HCAP

4.7.1 Title IX Sexual Harassment Response and Complaint Resolution Process

Under Title IX, Xavier must and will investigate allegations in a formal complaint of Sexual Harassment. A formal complaint is a document submitted by a Complainant (an individual alleged to be the victim of conduct that could constitute sexual harassment) or signed by the Title IX Coordinator alleging that Sexual Harassment has been committed by a Respondent (an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment) and requesting that Xavier investigate the allegation of sexual harassment. 

The Title IX Coordinator who signs a formal complaint is not deemed a Complainant as described in these policies.

Under these Title IX Sexual Harassment policies, the following information applies.

  • Initial Assessment of Reported Conduct (Section 4.7.1.1)
  • Title IX Investigation of Formal Complaint (Section 4.7.1.2)
  • Methods of Resolving a Charge of a Violation of the Title IX Sexual Harassment Policies (Section 4.7.1.3)
  • Title IX Sexual Harassment Hearings (Section 4.7.1.4)
  • Title IX Sexual Harassment Appeals (Section 4.7.1.5)
  • Supportive Measures (Section 4.7.1.6)
  • Retaliation Prohibited (Section 4.7.1.7)
  • Benchmark Sanctions for Title IX Sexual Harassment (Section 4.7.1.8) 

4.7.1.1 Initial Assessment of Reported Conduct

The Title IX Coordinator is responsible for assessing whether the conduct reported may rise to a potential violation of Xavier’s Title IX Sexual Harassment policies. If the Title IX Coordinator assesses that the reported conduct may violate these policies, the report will proceed for resolution under the Title IX Sexual Harassment policies of this section. If the Title IX Coordinator assesses that the conduct alleged in the formal complaint would: 1) not constitute Sexual Harassment as defined by Title IX even if proved; 2) did not occur in a Xavier education program or activity, or 3) did not occur against a person in the United States, then in accord with federal law, the Title IX and Interpersonal Violence Office (hereinafter Title IX Office) will dismiss the formal complaint with regard to that conduct for purposes of Sexual Harassment under Title IX. 

If the formal complaint is dismissed, the Title IX Coordinator will inform the Complainant of their right to proceed under Xavier’s Interpersonal Violence policies if deemed warranted. 

A Complainant may not choose to proceed under the Interpersonal Violence policies if the Title IX Coordinator has assessed the report should proceed under Title IX Sexual Harassment policies. 

If the Title IX Coordinator determines that the reported conduct may rise to a potential violation of Xavier’s Title IX Sexual Harassment policy and there is no appeal of that determination submitted (see Section 4.7.1.1.2 Initial Assessment of Appeal Process) or an appeal of that determination does not result in a reversal of the determination, then the report will be resolved under the following Sexual Harassment complaint resolution process required by Xavier’s Title IX Sexual Harassment policies. 

      4.7.1.1.2 Appeal of Initial Assessment Process

Under Title IX, the reporting and responding parties have the right to an appeal Xavier’s dismissal of a formal complaint on the following bases: 

  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time the dismissal was made, that could affect the outcome of the matter; and
  3. The Title IX Coordinator had a conflict of interest or bias for or against reporting parties or responding parties generally or the individual Complainant or Respondent that affected the outcome of the matter. 

Appeals of a dismissal of a formal complaint must be submitted within three business days of the parties being notified of the dismissal by the Title IX Coordinator, and shall be submitted to the Vice President for Administration (Vice President) or their designee (which for these purposes may mean a person designated by the Vice President if unavailable.) The Vice President will review the matter, including a review of the Title IX Coordinator’s written analysis, rationale for the dismissal decision, the Title IX Investigation Report to date, and any other information and evidence the Vice President deems necessary to comprehensively review the appeal. The Vice President may also request to meet with the Respondent, Complainant, Title IX Coordinator, and/or other individuals that may have relevant additional information.  The Vice President will endeavor to notify the parties and the Title IX Coordinator of the outcome of the appeal within three business days of receiving it. The decision of the Vice President is final. 

If the Title IX Coordinator’s determination to dismiss the formal complaint is upheld by the Vice President or if no appeal is submitted, the Title IX Coordinator will inform the Complainant of their right to proceed under the Interpersonal Violence Policies. 

If the Title IX Coordinator’s determination to dismiss the formal complaint is reversed by the Vice President, the formal complaint will proceed under these Title IX Sexual Harassment Policies. 

Xavier may also dismiss the formal complaint or any allegations therein, or suspend the investigation thereof, if at any time during the investigation or hearing: 

  • A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein;
  • The Respondent is no longer enrolled by Xavier; or
  • The Title IX Coordinator determines that specific circumstances prevent Xavier from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. 

Upon a dismissal required or permitted, Xavier will promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. 

4.7.1.2 Title IX Investigation of a Formal Complaint

If it is determined by the Title IX Office that a report of Sex Discrimination will be addressed under the Title IX Sexual Harassment policies, the following information applies. 

Xavier’s Title IX Office conducts all Title IX Sexual Harassment investigations.

To the extent consistent with Xavier’s Title IX Sexual Harassment policies and the best interests of all concerned (as determined by Xavier), Xavier will comply with law enforcement requests for cooperation. Such cooperation may require Xavier to temporarily delay the start of or suspend an ongoing Title IX Sexual Harassment investigation while the law enforcement agency is in the process of gathering evidence (not the ultimate outcome of the criminal investigation or the filing of any criminal charges). If Xavier has temporarily delayed or suspended its investigation, Xavier will resume its investigation promptly after it is notified by the law enforcement agency that it has completed the evidence gathering process. Law enforcement agencies typically take three to ten calendar days for their evidence gathering process, although the delay in Xavier's investigation may be shorter or longer in certain circumstances. In any case, Xavier may implement appropriate Supportive Measures (Section 4.7.1.8) during the law enforcement agency's investigation period to provide for the safety of the Complainant and the campus community and to avoid retaliation.

In Title IX Sexual Harassment matters, the reporting and responding parties may be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. A party’s advisor of choice may fully participate in the Title IX investigation. Information on advisor participation and role in Title IX Sexual Harassment Hearings is described in Section 4.7.1.4.

Prior to completion of the investigative report, Xavier’s Title IX Office will send to each party and the party’s advisor, if any, the initial draft Title IX Investigation Report to inspect and review. The parties will have 10 business days to submit a written response, which the Title IX Office will consider prior to completion of the investigative report.

The Title IX Office will then create a Title IX Investigative Report that fairly summarizes all relevant evidence and will provide that report to each party and the party’s advisor, if any, for their review and written response. Absent circumstances arising, such as (but not limited to) new evidence surfacing, this Report will be deemed final. If the Title IX Office determines to revise the Report after issuance, the Title IX Coordinator will share revisions with the parties and the Office of Human Resources’ Affirmative Action Officer. 

At least 10 days prior to a hearing, the Office of Human Resources’ Affirmative Action Officer will send to each party and the party’s advisor, if any, the final Title IX Investigative Report in an electronic format or a hard copy. 

4.7.1.3 Methods of Resolving a Charge of a Violation of the Title IX Sexual Harassment Policies

4.7.1.3.1 Accept Responsibility for Alleged Violation and Associated Sanctions

At any time before the start of a hearing to resolve the complaint, the Respondent may elect to accept responsibility for the alleged violation(s) and accept the benchmark or other appropriate sanctions for the alleged violation as determined by the Affirmative Action Officer or designee.

4.7.1.3.2 Informal and Formal Resolution Methods

In the event that the Complainant is a student or, regardless of the student or employee status of the Complainant, if the conduct reported is Rape, Sexual Assault, or Sexual Exploitation, the resolution methods described in Section 5.8 Resolution through the Informal Process and Mediation described in Section 5.9 Resolution Through the Formal Process will not be permitted. Therefore, if the Respondent in these circumstance has not accepted responsibility and/or the sanctions offered, the matter will proceed to a hearing. For more information about Title IX Sexual Harassment Hearings, see Section 4.7.1.4.

In matters in which informal resolution methods are permitted, the Affirmative Action Officer will review with the Complainant the policies of Section 5.8 Resolution through the Informal Process and Section 5.9 Resolution through the Formal Process.

4.7.1.4 Title IX Sexual Harassment Hearings

As Xavier administers Title IX Sexual Harassment hearings in accordance with these procedures, it reserves the right to collect and offer information and present witnesses to be considered by the Title IX Sexual Harassment Hearing Panel. The people acting on behalf of Xavier for these purposes are identified later in these procedures.

The purpose of a hearing is to determine if a Respondent is responsible or not responsible for the alleged violation of the HCAP.

Title IX Sexual Harassment hearings are conducted with all parties physically present in the same geographic location. At Xavier’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. In addition, at the request of either party, Xavier will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.

A Respondent will be found responsible if responsibility for the charged violation is established by a "preponderance of the evidence." This means that the Title IX Sexual Harassment Hearing Panel has determined that it is "more likely than not" that the Respondent violated the HCAP policy at issue.

The Respondent, Complainant and Xavier may identify witnesses to be called at a hearing. Only witnesses with knowledge directly related to the pending charges will be allowed to present information at the hearing. If it has not already done so in conjunction with the preparation of its report, the Title IX Office may interview a witness prior to the hearing so that the Affirmative Action Officer can determine if the witness has knowledge directly related to the pending charges.

Witnesses may be dismissed from the hearing if statements are based on opinion or perceived character alone.

A Title IX Sexual Harassment Hearing Panel may reasonably limit the scope and time devoted to each case or item of discussion during the hearing, including the number of people providing information. Specifically, corroboration provided by witnesses shall be allowed where appropriate, but repetitive statements, discussion or witness material may be limited.

Title IX Sexual Harassment Hearings are not governed by the rules of evidence used by courts.

At the Affirmative Action Officer's discretion, multiple incidents involving the same individual may be considered in one Title IX Sexual Harassment Hearing.

At the Affirmative Action Officer’s discretion, charges against multiple responding parties charged with the same or related violations arising out of one or more related incidents may be considered in one Title IX Sexual Harassment Hearing.

All Title IX Sexual Harassment Hearing Panel Members receive annual training, appropriate for hearing Title IX Sexual Harassment matters.

At the discretion of the Affirmative Action Officer, or designee, technology may be used to facilitate hearing participation for involved parties who are not able to be physically present for the hearing. Examples include but are not limited to video conferencing and audio conferencing, etc.

The process for a Title IX Sexual Harassment Hearing should proceed using the timelines given below. The Affirmative Action Officer, in their sole discretion, may adjust any time periods as necessary to promote the proper resolution of each complaint. Time periods governing the conduct and participation of reporting parties or responding parties shall be strictly enforced, unless specifically adjusted by the Affirmative Action Officer, in their sole discretion. All other time periods shall be guidelines, and though it is important to act promptly, strict adherence to these guidelines may not be possible in some or many instances.

For purposes of this policy, one business day shall be any weekday school is in session, according to the University's academic calendar, including the fall, spring and summer semesters.

4.7.1.4.1 Notice of Charges for a Title IX Sexual Harassment Hearings

Within seven days of receiving the Title IX Investigation Report from the Title IX Office, the Affirmative Action Officer will notify in writing the Respondent that the Affirmative Action Officer has received the report. This notification will include the HCAP sections allegedly violated and possible sanctions for those violations, and will direct the employee to information about the Title IX Sexual Harassment complaint resolution process.

4.7.1.4.2 Complainant Involvement in Title IX Sexual Harassment Hearings

In matters involving allegations of Title IX Sexual Harassment, a Complainant may choose how they want to participate in the Title IX Sexual Harassment complaint resolution process.

  • A Complainant may fully participate in the Title IX investigation and the conduct process as described in this HCAP. Under this option, the Complainant will be afforded all rights enumerated in Section 4.7.1.4.6.3 Rights of Complainant or
  • A Complainant may provide their report/statement to the Title IX Office and discontinue participation. The Title IX Office will assess under Xavier's Title IX Sexual Harassment policies what steps, if any, and up to and including terminating the investigation and grievance process, are necessary to address and resolve the charge. The Complainant (and Respondent if applicable) will be notified of this decision, or
  • A Complainant has the right not to participate in Xavier's Title IX Sexual Harassment complaint resolution process at any time and will not be compelled to do so. It should be understood that this will limit Xavier's ability to fully address the reported policy violations. If a Complainant notifies Xavier Officials that they will not be participating, the Title IX Coordinator and/or Affirmative Action Officer will determine under Xavier’s Title IX Sexual Harassment policies whether the University will proceed with the complaint resolution process without the Complainant's participation. No report of any statement of the Complainant will be allowed in the hearing if the Complainant does not participate.

4.7.1.4.3 Title IX Sexual Harassment Hearing Panels

Title IX Sexual Harassment hearings will be heard by a Title IX Sexual Harassment Hearing Panel (Hearing Panel). Hearing Panel members will be selected from a pool of faculty members, administrators, and students who receive annual training on Title IX Sexual Harassment and adjudicating Title IX Sexual Harassment hearings. Hearing Panels will consist of three individuals, and will generally be comprised of one faculty, one staff, and one student member. The staff or faculty member serving on the Hearing Panel will have received training to serve as the Chair of the Hearing Panel and will be designated to serve that role

  • As soon as possible after their selection, the Hearing Panel shall select a Chairperson from among the members of the Panel to serve for the duration of the Hearing procedures for which this Panel was selected. The Chair may then consult with the Affirmative Action Officer about the complaint to determine the need for any consultants to assist the Hearing Panel during or after the formal hearing.

4.7.1.4.4 Timing of Title IX Sexual Harassment Hearings

  • Title IX Sexual Harassment hearings will be scheduled no sooner than 10 business days after the Office of Human Resources’ Affirmative Action Officer has received the final Title IX Investigation Report.  
  • At least five business days before a Title IX Sexual Harassment Hearing, the Responding Party and the Reporting Party will be notified of the date, time, location of the hearing, names of Hearing Panel members, and will be provided with all documents to be presented to the Hearing Panel. FERPA-protected information may be redacted. Each party will have two business days after the Responding Party and Reporting Parties are notified of the date, time and location of the hearing to notify the Office of Human Resources’ Affirmative Action Officer of a request to change the date or time of the hearing or an objection to any Hearing Panel member. Changes to date and time and objections will only be granted for good cause, as determined in the sole discretion of the Office of Human Resources’ Affirmative Action Officer. The parties will be notified in writing of any change to the date, time, location, or Hearing Panel at least two business days before the originally- scheduled hearing date. 
  • At least two business days before the hearing, the Responding Party and Reporting Party, if any, must submit to the Office of Human Resources’ Affirmative Action Officer a list of witnesses they want to present information at the hearing. 
  • At least 24 hours before the hearing, the Responding Party and Reporting Party, if any, will each be given a list of all witnesses who will be called at the hearing, including witnesses submitted by the Responding Party, the Reporting Party and Xavier. 
  • "Business days" means any day that is not a weekend, University break period or a national holiday. 

4.7.1.4.5 Title IX Sexual Harassment Hearing Procedures

A Title IX Sexual Harassment Hearing will be conducted according to the following procedures: 

(1) The hearing will be closed to everyone except those persons specifically provided for in this process or persons whose presence at the hearing is authorized in advance by the Affirmative Action Officer.

(2) A respondent will be presumed to be not responsible for the alleged conduct until a different determination regarding responsibility is made at the conclusion of the hearing. To be found responsible, the Hearing Panel must conclude, based on the entirety of the statements and records presented, that there is sufficient evidence to conclude by a preponderance of the evidence that the respondent violated Xavier’s Title IX Sexual Harassment policy.

(3) Each party has the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney; however, as permitted by these Title IX Sexual Harassment policies, in a Title IX Sexual Harassment Hearing, Xavier limits the advisor’s role and participation in a hearing to only asking questions of the other party and/or witnesses. Outside of this limited “questioning” role, while the advisor may help the Complainant or Respondent prepare their position and privately/quietly consult with the party at any time, the advisor may not present the Complainant or Respondent’s position or speak for or on behalf of the party during the hearing. All parties and advisor conduct, including when advisors are questioning the other party or a witness, must be respectful and non-abusive. Should a party or advisor engage in conduct that does not align with these decorum standards, Xavier’s Affirmative Action Officer will address this issue and give the party or advisor the opportunity to correct their conduct. Should the individual continue to engage in conduct that does not meet Xavier’s decorum expectations, the Affirmative Action Officer reserves the right to have that individual leave the hearing. If such a step must be taken, the Affirmative Action Officer may require the party to use a different advisor to ask questions of the other party and witnesses.

  • If a party does not have an advisor present at the hearing, Xavier will provide an advisor to fulfill this limited role. This individual, who will be referred to as the “Questioning Advisor” will be a Xavier staff member specifically assigned and trained for this role.
  • If a Complainant has Xavier’s Campus Advocacy Coordinator as their advisor or either party has an Integritas Advisor as their advisor, those individuals may not serve as the Questioning Advisor. Therefore, the Complainant or Respondent will need to utilize a different advisor of choice or request a Xavier-assigned Questioning Advisor for the limited questioning role in the hearing.  In this event, the Integritas Advisor and/or Advocacy and Prevention Coordinator would be required to leave the hearing while the Questioning Advisor participates.

(4) A scheduled hearing may proceed in the absence of a Respondent, a Complainant, or any other individual who fails to appear. An absence will not be considered grounds for an appeal.

(5) At the beginning of the hearing, the Respondent and Complainant will each be advised of their rights. The Complainant, the Respondent, and the Hearing Panel will be provided the opportunity to ask relevant questions about the materials and information presented.

(6) In the hearing, each party’s advisor (or Questioning Advisor as the case may be) will be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such questions will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.

(7) Only relevant questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a question, the Hearing Panel Chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Reasons the Chair may determine the question may not be permitted include, but are not limited to the question posed being repetitive, harassing, unduly prejudicial, seeking to access privileged information (e.g. mental health information), and/or questions related to the sexual history of a party that does not fall within the potentially permitted scope of Section 4.7.1.4.5 Title IX Sexual Harassment Hearing Procedures. The Hearing Panel Chair must explain to the party proposing the questions any decision to exclude a question as not relevant. The Hearing Panel Chair's decision on relevancy is final. The Hearing Panel Chair will take the time they assess is necessary to make conduct a thorough, appropriate relevancy determination and may pause the hearing to discuss the relevancy question with the other Hearing Panel members before issuing their determination. Parties and advisors will be not permitted to challenge the relevancy determination after receiving the explanation.

(8) Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.

(9) Xavier will create an audio or audiovisual recording, or transcript, of the Title IX Sexual Harassment and make it available to the parties for inspection and review.

(10) At the conclusion of the hearing, the Hearing Panel shall confidentially consider all of the statements and records made available at the hearing to formulate a decision on the issue of responsibility. Except in exigent circumstances, the decision should be made within five business days of the conclusion of the hearing.

(11) If the Respondent is found to be responsible, the Affirmative Action Officer shall then provide the Hearing Panel with records reflecting any prior relevant conduct violations for which the Respondent was previously found responsible, which information may be considered by the Hearing Panel in recommending a sanction.

(12) If a Respondent is found responsible, the Hearing Panel will recommend sanctions to the Affirmative Action Officer, who will assess the recommended sanction(s). If the sanction ultimately imposed varies from the recommendation of the Hearing Panel, the Affirmative Action Officer will include the reasons for such variance in the notices provided to the Complainant and the Respondent as required by these policies.

 (13) At the conclusion of the hearing and Hearing Panel deliberation process, the Hearing Panel will issue a written determination regarding responsibility applying the preponderance of evidence standard of evidence.  The written determination will be provided to the parties simultaneously within five business days of the conclusion of the hearing.

(14) On a case by case basis, the Affirmative Action Officer may exclude a Respondent from campus pending the conclusion of the appeal.

(15) The determination regarding responsibility becomes final following the conclusion of the appeal process if an appeal is submitted, or, if an appeal is not submitted, the date on which an appeal would no longer be permitted to be submitted.

(16) The Title IX Coordinator is responsible for effective implementation of any remedies. 

4.7.1.4.6 Reporting and Respondent Rights and General Information Pertaining to Title IX Sexual Harassment Hearings

The Title IX Sexual Harassment complaint resolution process is an administrative process not an adversarial criminal or civil legal process. The rights and procedures required in such legal systems are not applicable in the employee conduct process.

The following rights and information apply in Title IX Sexual Harassment hearings:

4.7.1.4.6.1 General Information

  1. Xavier’s Title IX Sexual Harassment complaint resolution process ensures an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence.
  2. Credibility determinations will not be based on a person’s status as a Complainant, Respondent, or witness.
  3. The Title IX Sexual Harassment complaint resolution process does not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
  4. Xavier will not access, consider, disclose, or otherwise use a Complainant or Respondent’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless Xavier obtains that party’s voluntary, written consent to do so for a grievance process.
  5. Xavier provides an equal opportunity for the both parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
  6. Xavier does not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
  7. Each party may be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. Information on advisor participation and role in Title IX Sexual Harassment Hearings is described in Section 4.7.1.4.5 Title IX Sexual Harassment Hearing Procedures.
  8. Each party has the right to be present throughout the hearing but not during the deliberation of the Hearing Panel.
  9. Each party has the right to hear all of the information presented.
  10. Each party has the right to present pertinent information and witnesses to substantiate their position. Witnesses must be present at the hearing and their lack of attendance is not cause for appeal.
  11. Each party has the right to submit a request for appeal of the outcome of a hearing (Section 4.7.1.5 Title IX Sexual Harassment Appeals). 

4.7.1.4.6.2 Rights of the Respondent

These rights are specific to the Respondent and are in addition to the rights shared by both parties in Section 4.7.1.4.6.1 General Information.

  1. The Respondent has the right to remain silent. If silence is maintained, the outcome of the hearing will be determined on the information presented. The Hearing Panel may not draw any inference from a Respondent's choice to remain silent.
  2. The Respondent has the right to respond to the allegations against them. 

4.7.1.4.6.3 Rights of the Complainant

These rights are specific to the Complainant and are in addition to the rights shared by both parties in Section 4.7.1.4.6.1 General Information.

  1. A Complainant may choose how they want to participate in the Title IX Sexual Harassment Hearing (Section 4.7.1.2 Complainant Involvement in Title IX Sexual Harassment Hearings))
  2. A Complainant will be provided written notification of the outcome of the hearing with respect to that alleged violation.

4.7.1.5 Title IX Sexual Harassment Appeals

If the Hearing Panel finds a violation of the HCAP, the Complainant or Respondent may request an appeal of the Hearing Panel's findings and/or sanctions. A request for an appeal will only be granted if the request provides sufficient factual basis for one of the following grounds for an appeal:

  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time of the determination of the Harassment Hearing Panel regarding responsibility that could affect the outcome of the matter; and
  3. The Title IX and Interpersonal Violence Response Coordinator, the Title IX and Interpersonal Violence Response Program Director, or a Title IX Sexual Harassment Hearing Panel member(s) had a conflict of interest or bias for or against reporting or responding parties generally or the individual Complainant or Respondent that affected the outcome of the matter.

Aside from the grounds for appeal above, which are specific to Title IX Sexual Harassment, all other information in HCAP Section 5.10 Appeals applies to Title IX Sexual Harassment matters.

4.7.1.6 Supportive Measures

Pending resolution of a Title IX Sexual Harassment matter, when there is a significant student or employee conduct or health and safety concern that requires immediate intervention to preserve and support the general welfare and academic experience of one or more students, employees, and/or the Xavier community, the Title IX Office, Human Resources Office, or Xavier University Police Department, may implement Supportive and/or Interim Measures. Such measures are designed to restore or preserve equal access to the Xavier’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Xavier’s educational environment, or to deter sexual harassment.

These measures may apply to one, both, or multiple parties involved. 

Additional information about, and examples of Supportive and Interim measures, may be found in Section 5.5. Supportive and Interim Measures for Individuals and/or Campus Community.

4.7.1.7 Retaliation Prohibited

Under Title IX, neither Xavier nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, 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 under these policies. 

Intimidation, threats, coercion, or discrimination, including charges against an individual for HCAP 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, made for the purpose of interfering with any right or privilege secured by Title IX constitutes retaliation. 

Xavier will keep confidential the identity of any individual who has made a report or complaint of Sex Discrimination, including any individual who has made a report or filed a formal complaint of Sexual Harassment, any Complainant, any individual who has been reported to be the perpetrator of Sex Discrimination or Sexual Harassment, any Respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. 

Complaints alleging retaliation may be filed according to the Title IX Sexual Harassment policies and complaint resolution process of the HCAP. 

The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under Title IX. However, as a private institution, constitutional rights do not otherwise apply.

Charging an individual with a HCAP violation for making a materially false statement in bad faith in the course of a Title IX Sexual Harassment complaint resolution process does not constitute retaliation prohibited by Title IX, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

4.7.1.8 Benchmark Sanctions for Title IX Sexual Harassment

Xavier University’s general approach to sanctioning for HCAP policy violations is described in Section 5.9.10. Sanctioning.

If an employee is found responsible for Title IX Sexual Harassment, the following benchmark sanctions are a starting point for determining the appropriate sanction. Actual sanctions imposed are determined on a case-by-case basis and may be greater or lesser than the benchmark sanctions. These benchmark sanctions are intended to offer guidance to the individuals and panels imposing and recommending sanctions, and to alert students of the serious nature of certain violations. This list does not limit the forms of sanctions that may be assessed through the Student Conduct Process.

Definitions of conduct that constitutes prohibited Title IX Sexual Harassment are in Section 4.7.1.

(a) Sexual Harassment- the benchmark sanction for an employee found responsible ranges from Letter of Reprimand to Termination.

(b) Forcible Rape- the benchmark sanction for an employee found responsible is Termination.

(c) Forcible Sodomy-  the benchmark sanction for an employee found responsible is Termination.

(d) Sexual Assault with an Object- the benchmark sanction for an employee found responsible is Termination.

(e) Forcible Fondling- the benchmark sanction for an employee found responsible is Termination.

(f) Incest: the benchmark sanction for an employee found responsible is Termination.

(g) Statutory Rape- the benchmark sanction for an employee found responsible is Termination.

(h) Dating violence- the benchmark sanction for an employee found responsible ranges from Letter of Reprimand to Termination.

(i) Domestic violence- the benchmark sanction for an employee found responsible ranges from Letter of Reprimand to Termination.

(j) Stalking- the benchmark sanction for an employee found responsible ranges from Letter of Reprimand to Termination.