Equal Opportunity, Nondiscrimination, Sexual and Other Forms of Harassment

St. Mary’s University (StMU) affirms its commitment to promote the goals of fairness and equity in all aspects of the educational enterprise in full compliance with the requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Civil Rights Act of 1991, the Violence Against Women Act of 1994, the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Genetic Information Nondiscrimination Act, the Immigration Reform and Control Act of 1986, and other federal, state, and local laws.

1. Jurisdiction and Applicability

This Policy applies to the University’s education programs and activities, to conduct that takes place on the campus or on property owned or controlled by the University, at University-sponsored events, and in buildings owned or controlled by University-recognized student organizations. The University’s disciplinary response may be limited if the Respondent is a visitor or other third-party or is not subject to the University’s jurisdiction. Except as noted in Section (SECTION 9. CONFIDENTIALITY in this doc) of this policy, all University employees are mandatory reporters.

This Policy can also be applicable to the effects of off-campus misconduct that effectively deprives someone of access to the University’s education programs and activities, that creates a hostile work environment, or that adversely affects the terms and conditions of someone’s employment.  The University may also extend jurisdiction to off-campus conduct or online conduct when the Title IX Coordinator determines that the conduct affects a substantial University interest. A “substantial University interest” is defined to include:

• Any action that constitutes a criminal offense as defined by federal, state, or local law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law, whether the action takes place on the University’s campus or elsewhere;
• Any situation in which it appears that the Respondent may present an immediate danger or threat to the health or safety of any student or other University community member;
• Any situation that significantly impinges upon the rights, property or achievements of self or others or significantly breaches the peace and/or causes social disorder;
• Any situation that is detrimental to the educational interests or mission of the University;
• Off-campus discriminatory or harassing communication that is directed at a protected class (or should reasonably be known to have a negative impact on a protected class) by an employee when such speech is made in an employee’s official or work-related capacity or when an employee is using UD equipment, network, software, cloud-based services, WiFi, and/or servers.

If the Respondent is unknown or is not a member of the University community, the Title IX Coordinator (or designee) will assist the Complainant in identifying appropriate campus and local resources and support options and/or, when criminal conduct is alleged, in contacting local or campus law enforcement if the individual would like to file a police report.

Further, even when the Respondent is not a member of the University’s community, supportive measures, remedies, and resources may be available to the Complainant by contacting the Title IX Coordinator.

In addition, the University may take other actions as appropriate to protect the Complainant against third parties, such as barring individuals from University property and/or events.

 DEFINITIONS

COMPLAINANT: A complainant is defined as an individual who is alleged to be the victim of conduct that could constitute sexual harassment and/or sexual misconduct.

RESPONDENT: A respondent is defined as an individual who is reported to be the perpetrator of conduct that could constitute sexual harassment and/or sexual misconduct.

2. False Allegations and Evidence

The University takes the accuracy of information very seriously, as an accusation of racism, homophobia, sexual harassment, sexual violence, stalking, dating or domestic violence, or other harassment or discrimination, may have severe consequences. Knowingly making a false report or complaint under this policy or knowingly providing false or intentionally misleading information during an investigation may result in disciplinary action up to and including dismissal from the University or termination of employment. A good faith complaint that results in a determination that the evidence is not sufficient to support a formal charge or to constitute a violation of this policy is not considered to be a false report.

Parties or witnesses may be subject to disciplinary action if they engage in any of the following:

• knowingly fabricating or otherwise providing false evidence;
• destroying or tampering with evidence;
• pressuring other parties to provide false information or evidence; and
• deliberately misleading any official involved in the resolution of the complaint.

It is a violation of the Student Code of Conduct and the Employee Handbook to make an intentionally false report of any University policy violation or to obstruct University disciplinary procedures.  Filing a false report may also violate state criminal statutes and civil defamation laws.

3. Nondiscrimination

The University fully subscribes to all federal and state civil rights laws banning discrimination in institutions of higher education. The University will not discriminate against any employee, applicant for employment, student, or applicant for admission on the basis of race, ethnicity, color, sex, pregnancy, parental status, religion, national origin, citizenship status, physical or mental disability, age, marital status, sexual orientation, gender, gender identity/expression, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law, including protections for those opposing discrimination or participating in any allegation process on campus or within the Equal Employment Opportunity Commission or other human rights agencies.

This policy covers nondiscrimination in employment and in access to educational opportunities. Therefore, any member of the University community who acts to deny, deprive, or limit the educational or employment access, benefits, or opportunities of any member of the University community on the basis of their actual or perceived membership in the protected classes listed above is in violation of this policy.

4. Americans with Disabilities Act

The University is committed to full compliance with the Americans with Disabilities Act, as amended (ADA) and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws pertaining to individuals with disabilities. Under Section 504 and the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities. The University is committed to providing reasonable accommodations to qualified individuals with disabilities that do not create a fundamental change in programming and/or impose an undue burden on the University.

• Student with Disabilities
  • The University ensures effective access to its academic programs, services, and activities through a variety of accommodations and/or services tailored to the strengths and unique needs of each individual student with a disability. All accommodations and/or services are provided on a case-by-case basis. A student with a diagnosed disability who is requesting accommodations and/or services needs to contact the Student Services Accessibility to establish and maintain disability-related services and/or accommodations at the University.

5. Discriminatory Harassment

The University is committed to providing a work and educational environment free of discriminatory harassment. Consistent with the University’s policy on academic freedom, the University’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive subject matters. The sections below describe the specific forms of legally prohibited harassment that are also prohibited under this policy.

• Discriminatory and Bias-Related Harassment
  • Harassment constitutes a form of discrimination that is prohibited by law. The University’s harassment policy explicitly prohibits any form of discriminatory harassment on the basis of actual or perceived membership in a protected class by students or employees which creates a hostile environment, both objectively and subjectively.
  • A hostile environment may be created by oral, written, graphic, or physical conduct that is sufficiently severe or pervasive so as to interfere with, limit, or deny the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits, or opportunities. This definition of hostile environment is based on Federal Register/Vol. 59, No. 47/ Department of Education Office for Civil Rights, Racial Incidents and Harassment against Students at Educational Institutions Investigative Guidance.

• Sexual Harassment
  • Both the Equal Employment Opportunity Commission (EEOC) and the State of Texas regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice. The University has adopted the EEOC definition of sexual harassment, amended to address the special needs of an academic community, which consists not only of employer and employees but of students as well. The amended definition is as follows: Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status, (2) submission to or rejection of such conduct by an individual is used as the basis of employment or academic decisions affecting such individual, or (3) such conduct is sufficiently severe, pervasive or persistent that it has the effect of unreasonably interfering with an individual’s work or academic or student status by creating an intimidating, hostile, or offensive working, educational, or social environment.

6. Sexual Harassment

St. Mary’s University has an obligation to respond to all types of sexual harassment (including any instance of sexual assault, dating violence, domestic violence, or stalking) occurring in any educational program or activity setting on campus, off-campus, or in any residences or houses owned or controlled by university-recognized student organizations.

An educational program or activity includes locations, events, or circumstances over which the University exercised substantial control over both the reporting party and the respondent and the content in which the harassment occurs.

Members of the university community who report that they are victims of sexual harassment, sexual assault, dating violence, domestic violence, or stalking have the right to report their incident to the University and to receive a prompt and equitable resolution to this report.

Any reporting party also has the right to choose whether to report the crime to university or local law enforcement. The University would like to stress the importance of a reporting party going to a hospital for treatment and to preserve evidence, if applicable, as soon as possible after an incident occurs.

Under federal law, the university’s obligation to respond to incidents of sexual harassment and misconduct does not apply to reported incidents of sexual harassment occurring off- campus in private settings that are not part of a university educational program or activity

Both the Department of Education’s Title IX Final Rule and the State of Texas regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice. The University has adopted the definition of sexual harassment found in the Final Rule, which defines sexual harassment broadly to include three types of misconduct on the basis of sex:

• Any instance of quid pro quo harassment by a university employee
• Any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access
• Any instance of sexual assault (as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (hereafter referred to as “The Clery Act”), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

Quid pro quo sexual harassment occurs when a harasser such as a work supervisor, professor, or other person is in a position of authority over the person being harassed. This type of sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions.

Sexual harassment that does not involve any proposed quid pro quo arrangement but instead creates a hostile educational or work environment is also covered under this policy.

Specifically, this policy covers any unwelcome actions that a reasonable person would find so severe, pervasive and objectively offensive that they create an intimidating, hostile, or offensive working, educational, or social environment that effectively denies, or could deny, a person equal work or academic access.

Incidents of sexual assault are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access, because such misconduct is sufficiently serious to deprive a person of equal access.

The following actions are considered violations of this policy:

• Sexual Assault
  • Sexual assault is any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.
  • Examples of sexual assault include:
    • Rape: 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. This offense includes the rape of both males and females.
    • Fondling: 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 capacity. Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
    • Statutory Rape: Sexual intercourse with a person who is under the age of consent (18 years old)

• Dating Violence
  • Dating violence is an act of violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on: 
    • The reporting party’s statement and with consideration of the length of the relationship; the type of relationship
    • The frequency of interaction between the persons involved in the relationship.

• Domestic Violence
  • Domestic violence is a felony or misdemeanor crime of violence committed by
    • A current or former spouse or intimate partner of the victim
    • A person with whom the victim shares a child in common
    • A person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner.
    • 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.
    • 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 occur

• Stalking
  • Stalking is 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.
    • Cyberstalking is defined as the use of electronic means to repeatedly harass, alarm, or annoy another person.

• Sexual Misconduct
  • Both the Department of Education’s Title IX Final Rule and the State of Texas regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice. The University has adopted the definition of sexual harassment found in the Final Rule, which defines sexual harassment broadly to include three types of misconduct on the basis of sex: 
  • Sexual Harassment (as defined above)
  • Non-Consensual Sexual Intercourse (Texas Penal Code § 22.011) Defined as:
    • any sexual penetration or intercourse (anal, oral, or vaginal),
    • however slight,
    • with any object,
    • by a person upon another person,
    • that is without consent and/or by force.
    • Sexual penetration includes vaginal or anal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.
  • Non-Consensual Sexual Contact Defined as:
    • any intentional sexual touching,
    • however slight,with any object,
    • by a person upon another person,
    • that is without consent and/or by force.
    • Sexual touching includes any bodily contact with the breasts, groin, genitals, buttocks, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
  • Sexual Exploitation- Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse, or Non-Consensual Sexual Contact. Examples of sexual exploitation include, but are not limited to:
    • Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed).
    • Taking pictures or video or audio recording of another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent).
    • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.

• Other Misconduct Offenses
  • Other actions committed on the basis of an individual’s actual or perceived membership in a protected class will be considered violations of this policy, including:
    • Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person.
    • Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another.
    • Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy).
    • Bullying or cyber-bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally.
    • Cyberbullying is bullying that involves the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

7. Consent

Consent is knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear affirmative expression in words or actions that the other individual consented to that specific sexual conduct. Consent cannot be obtained by threat, coercion, or force. Agreement under such circumstances does not constitute consent.

A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. It is not an excuse that the individual accused of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.

Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone may not indicate consent. A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

In Texas, a minor (meaning a person under the age of 18 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 18 years old is a violation of this policy.

8. Filing and/or Reporting an Allegation or Incident

Generally, any person may report sexual harassment or misconduct (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator(s), or by any other means that results in the Title IX Coordinator(s) receiving the person’s verbal or written report.

A “formal complaint” is defined as a document filed by a reporting party or signed by a Title IX Co-Coordinator alleging discriminatory misconduct against a respondent and requesting that the school investigate the allegation of discriminatory misconduct. A formal complaint can be filed directly by a reporting party with a Title IX Co-Coordinator if the reporting party is participating in an education program or activity of the University or is attempting to participate in an education program or activity.

Students, staff, administrators, or faculty of the University who witness or receive information that this policy may have been violated must also promptly make a formal complaint of the incident to the institution’s Title IX Coordinator(s). Individuals are encouraged to report allegations promptly in order to maximize the University’s ability to obtain evidence and conduct a thorough, impartial investigation. Failure to report promptly may significantly limit the University’s ability to investigate and provide resolution to a matter.

Deliberately false and/or malicious accusations of violations of this policy, as opposed to allegations which, even if erroneous, are made in good faith, are just as serious an offense and will be subject to appropriate disciplinary action.

For allegations of dating violence or domestic violence, sexual assault, or stalking, University nonstudent employees who knowingly fail to report or who knowingly falsify a report with the intent to harm or deceive are subject to criminal penalties and dismissal. (Texas Education Code § 51.253 et. Seq) 

Clery Compliance will assess each EDRP complaint it receives to see if it qualifies as a crime. This is done to fulfill the University’s legal obligation under federal law.

Any University employee who witnesses a crime must immediately notify the University’s Clery Compliance Coordinator clery@stmarytx.edu. Reports may be submitted on-line at the following website: https://www.stmarytx.edu/compliance/title-ix/

9. Confidentiality

Once a formal complaint of sexual harassment or misconduct is received, except as otherwise required by FERPA, The Clery Act, Title IX or other applicable laws, the identity of a reporting party who is the subject of a report must remain confidential and may only be disclosed to:

• Persons employed by St. Mary’s University who are necessary to conduct an investigation of the report or any related hearings
• A law enforcement officer as necessary to conduct a criminal investigation of the report
• The person or persons alleged to have perpetrated the reported incident, to the extent required by law
• Potential witness to the incident as necessary to conduct an investigation of the report.

Although the university will make every effort to keep the identity of any formal sexual harassment reporting party(s) private, federal law requires this information to be shared with the following parties: respondent, witness or reporter associated with a complaint of sexual harassment, and incident investigators, hearing and/or appeals panel.

If a reporting party would like the details of a sexual harassment incident to be kept confidential, the student may speak with on-campus counselors, health service providers, members of the clergy/chaplains or staff from the Wellness Programs who will maintain confidentiality, unless the student requests in writing that the information be shared.

10. Amnesty

The University encourages the reporting of misconduct and crimes by Complainants and witnesses. In some instances, Complainants or witnesses are hesitant to report to University officials or participate in resolution processes because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons.

It is in the best interests of the University community that Complainants choose to report misconduct to University officials, that witnesses come forward to share what they know, and that all parties be forthcoming during the process.

To encourage reporting and participation in the process, the University maintains a policy of offering parties and witnesses amnesty from minor policy violations – such as underage consumption of alcohol or the use of illicit drugs – related to the incident.

Amnesty does not apply to more serious allegations such as physical abuse of another or illicit drug distribution. The decision not to offer amnesty to a Respondent is based on neither sex nor gender, but on the fact that collateral misconduct is typically addressed for all individuals within a progressive discipline system, and the rationale for amnesty – the incentive to report serious misconduct – is rarely applicable to Respondent with respect to a Complainant.

Students: Sometimes, students are hesitant to assist others for fear that they may get in trouble themselves (for example, an underage student who has been drinking or using marijuana might hesitate to help take an individual who has experienced sexual misconduct to Public Safety).

The University maintains a policy of amnesty for students who offer help to others in need. While policy violations cannot be overlooked, the University may provide purely educational options with no official disciplinary finding, rather than punitive sanctions, to those who offer their assistance to others in need.

Employees: Employees may be hesitant to report harassment or discrimination they have experienced for fear that they may get in trouble themselves. For example, an employee who has violated the consensual relationship policy and is then assaulted in the course of that relationship might hesitate to report the incident to University officials.

The University may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident. Amnesty may also be granted to Respondents and witnesses on a case-by-case basis.

11. False Information and False Complaints

Any person, who in bad faith, knowingly files a false complaint or report under this Policy or provides materially false information is subject to separation from the University, as required by State law. A determination that a Respondent is not responsible for allegations of violation of this Policy does not imply a report, Formal Complaint, or information provided was false. Similarly, a determination that a Respondent is responsible for a violation under this Policy does not imply that a Respondent’s statements disclaiming responsibility were false.

12. Interference with Grievance Process under this Policy

Any person who interferes with the Grievance Processes under this Policy is subject to disciplinary action up to and including dismissal or separation from the University. Interference with a Grievance Process may include, but is not limited to:

• attempting to coerce, compel, or prevent an individual from providing testimony or relevant information;
• at any point, removing, destroying, withholding, or altering documentation relevant to the Grievance Process; or
• knowingly providing false or misleading information to the Title IX Coordinator, investigator or hearing officer, or encouraging others to do so.

13. Failure to Report by a Non-Confidential Employee

An employee of a postsecondary educational institution who, in the course and scope of employment, witnesses or receives information regarding the occurrence of an incident that the employee reasonably believes constitutes sexual harassment, sexual assault, dating violence, or stalking and is alleged to have been committed by or against a person who was a student enrolled at or an employee of the institution at the time of the incident shall promptly report the incident to the institution’s Title IX coordinator or deputy Title IX coordinator. All employees, not designated by the University as Confidential Employees, that knowingly fail to make such a report are subject to disciplinary action, including termination.

14. Retaliation

Protected activity under this Policy includes reporting an incident that may implicate this Policy, participating in the resolution process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.

Acts of alleged retaliation should be reported immediately to the Title IX Coordinator (or designee) or a Deputy Coordinator and will be promptly investigated.  The University is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.

It is prohibited for the University or any member of the University’s community to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, 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 this Policy and procedure.

Charges against an individual for Code of Conduct violations or other applicable policy 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 complaint of Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.

The exercise of rights protected under the First Amendment does not constitute retaliation.

Charging an individual with a Code of Conduct violation or other applicable policy violation for making a materially false statement in bad faith in the course of a resolution proceeding under this Policy and the related procedures does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith.

For employees, such types of materially adverse action include, but are not limited to:  dismissal from employment; demotion; loss of salary or benefits; or denial of promotion that otherwise would have been received.  For students, such types of materially adverse action include, but are not limited to:  being given a grade not based on class/test performance; denial of access to a course, program, organization, or housing; denial of support, services or other assistance given to other students; or denial of an award that otherwise would have been received.

An adverse action is retaliatory only if it is taken because the person participated in a protected activity.  Retaliatory behavior is to be distinguished from the University’s right to take action against an employee or student for other legitimate reasons, even if that employee or student has made a report of discrimination or harassment or otherwise participated in a protected activity.  For example, an employee’s supervisor may still provide an employee a negative performance review or take disciplinary action against an employee who violates a University policy that is unrelated to the participation in a process related to the Nondiscrimination and Anti-Harassment Policy.  For students, the University may still sanction a student who violates the Code of Conduct.

The filing of a Complaint under this Policy will not stop or delay any action unrelated to the Formal Complaint, including: (1) any evaluation or disciplinary action relating to a person who is not performing up to acceptable standards or who has violated University rules or policies; (2) any evaluation or grading of students participating in a class, or the ability of a student to add/drop a class, change academic programs, or receive financial reimbursement for a class; or (3) any job-related functions of a University employee. Nothing in this section shall limit the University’s ability to take interim action or execute an emergency removal.

15. Remedial Action

The University will implement initial remedial and responsive actions upon notice of alleged violations of this policy, and will take additional prompt remedial and/or disciplinary action with respect to any individual who has been found to engage in harassing or discriminatory behavior or retaliation in violation of this policy pursuant to the University’s Equity Dispute Resolution Process or Sexual Misconduct Resolution Process as appropriate to the initial complaint.

16. Legal Reporting Obligations

St. Mary’s University is required by federal law to issue a timely warning to the campus community for all Clery Act crimes that occur on or near campus or on other property owned or controlled by the university. Once a confirmed Clery crime is reported to campus security authorities (CSAs) or local police agencies and is considered to represent a serious or continuing threat to students and employees StMU will issue a timely warning to alert the Rattler community and aid in the prevention of similar crimes. Reporting party(s) of sexual misconduct should be aware that StMU will make every effort to ensure that a reporting party’s name and other identifying information is not disclosed in a Timely Warning, while still providing enough information for community members to make safety decisions in light of any potential danger. 

To fulfill the University’s Clery crime reporting obligations all university employees who have been classified as campus security authorities (CSAs) are required to report any Clery Act- related offense immediately to the University Police Department. Under Texas SB 212 any university employee, who, in the course of their job, witnesses or receives information regarding an incident that could reasonably constitute sexual harassment, sexual assault, dating violence, or stalking is required to report promptly this information to the Title IX Coordinator(s). The Title IX Coordinator(s) must then immediately notify the University Police to determine whether a Timely Warning is necessary or required for the reported incident. In addition, the Title IX Coordinator(s) is required to immediately report an incident to the University President if the safety of any person is in imminent danger as a result of the incident. 

University employees do not have to report an incident in which they were the victim of sexual harassment, sexual assault, dating violence, or stalking. Employees also do not have to report any disclosure made at a public awareness event sponsored by the University or by any University-affiliated student organization. 

Community members who wish to make a confidential complaint of sexual assault, sexual discrimination, sexual harassment, stalking, or dating and domestic violence may contact the following offices for assistance: 

• The Student Counseling Center
• The Student Health Center 
• Wellness Programs 
• Clergy/Chaplains

Community members who wish to make an anonymous complaint may file an online incident report through https://www.stmarytx.edu/compliance/title-ix/

17. Record Retention

Records of all allegations, investigation reports, associated records, findings, hearing and/or appeals documentation, sanctions and/or resolutions will be kept by the Title IX Coordinator(s) for seven (7) years from the time of their creation except for those cases involving separation from the University, which will be maintained according to university policy. Records of student expulsions will be maintained indefinitely by notation on the official academic transcript. 

18. Student-Athletes and NCAA Information-Sharing Requirements

As part of its commitment to fostering an athletic culture that supports student safety, the NCAA requires all student-athletes to self-disclose any personal conduct that resulted in discipline through a Title IX proceeding or in a criminal conviction for sexual, interpersonal, or other acts of violence.  Failure to accurately and fully disclose this information could result in penalties, including loss of eligibility to participate in athletics. 

In addition, institutions are charged with a) confirming the accuracy of these self-disclosures, b) sharing student-athlete disciplinary information related to these issues with other NCAA institutions in the event a student-athlete wishes to enroll in a different institution, and c) disclosing to the Athletic Department when the institution begins any formal investigation or imposes any disciplinary action related to sexual, interpersonal, or other violence involving a Respondent who is a student-athlete.  In all instances, the information shared will be strictly limited to that information necessary to meet these compliance requirements and will not include any information regarding the Complainant. Student-athletes will receive notice of these requirements through the Athletic Department as part of their annual athletic compliance certification.  Students who have questions about this policy may contact the Title IX Coordinator(s) or the Compliance contact in Athletics..

19. Professional References

All external inquiries for a professional reference regarding the work performance of a former or current employee must be initially directed to the Office of Human Resources. This is to ensure that appropriate references are provided and that the proper documentation to support these references is on file. If the Office of Human Resources has a written authorization for the disclosure of such information on file for the former employee, then the individual to whom the inquiry was addressed may respond with the requested information so long as the responses are factual, made in good faith, and are non-inflammatory. If the external inquiry is accompanied by an authorization to release such information in a form acceptable to the University, as determined by the Office of Human Resources, the individual may likewise respond with the requested information provided that the responses made are factual, made in good faith and are non-inflammatory. If a written authorization is not on file or external inquiry is not accompanied by a written authorization, the Office of Human Resources will only respond with a neutral reference that includes dates of employment and positions held.

20. Campus Title IX Coordinator(s), Hearing Officers, and Investigation & Panel Members

Investigators, hearing and appeals panel members are assigned at the direction of the Title IX Coordinator(s). Hearing Officers are assigned as needed for any allegations of sexual misconduct and preside over the live hearing. Hearing Officers can be employees of the University and/or outside consultant/vendors.

Investigators, hearing and appeals panel members receive annual training organized by the Title IX Coordinator(s), including a review of University policies and procedures, so that they are able to provide accurate information to members of the University community. Investigators, hearing and appeals panel members are required to attend annual training.

Panel member appointments are reviewed annually and should be made with attention to representation of groups protected by this policy. Individuals who are interested in serving as an investigator, hearing and appeals panel member are encouraged to contact the Title IX Coordinator(s) or their respective Vice President/Provost.

21. Policy Revisions

These procedures will be reviewed and updated annually by the Title IX Coordinator(s). The Title IX Coordinator(s) may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party. However, the Title IX Coordinator(s), in consultation with appropriate campus officials, may also vary procedures materially with notice upon determining that changes to law or regulation require policy or procedural alterations not reflected in the current policy or procedure.

22. Questions and Reporting

Questions about this policy may be made internally to titleix@stmarytx.edu or to:

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Approved by Executive Council 03 September 2024