Discriminatory Harassment and Sexual Misconduct Policy
Approved by the Student Senate September 6, 2013. Approved by the Faculty September 9, 2013.
Effective September 20, 2013
Reed College is committed to maintaining environments that enable a free and diverse community in which students, faculty, and staff can live, learn, work and express themselves. Membership in the Reed community, as governed by the Honor Principle, imposes obligations on students, faculty, and staff to respect the dignity and autonomy of others and to treat one another civilly and without regard to factors irrelevant to participation in the life of the College.
This policy details and explicitly prohibits specific forms of harassment and encourages the reporting of these prohibited behaviors. Reed College will work to prevent them and their recurrence, and to correct any discriminatory effects on a complainant or others.
The prohibitions within this policy may appear to place a kind of restriction on academic freedom and individual freedom of expression. Those forms of freedom are central to the College’s values, and occasionally, certain limited forms of discomfort may be inevitable results of the exercise of those freedoms and the pursuit of the mission of the College. The Reed College Mission Statement and the Constitution and Bylaws of the Faculty express the College’s deep commitment to academic freedom and to the free exchange of ideas. The preamble to the Community Constitution (as of September 2013) emphasizes the interrelationship between freedom and honorable conduct:
We declare our commitment to responsible and honorable conduct in academic and community affairs, and we reaffirm one another's rights to freedom of inquiry and expression in coursework, scholarship, and the day to day life of the Reed Community. Since such freedom requires an atmosphere of trust and mutual confidence, we further declare that dishonesty, intimidation, harassment, exploitation, and the use or threat of force are incompatible with the preservation of this freedom.
Except as otherwise specified herein, this policy applies to faculty, staff, students, and agents of the College while in their representative role. It also applies to visitors, contractors and subcontractors, as well as to any other person who participates in or benefits from Reed College programs and activities, whether on or off campus, including academic, educational, extra-curricular, athletic, residential, and workplace programs and activities, and to any person using Reed premises. This policy covers behavior that occurs outside of Reed-sanctioned events or Reed properties when it impacts an individual’s ability to access or benefit from Reed College programs and activities.
Reed College acknowledges and intends to comply with its legal responsibilities in all its programs and activities. This policy is required by, and is as a whole intended to be consistent with, Title IX of the Education Amendments of 1972, 34 CFR Part 106, and any other applicable law or regulation that prohibits discrimination on the basis of any legally protected category in the educational programs or activities of colleges and universities, in employment, or in any other relationship which is governed by law. Reed College also acknowledges and intends to comply with its legal responsibilities under federal or Oregon law, including the reporting responsibilities of the Clery Act, 34 CFR 668.46. If any provisions of this policy are contrary to or interfere with any applicable law, that law will supersede the inconsistent policy provisions. Behavior violating this policy may also separately violate federal, state, or other law; it may also violate other policies of the College.
Because of the close connection between this policy and Title IX, significant parts of the policy’s enforcement are overseen by Reed’s Title IX Coordinator. Contact information may easily be found from the Title IX Coordinator Resource Page and other places on the College’s website. See the Title IX Coordinator Resource Page for sources of help with questions about this policy and related policies and procedures.
II. Notice of Non-discrimination
Reed College does not discriminate on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, gender expression, age, marital status, military status, veteran status, genetic information, physical or mental disability, pregnancy, status as a parent, family relationship, or on the basis of any other category protected by law. Reed does not consider any of the above attributes in administration of its employment policies, educational policies, admissions policies, scholarship and loan program, housing policies, and athletic and other school-administered programs. In its policies and actions, Reed will comply with its obligations under state and federal law including Title VI and Title VII of the 1964 Civil Rights Act, Title IX of the 1972 Education Amendments Act, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (ADA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), Oregon Revised Statutes, and any other applicable law.
III. Use of a Reasonable Person Standard
The College will use a “reasonable person” standard when applying the definitions herein and in investigating reports and complaints of violations of this policy, both in determining facts and in assessing culpability.
A “reasonable person” is a hypothetical person who is level-headed and rational, aware of community norms, and not under the influence of a judgment-impairing substance.
This standard can be used in different ways throughout the investigation and adjudicative process. For example, since the standard is referred to in the definition of prohibited discriminatory harassment, parties investigating a report or formal complaint of discriminatory harassment will use the reasonable person standard by assessing the situation from the perspective of a reasonable person as defined above to decide if the behavior constitutes a violation of this policy. As another example, parties may use the reasonable person standard when assessing whether a reasonable person in the same context as the respondent would believe that they had consent in that context.
IV. General Definitions Used in This Policy
For purposes of this policy, certain terms are defined in a specific way. The following definitions apply where the defined terms are used in this policy, regardless of whether the terms have a different meaning in other contexts.
Agents of the College: Individuals serving as official representatives for the College in any unpaid or paid capacity.
Complainant: An individual who makes a report or a formal complaint regarding violation(s) of College policy.
Faculty: A member of the teaching or research staff who holds academic rank, including those on visiting appointments and those on sabbatical or leave. It also includes visiting scholars and emeriti faculty who are teaching or who have an office on campus. “Academic rank” means the rank of Instructor, Assistant Professor, Associate Professor, or Professor.
Respondent: An individual alleged to have violated College policy, who has been named as such in a report or a formal complaint.
Staff: Individuals employed by Reed College who are not members of the faculty. Bargaining unit staff are held to College policies unless their collective bargaining agreement differs from College policy.
Student: An individual who is currently enrolled, registered, on leave, or has made arrangements with the Business Office to pay tuition and fees.
V. Discriminatory Harassment
Discriminatory harassment is unwelcome verbal, written, visual, or physical conduct based on or motivated by an individual’s or group’s actual or perceived affiliation with a protected class or category. See section II of this policy for a list of protected classes or categories.
Discriminatory harassment violates this policy if it is sufficiently severe, pervasive, or persistent that it either (1) denies, interferes with, or limits a person’s ability to participate in or benefit from the College’s programs or activities; or (2) creates a learning, working, or living environment that a reasonable person would consider intimidating, hostile, or offensive. Whether conduct constitutes prohibited discriminatory harassment depends upon the context of the conduct, and is a matter that is to be evaluated from the perspective of a reasonable person. The present section includes coverage of discriminatory harassment that is based on sexual orientation, sex category, or gender identity or expression, whether or not the harassing behavior is itself sexual in nature. Section VI addresses, in detail, discriminatory harassment that is sexual in nature.
Discriminatory harassment can be carried out by various means, from the use of offensive or intimidating references to a protected class (such as with slurs, epithets, or asserting offensive stereotypes) to outright threats, and by way of various mechanisms or media, whether verbal, non-verbal, written, visual, electronic or other.
VI. Consent and Sexual Misconduct
Three categories of sexual misconduct are addressed below: sexual assault, sexual exploitation, and sexual harassment. This section begins with a discussion of the crucial concept of consent, and ends with a discussion of relationships among faculty, staff, and students.
Consent is defined here as conscious, relevantly informed, and fully voluntary agreement to, or permission for, an act. The following points should be emphasized:
- To consent is to actively agree to, or actively give permission for, something. Though this may require explicit verbal discussion, especially in unfamiliar situations, consent can be communicated nonverbally, especially in the space of mutual recognition created by a stable, ongoing relationship. To consent is not to be in a passive state.
- Silence or inaction do not, in and of themselves, communicate consent. The absence of an explicit denial of consent does not constitute consent.
- Consent to one form of sexual activity does not by itself constitute consent to any further sexual activity.
- A person’s consent to an ongoing activity can be removed by that person at any time.
- Previous or ongoing sexual relationships or encounters do not in themselves constitute consent to any current sexual acts.
- Consent cannot be forced or coerced; agreement or permission due to threat, implied threat, or intimidation does not constitute consent.
- A person who is incapacitated – whose judgment is seriously impaired by alcohol, other drugs, or other factors, such as lack of sleep – cannot give consent.
- Oregon state law considers persons under the age of 18 to be “incapable of consenting to a sexual act” (ORS §163.315.) and states that if lack of consent is solely a result of the age of the victim, it is a defense to certain crimes that the actor was less than three years older than the victim at the time of the alleged offense (ORS § 163.345).
B. SEXUAL ASSAULT
Sexual assault is defined in this policy as non-consensual sexual contact or non-consensual sexual intercourse.
Sexual contact is any intentional touching of another person in a sexual manner, however light or momentary, whether that touching is direct or indirect. Sexual contact includes, but is not limited to:
- touching, in a sexual context or manner, another person’s breast, buttock, groin, or genitals;
- touching, in a sexual context or manner, another person using one’s own breast, buttock, groin, or genitals;
- physically causing another person to touch themselves or another with or on the breasts, buttocks, groin or genitals; or
- any intentional bodily contact made in a sexual manner, even though not involving contact with, of, or by the breasts, buttocks, groin, genitals, mouth or other orifice.
Sexual intercourse is vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight or momentary the penetration.
Sexual assault (i.e., non-consensual sexual contact or intercourse) is prohibited by this policy.
Hence, those engaging in sexual activity must ensure that the consent of anyone else involved in that activity is present. Again, see section A, above, for a discussion of consent.
For more information about the pertinent Oregon statutes on sex offenses, see ORS §163.305-479.
C. SEXUAL EXPLOITATION
Sexual exploitation occurs when a person takes non-consensual or abusive sexual advantage of another person for their own advantage or benefit, or for the benefit or advantage of anyone else. Sexual exploitation includes but is not limited to:
- Non-consensual video or audio-recording of sexual activity, or allowing a third party to observe consensual sex without all parties’ knowledge of and consent to that observation;
- Prostituting another member of the College community;
- Sharing, without consent, sexually explicit images of another member of the College community (including sharing images obtained consensually but shared without consent of the person(s) in the image);
- Obtaining, owning, or sharing sexually explicit images of a minor;
- Engaging in watching or otherwise recording a person for one’s own sexual gratification when that person is in a place where they would have a reasonable expectation of privacy;
- Knowingly endangering the health of another person by exposing them to a sexually transmitted infection (STI) or HIV/AIDS without notifying that person in advance;
- Non-consensual exposure of one’s genitals or inducing another to engage in such exposure, or other acts of nudity, when these acts interfere with or limit a person’s ability to participate in or benefit from the College’s programs and activities.
Sexual exploitation is prohibited by this policy.
D. SEXUAL HARASSMENT
Sexual harassment is any unwelcome conduct of a sexual nature. It can take many forms, and includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. (Although sexual assault and sexual exploitation have been addressed specifically, acts in those categories can also be unwelcome conduct of a sexual nature and therefore may constitute sexual harassment and discriminatory harassment.)
Sexual harassment is unlawful and violates this policy if it is sufficiently severe, pervasive, or persistent that it either (1) denies, interferes with, or limits a person’s ability to participate in or benefit from the College’s programs or activities; or (2) creates a learning, working, or living environment that a reasonable person would consider intimidating, hostile, or offensive. Harassment in which submission to conduct of a sexual nature is made either explicitly or implicitly a term or condition of an individual’s education, employment or participation in any program (quid pro quo harassment) is unlawful and is a violation of this policy. A single incident of any form of harassment or other misconduct may create a hostile environment.
E. PROHIBITED AND INAPPROPRIATE CONSENSUAL RELATIONSHIPS
Romantic or sexual relationships that might be appropriate in other contexts may be inappropriate within the College community.
Relationships between students and faculty or staff: Because those who teach are entrusted with guiding students, judging their work, giving grades for courses and papers, and recommending students, instructors are in a particularly delicate relationship of trust and power. This relationship must not be jeopardized by possible doubt of intent, fairness of professional judgment, or the appearance to other students of favoritism. Students must be free from the kind of influence that can interfere with education and development. Similarly, staff members are in a position to influence or affect students’ educational experiences and are charged with the responsibility of assisting or protecting students. It is therefore a violation of this policy for faculty and staff to have romantic or sexual relationships with students.
There are limited circumstances under which it is appropriate for the College to grant exceptions to this prohibition; for example, when the spouse or established partner of a faculty or staff member enrolls as a student. The parties must disclose the relationship to the Title IX Coordinator (or designee thereof) to seek such an exception.
Other relationships: Sensitivity to possible conflicts of interest, or to misuse of power, is necessary in cases of other romantic or sexual relationships in which one partner is in a position of power or authority over another. Such relationships are strongly discouraged. Individuals in such relationships should consult with an appropriate office (Human Resources for faculty and staff; the Dean of Students for students) in order to identify and minimize potential conflicts. Power imbalance can occur in romantic or sexual relationships between faculty and staff, or within the faculty, staff, or student body.
VII. Other Prohibited Conduct
Other harassing conduct violates this policy if it is sufficiently severe, pervasive, or persistent that it either (1) denies, interferes with, or limits a person’s ability to participate in or benefit from the College’s programs or activities; or (2) creates a learning, working, or living environment that a reasonable person would consider intimidating, hostile, or offensive. Such harassment may include:
- violence or threat of violence, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of a member of the Reed community, regardless of the relationship status of the parties;
- bullying, defined as repeated or aggressive behavior likely to intimidate, discomfort, or hurt another member of the Reed community, physically or mentally;
- stalking, defined as repetitive, alarming, or menacing pursuit, harassment, or interference with the peace of mind or perceived safety of members of the community, or the perceived safety of their immediate family members or pets.
Furthermore, the use of Reed College facilities, resources, and/or technology to engage in any behavior that violates this policy is prohibited.
In addition to the explicit prohibitions in this policy, attempts to commit an explicitly prohibited act that take a substantial step towards the commission of the act, in themselves constitute misconduct in violation of this policy.
Retaliation is prohibited by federal and state law and by this policy. No one at the College may reprimand, retaliate, take any adverse action, or discriminate against an individual for having opposed unlawful conduct, initiated a report or complaint, provided information as a witness, or participated in the resolution of a report or complaint regarding potential violations of this policy.
Acts may be retaliatory if they reasonably act as, or could act as, a deterrent to further protected activity, for example, by
- disadvantaging or restricting a person in that person's status as a student, employee, or visitor or in the ability to gain benefits or opportunities available at the College;
- precluding a person from pursuing discrimination claims;
- ostracizing a person who has complained or participated as a witness or otherwise;
- pressuring someone to drop or not support a complaint or to provide false or misleading information; or
- adversely altering the educational or work environment of someone who has complained or participated in the complaint process.
Reporting experienced, observed, or disclosed harassment, or apparent violations of this policy, is strongly encouraged. Reports may be made to the Title IX Coordinator (or designee thereof) or to Community Safety. Reporting is not the same as filing a formal complaint (though, for some purposes, a formal complaint may function both as a report and a formal complaint). This and the following three sections give additional information on reporting an incident, how to proceed with informal or formal complaints, and considerations of amnesty and confidentiality.
All internal reports will receive prompt attention. In response to the nature of the report, the Title IX Coordinator (or designee thereof) will determine the type of investigation to follow. Investigations will not in themselves result in disciplinary action; disciplinary action may arise only through the resolution of formal complaints. Investigations may yield the initiation of a formal complaint by the Title IX Coordinator (or designee). During the investigation of a report, non-disciplinary steps may be taken to protect individuals from harassment, such as separating an alleged harasser from someone alleged to have been harassed. Investigations of reports may yield a response by the College that is non-disciplinary in nature, but designed to remedy or to prevent prohibited harassment.
In addition to assessing individual reports, the Title IX Coordinator (or designee) will review reports in the aggregate in order to discover and address patterns of behavior that create or threaten to create a hostile environment.
A. Internal reporting
All Reed community members (staff, faculty, and students) should help ensure that violations of this policy are promptly reported. Normally, this means reporting any witnessed violations, or violations learned about through the disclosures of others. Anonymous reports are accepted. There may be exceptional cases, such as when two close friends are privately discussing whether a violation has occurred, when it is appropriate to agree to a request for confidentiality and at least temporarily withhold a report. Outside this policy, Reed College may choose to designate certain categories of employees as having specific reporting obligations. See the Title IX Coordinator Resource Page for information on such designations. The staff of the Health and Counseling Center, when they are providing medical or mental health care, are normally exempt from reporting obligations; see section XI.B.
B. Mandatory external reporting of certain forms of abuse
Any employee of Reed College, regardless of position, who has reasonable cause to believe that any child (according to Oregon law, a person under the age of 18) with whom the employee has come in contact has suffered abuse, or that any person with whom the employee has come in contact has abused a child, is required by law to report to the Department of Human Services or law enforcement, unless otherwise exempt under state law (ORS 419B.010). This duty to report is separate and distinct from any procedures that Reed may have for reporting this information internally; an employee does not satisfy the employee's legal obligations by making only an internal report.
Amnesty is intended to support the practice of students reporting incidents of prohibited discriminatory harassment, sexual misconduct, and other violations of this policy, and to protect student safety. Individuals experiencing or witnessing violations of this policy while themselves violating another College policy (for example, policy concerning alcohol and other drug use) are encouraged to report the violations of this policy that they experienced or witnessed. Normally, the College will not impose disciplinary sanctions for the other policy violation(s), provided those violations did not put the health and safety of any other person at risk. (In appropriate circumstances, the College may even grant amnesty for other violations that did put the health and safety of another person at risk.) The Title IX Coordinator (or designee) is responsible for determining whether amnesty applies in any given circumstance.
Reed College recognizes its obligations to adopt, implement and enforce policies and protocols to address discrimination, sexual misconduct and discriminatory harassment, but also understands that its responsibilities are at times inconsistent with the desires of complainants, witnesses, or others to maintain confidentiality and individual privacy. Anonymous reports are accepted.
Members of the community should understand that there can be circumstances in which acts that constitute policy violations are handled externally (in addition to or separate from internal handling) and, as a result, the College may not always have control over confidentiality. For example, acts that constitute policy violations may also lead to criminal proceedings or civil lawsuits, in which affected or knowledgeable individuals may be required to provide information or testimony.
The following are guidelines that summarize how confidentiality will be addressed. In all cases Reed College will comply with applicable law if that law imposes obligations that are different from this policy.
A. General inquiries
Any individual may make a confidential, nonspecific inquiry about policies or procedures to a College official. Inquiries about the application of Title IX may be referred to the Title IX Coordinator or designee thereof.
B. Medical or mental health professionals
Under most circumstances, communications between a person seeking care and a medical or mental health professional are confidential. The medical and mental health licensed professionals at Reed College respect and protect confidential communications from students, faculty, and staff to the extent they are legally able to do so. There may be some situations, however, when these professionals are not permitted to hold information in confidence; for example, the professional may not be permitted to keep confidential information about an immediate and serious threat to any person or property. In addition, if information is provided to a licensed professional outside of the professional relationship, that professional may not be permitted to keep it confidential.
C. Confidentiality and victims of policy violations
The College is sensitive to the interests of alleged victims who do not wish their names or other identifiable information to be disclosed to anyone else. In such circumstances, the College will attempt to respect these wishes, but may be limited in its ability to respond to a report or complaint while doing so. Further, Reed must consider its responsibility to provide a safe and non-discriminatory environment for all students, faculty, staff and visitors, attending to such factors as the seriousness of the alleged conduct, whether there have been other complaints against the same individual, and the extent of any threat to the College community; because of these considerations, it may not always be able to respect the wish for complete confidentiality.
D. Confidentiality and reporters and witnesses
Reed College will endeavor to protect the confidentiality of individuals who provide information about policy violations but must also comply with its obligations and responsibilities under this policy and applicable law. Members of the community should understand that the College has obligations to investigate reports of policy violations and to take reasonable steps to prevent prohibited discrimination, discriminatory harassment, sexual misconduct, or retaliation, and that the desire for confidentiality can conflict with these obligations.
E. Confidentiality and respondents
Reed College will similarly attempt to protect the confidentiality of respondents, again to the extent that it can while complying with its obligations, during and after investigation and formal complaint resolution. Applicable law can limit the protection of the confidentiality of respondents in particular.
XII. Procedures for the Resolution of Complaints
There may be times when informal resolution, either through direct discussion, formal mediation, or with advice obtained from a designated officer of the College may be the appropriate response to a violation of this policy. See the Title IX Coordinator Resource Page for a list of such officers. Students may consider consulting the student Honor Council (firstname.lastname@example.org) for advice on how to proceed with informal resolution or with a formal complaint; general inquiries about these processes are confidential. The Honor Council can also assist with informal resolution. When Honor Council members are acting or approached in their representative capacity, they may have special reporting obligations, and so confidentiality may be limited.
No one is required, however, to participate in mediation or to directly confront those they believe have violated this policy. Individuals may choose to end the informal resolution process at any time and begin the formal complaint process.
In cases of sexual assault, mediation is not an appropriate tool and will not be used by the College to resolve complaints.
Students who are unsure whether they want to make a formal complaint may undertake confidential preliminary discussions of possible violations with a counselor in the Health & Counseling Center. Faculty and staff may similarly undertake confidential discussions with a counselor through the Employee Assistance Program.
Formal complaints may be made to the appropriate body for resolving the complaint, or to the Title IX Coordinator, who will forward the complaint as necessary. The resolution procedure used is based on the status of the respondent:
- Regarding members of the faculty: complaints are received by the Dean of Faculty and handled according to sections F, G, and H of the Rules of Procedure of the Faculty;
- Regarding staff employees: complaints are received by the Director of Human Resources and handled according to the Human Resources Formal Complaint Procedures for Staff;
- Regarding students: complaints are received by the Student Judicial Board or by the Sexual Misconduct Board and are handled according to the Judicial Board Code.
The above procedures supplement, and do not replace, other remedies for acts which constitute violations of this policy. Students and employees have the option at all times to file a criminal complaint with law enforcement or to seek a civil remedy, in addition to or in place of using College’s procedures.
Individuals also always have the right to file a formal complaint with the United States Department of Education (for violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990, and the Age Discrimination Act of 1975):
U.S. Department of Education
Office for Civil Rights
Lyndon Baines Johnson Department of Education Bldg
400 Maryland Avenue, SW
Washington, DC 20202-1100
FAX: 202-453-6012; TDD: 800-877-8339
Office for Civil Rights
U.S. Department of Education
915 Second Avenue Room 3310
Seattle, WA 98174-1099
FAX: 206-607-1601; TDD: 800-877-8339
Individuals with complaints of a violation of this policy in the context of employment (Title VII of the Civil Rights Act of 1964, The Americans with Disabilities Act of 1990, Age Discrimination in Employment Act, or the Equal Pay Act) may also file a complaint with the Equal Employment Opportunity Commission (EEOC):
Equal Employment Opportunity Commission
Seattle Field Office
Federal Office Building
909 First Avenue
Seattle, WA 98104-1061
Phone: (800) 669-4000
TTY: (800) 669-6820
(last modified: December 5, 2013)