work schedule changes, building restrictions, and extracurricular activity restrictions may also be imposed, regardless of the finding, to maintain an environment free from discrimination and harassment.
Conduct that violates this Policy may also be unlawful and expose a person engaging in such conduct to civil and/or criminal sanctions.
Misconduct that does not violate this Policy may violate other VSC policies, student handbooks, codes of conduct, or collective bargaining agreements and, if so, shall be handled as set forth in such other documents.
(Specific sanctions for violations of VSC Policy 311-A, Sexual Misconduct, Domestic Violence, Dating Violence, and Stalking are listed separately in that policy.)
The Chancellor shall establish and periodically update the procedures for handling complaints alleging violations of this Policy and for developing educational programs designed to prevent such conduct. Such procedures shall be consistent with Vermont and federal legal requirements and any collective bargaining agreements governing the rights and responsibilities of the VSC, its member Colleges and employees. The procedures shall ensure that the VSC and any member College, upon receiving notice of conduct that allegedly violates this Policy, promptly and impartially investigates such complaints and, where complaints are substantiated, takes prompt and appropriate remedial action reasonably calculated to stop the misconduct, prevent its recurrence, and remedy its effects, if necessary.
The procedures established by the Chancellor may be modified as necessary to comply with federal and state law and to ensure that complaints of discrimination and harassment are promptly and impartially investigated and adjudicated.
Students who have concerns about perceived discrimination, harassment, related unprofessional conduct, or retaliation are encouraged to report their concerns as soon as possible. Employees who learn of an incident of discrimination, harassment, related unprofessional conduct, or retaliation are required to report this information as soon as possible, as set forth in the accompanying procedures.
The VSC’s primary goals in responding to violations of this Policy are to promote the safety of the VSC community, to address discrimination and harassment, and to prevent discrimination and harassment from recurring. Individuals should not be deterred from reporting a violation of this Policy because alcohol, drugs, or violations of other VSC’s policies were involved in the incident. VSC officials may, in their discretion and on a case-by-case basis, decide not to pursue relatively minor drug, alcohol, or other policy violations related to alleged violations of this Policy or, if they do pursue such violations, to handle them separately from complaints brought under this Policy.
A. Standard of Proof
The standard of proof applicable to the investigation and adjudication of complaints under this Policy shall be “by a preponderance of the evidence,” meaning that it is more likely than not (i.e. there is more than a 50% likelihood) that the alleged actions or behavior in violation of the Policy occurred.
The Chancellor (for the Office of the Chancellor) and the President of each member College (for each College) shall appoint individuals to coordinate efforts to carry out and comply with: (1) Title IX of the Education Amendments of 1972 and the other federal and state laws prohibiting discrimination and harassment on the basis of a protected category; and (2) Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Contact information for the coordinators shall be attached to the Chancellor’s Procedures.
XI. POLICY DISTRIBUTION AND EDUCATION
The Colleges and the Office of the Chancellor shall distribute or make available annually copies of the Policy and related procedures for all students and employees. The Colleges and the Office of the Chancellor will make available appropriate educational materials and programs to facilitate understanding and implementation of this Policy for all students and employees.
Date adopted by the Board of Trustees: February 19, 2015.
This policy, including relevant legal authorities, and the Chancellor’s Procedures for Implementation of Policy 311 are available on the VSC Resolve Website.