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Board of Trustees Seal

Discrimination, Sexual Misconduct and Retaliation

Diversity and Inclusion


PDF Version: BOT Discrimination, Sexual Misconduct and Retaliation Policy


Contents

  1. Introduction
  2. Roles and Responsibilities
  3. Policy Statement
  4. Related Information
  5. Policy History

I. Introduction

  1. Authority: C.R.S. § 23-54-102, et seq. (2019) authorizes the Trustees of Metropolitan State University of Denver (MSU Denver) to establish rules and regulations to govern and operate the University and its programs. The Trustees retain authority to approve, interpret, and administer policies pertaining to University governance. The Trustees authorize the President of MSU Denver to approve, administer, and interpret policies pertaining to University operations.

  2. Purpose: MSU Denver community members should be able to live, study, and work in an environment free from unlawful discrimination and sexual misconduct. This policy is promulgated under: 
    1. Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681, et seq., and its implementing regulations;
    2. 34 C.F.R. Part 106; Title IV of the Civil Rights Act of 1964 (42 U.S.C. § 2000c);
    3. The Violence Against Women Reauthorization Act (“VAWA”);
    4. The Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (“Clery Act”); 
    5. Title VII of the Civil Rights Act of 1964 (“Title VII”);
    6. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq. and its implementing regulations at 34 C.F.R. Part 100; and
    7. Colo. Rev. Stat. § 24-34-402.

  3. Scope: This policy applies to all areas of MSU Denver’s operations and programs, and to all board members, administrators, students, faculty, staff, volunteers, consultants, vendors, contractors, sub-contractors, guests, visitors, and others who have an association with, are doing business with, and/or have a presence at MSU Denver or any of its facilities. The Policy applies to conduct that takes place at MSU Denver and at any of its sponsored events. The Policy may apply off-campus and to electronic conduct, online and elsewhere, if it is determined that the off-campus conduct affects a substantial interest of MSU Denver. A substantial MSU Denver interest includes, but is not limited to conduct that: 
    1. Occurs in the context of an educational program or activity of MSU Denver;
    2. Has continuing adverse effects on campus, including creating possible risk to the greater MSU Denver community;
    3. Has continuing adverse effects in an off-campus program or activity, including but not limited to study abroad, Detroit Institute of Music Education, Denver (“DIME”), or research or internship program. 
    4. Constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state or federal law;
    5. Creates a situation where it appears that the responding party may present a danger or threat to the health or safety of self or others;
    6. Creates a situation that significantly impinges upon the rights, property or achievements of self or others or significantly breaches the peace and/or causes social disorder; and/or
    7. A situation that is detrimental to the educational interests of MSU Denver. 
    8. If an alleged violation of the Policy might impact the greater MSU Denver community and/or is particularly egregious, the Policy and related procedures may be followed even in cases where the impacted community member does not want MSU Denver to respond to the complaint.

II. Roles and Responsibilities

  1. Responsible Executive: Chief Executive Officer

  2. Responsible Administrator: Chief Equal Opportunity Officer

  3. Responsible Office: Office of Equal Opportunity

  4. Policy Contact: Office of Equal Opportunity, 303-615-0036

Raúl M. Sánchez, J.D.

Executive Director, Office of Equal Opportunity

Title IX Coordinator

Jordan Student Success Building Suite 306

Phone: 303-615-0036   Email: rsanch64@msudenver.edu


III. Policy Statement

Metropolitan State University of Denver (“MSU Denver”) is committed to maintaining work, study, and recreational environments for all students, employees, and visitors free from discrimination and harassment. Therefore, in accordance with applicable local, state, and federal laws, the University does not discriminate and prohibits discrimination and harassment in all of its programs and activities, including but not limited to academics, extracurricular activities, employment, promotion, admissions, and access to all academic, career and technical programs on the basis of the following protected classes and/or characteristics:

  1. Race;
  2. Creed;
  3. Color;
  4. Sex;
  5. Gender;
  6. Gender Identity or Expression;
  7. Pregnancy;
  8. National Origin;
  9. Nationality;
  10. Age;
  11. Ancestry;
  12. Marital, Domestic Partnership, or Civil Union Status;
  13. Religion;
  14. Affectional or Sexual Orientation;
  15. Atypical Hereditary Cellular or Blood Trait;
  16. Genetic Information;
  17. Liability for Military Service;
  18. Protected Veteran Status; 
  19. Mental or Physical Disability, including perceived disability, AIDS and HIV-related illnesses;
  20. Harassment (related to any of the forgoing categories);
  21. Retaliation for filing a complaint of, or participating in an investigation of discrimination and harassment; and
  22. Any other category protected by law.

This policy shall be known as the Policy Prohibiting Discrimination, Sexual Misconduct, and Retaliation (the Policy). The Policy prohibits the forms of discrimination described above, as well as all forms of sexual misconduct, which is discrimination based on gender or sex, and includes sexual assault, sexual abuse, sexual harassment, other forms of nonconsensual sexual conduct, stalking, interpersonal violence, including domestic and dating violence, and sexual exploitation.

This policy prohibits discriminatory harassment, a form of discrimination which is improper conduct toward a particular individual, individuals, or groups on the basis of one or more of the protected classes indicated above. Discriminatory harassment occurs when behavior is sufficiently severe, persistent, or pervasive that it has the purpose or effect of:

  1. Creating an intimidating, hostile, or offensive environment; or
  2. Unreasonably interfering with work, academic performance, personal security, or participation in any University activity.

Retaliation against anyone who files a complaint or participates in an investigation related to the Policy also is strictly prohibited. Reports of retaliation will be addressed as separate potential violations of the Policy.

MSU Denver will take immediate and appropriate action to investigate allegations of discrimination, harassment, and retaliation.  If, after an adequate, reliable and impartial investigation of those complaints there is a finding that MSU Denver’s policy has been violated, MSU Denver will impose appropriate discipline on the individual found in violation.

Comprehensive procedures shall be established by the Equal Opportunity Office and Title IX Coordinator to implement this Policy. The procedures must be interpreted in conjunction with this Policy. Any inconsistency between this Policy and the procedures will be resolved in favor of the Policy. MSU Denver’s procedures can be found on the Equal Opportunity Office website.

  1. Sexual Harassment

    The Policy prohibits sexual harassment, a form of discrimination based on sex and/or gender. Sexual harassment encompasses quid pro quo sexual harassment, gender-based harassment, hostile environment sexual harassment, and sexual misconduct. Sexual harassment also covers unwelcome verbal or physical conduct of a sexual nature.

    1. Types of Sexual Harassment 
      1. Quid pro quo sexual harassment occurs when:
        1. Submission to unwelcome verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of any individual's employment or education; or
        2. Submission to or rejection of unwelcome verbal or physical conduct of a sexual nature by an individual is used as the basis for employment or educational decisions affecting the individual.
      2. Gender-based harassment is a form of sexual harassment and is defined as harassment of a non-sexual nature that occurs because of a person's sex and/or gender. It also includes harassment based on a person's nonconformity with sex and/or gender stereotypes.

    2. Offenses that Constitute Sexual Harassment
      Sexual harassment is subject to discipline when it creates a hostile environment, meaning the behavior is sufficiently severe, persistent, or pervasive to unreasonably interfere with an individual's work or educational performance. Examples include, but are not limited to, the following:
      1. Physical assault;
      2. Direct or implied threats that submission to sexual advances will be a condition of employment, work status, promotion, grades, work references, or letters of recommendation; and
      3. Sexual behavior that is unwelcome. Such behavior may include, but is not limited to:
        1. Comments of a sexual nature;
        2. Sexually explicit statements, questions, jokes, or anecdotes;
        3. Unnecessary or undesirable physical contact;
        4. Unwanted, offensive, and/or uninvited comments about another's physical appearance;
        5. Display of pictures with sexual content;
        6. Persistent, unwanted attempts to change a professional relationship to an amorous relationship;
        7. Subtle propositions for sexual activity or direct propositions of a sexual nature; and 
        8. Uninvited letters, emails, telephone calls, text messages, instant messages or other correspondence or writings referring to or depicting sexual activities.
      4. Other offenses that may constitute sexual harassment when based on sex and/or gender include, but are not limited to:
        1. Threatening or causing physical harm, extreme verbal abuse, or other conduct that threatens or endangers the health or safety of any person.
        2. Intimidation, which is defined as implied threats or acts that cause reasonable fear of harm of another
        3. Hazing, as defined in the Student Code of Conduct.
        4. Bullying, as defined in the Student Code of Conduct.
        5. Workplace violence, which is defined as any acts or threats of physical harm, including intimidation, harassment, and/or coercion, which involve or affect the University or any of its employees, which occur on University property or are related to the workplace and are prohibited.
        6. Intimate partner violence, which includes violence or abusive behavior within an intimate partner relationship. Intimate partner violence may also be referred to as domestic violence or dating violence. It can be physical, sexual, emotional, verbal, economic, or psychological in nature and may include actions or threats of actions that influence or harm an intimate partner.
        7. Stalking, which refers to purposeful conduct directed at a specific person that would cause a reasonable person to fear bodily injury or death to themselves and/or a family member and knowingly, recklessly, or negligently places such person in reasonable fear of bodily injury or death to himself or family member, and includes, but is not limited to, conduct occurring in person, electronically, or through a third party.

  2. Sexual Misconduct
     
    Sexual misconduct is a form of sexual harassment and is prohibited by the Policy. It is an egregious form of sex discrimination/sexual harassment. A number of acts are regarded as Sexual Misconduct including, but not limited to, nonconsensual sexual contact (including sexual intercourse), sexual assault, stalking on the basis of sex and/or gender, domestic violence involving sex, gender or sexual behavior, dating violence, and sexual exploitation.

    1. Consent
      Consent to any sexual activity must be clear, knowing, and voluntary. Anything less is equivalent to a "no." Clear, knowing, and voluntary consent to sexual activity requires that, at the time of the act, actual words or conduct demonstrate clear permission regarding willingness to engage in sexual activity and the conditions of such activity. Silence or passivity is not consent. Even if words or conduct alone seem to imply consent, sexual activity is nonconsensual when:
      1. Force is used.
        1. Force is the use of physical violence, physical force, threat, or intimidation to overcome resistance or gain consent to sexual activity. 
        2. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to obtain consent from another. When an individual makes it clear through words or actions that they do not want to engage in sexual contact, they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point may be coercive. Other examples of coercion may include using blackmail or extortion to overcome resistance or gain consent to sexual activity.
      2. The person is incapacitated.
        1. A person cannot consent if the person is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. A person violates this policy if they engage in sexual activity with someone they know to be, or should have known to be, physically or mentally incapacitated.
        2. Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed 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 a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or from the consumption of incapacitating drugs.
        3. It is not an excuse that the responding party was intoxicated and, therefore, did not realize the incapacity of the reporting party. The question of whether the responding party should have known of the incapacity is an objective question about what a reasonable person, exercising sober, good judgment, would have known, in the same or similar circumstances.
        4. In Colorado, a minor (meaning a person under the age of 16 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 16 years old may be a crime, and a potential violation of the Policy, even if the minor welcomed the sexual activity.

    2. Nonconsensual Sexual Contact is any intentional sexual touching, however slight, with any object or body part, by one person against another person's intimate parts (or clothing covering any of those areas), or by causing another person to touch his or her own or another person's intimate body parts without consent and/or by force. Sexual contact also can include any intentional bodily contact in a sexual manner.

    3. Nonconsensual Sexual Intercourse is any sexual intercourse, however slight, with any object by a person upon another person that is without consent and/or by force. Sexual intercourse vaginal or anal penetration by a penis, tongue, finger, or object, or oral copulation (mouth to genital contact) no matter how slight the penetration or contact.

    4. Sexual Exploitation occurs when a person takes:
      1. Non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses explained above. Examples of Sexual Exploitation may include, but are not limited to:
        1. Causing or attempting to cause the incapacitation of another person to gain sexual advantage over such other person (e.g., surreptitiously giving someone an incapacitating drug such as Rohypnol;
        2. Repeatedly providing a person with alcohol when they are visibly intoxicated, then attempting or engaging in sexual activity with that person);
        3. Invading another person's sexual privacy;
        4. Prostituting another person;
        5. Engaging in voyeurism. A person commits voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, records, or films another person, without that person's knowledge and consent, while the person being viewed, photographed, recorded, or filmed is in a place where the individual has a reasonable expectation of privacy;
        6. Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease or infection;
        7. Exposing one's intimate parts in nonconsensual circumstances; and
        8. Sexually based stalking and/or bullying.

    5. Voluntary use of alcohol or other drugs is neither an excuse, nor a valid defense to a violation of the Sexual Misconduct policy. The question of whether the responding party should have known of the incapacity is an objective question about what a reasonable person, exercising sober, good judgment, would have known, in the same or similar circumstances.

    6. Prohibition on Retaliation: Retaliation against a person who reports a potential violation under this policy, assists someone with a report of a violation, or participates in any manner in an investigation or in the resolution of a complaint made under this policy is strictly prohibited and will not be tolerated. Retaliation includes but is not limited to threats, intimidation, reprisals and/or adverse actions related to an individual’s employment or education. MSU Denver will take appropriate steps to ensure that a person who in good faith reports, complains about, or participates in an investigation pursuant to this Policy will not be subjected to prohibited retaliation. Individuals who believe they are experiencing retaliation are strongly encouraged to file a complaint with the Equal Opportunity Office and/or Title IX Coordinator or designee.

    7. Complaints: Individuals, including students, employees, and other third parties within the MSU Denver community, who witness or are subjected to any form of prohibited conduct should report directly to the Title IX Coordinator or designee. Complaints can also be made to any responsible employee.
      1. Responsible employees who witness or receive information regarding an allegation of sexual harassment, sexual misconduct, or interpersonal violence shall report all known details to the Title IX Coordinator or designee. An exception exists, for Responsible Employee reporting only when the victim is a Responsible Employee. In this circumstance, the victim retains all rights afforded to the victim and cannot be investigated for failure to report as a Responsible Employee in this limited circumstance.
      2. A Responsible Employee is an employee who has the authority to take action to redress discrimination, harassment, violence, or misconduct or is perceived as being in a position of authority to do so and has the duty to report disclosures of discrimination and sexual misconduct.  Additionally, Responsible Employees may be specifically designated as having the duty to report by the Title IX Coordinator.
      3. All other members of the MSU Denver community are strongly encouraged to report to the Title IX Coordinator or designee any information about sexual harassment, sexual misconduct, or interpersonal violence known to the individual. Sexual harassment, sexual misconduct, and/or interpersonal violence should be reported as soon after the incident as possible; however, there is no time limit on reporting. In circumstances when the complaint includes an allegation that a crime was committed, MSU Denver may be required to report the complaint to the police, keeping the name of the impacted party confidential. An impacted party may choose to report their complaint to both MSU Denver (and whether to pursue resolution under these procedures) and to law enforcement (and whether to pursue criminal charges). Both options may be pursued simultaneously or separately.
      4. MSU Denver has an obligation to maintain an environment free of sex discrimination, thus Responsible Employees have mandatory reporting and response obligations and may not be able to honor a Complainant’s request for confidentiality. In the event confidentiality cannot be maintained, the University will share information only as necessary and only with people who need to know to fulfill the purposes of this policy and applicable law, such as investigators, witnesses, administrators, and the Respondent. MSU Denver will comply with the Family Educational Rights and Privacy Act (FERPA) and other confidentiality laws as they apply to Title IX investigations.
      5. Reports of alleged violation of this Policy shall be made in good faith. Reports found to be groundless, false, or in retaliation against an individual may result in disciplinary action against the reporter.  This Policy prohibits retaliation in all its forms. Allegations of false reporting, if made in retaliation against the Respondent, may be separately investigated as a violation of the Policy.

    8. Investigation
      The Title IX Coordinator receives all complaints of alleged prohibited conduct.  In order to determine how to proceed, the Title IX Coordinator or designee will conduct a preliminary inquiry into the facts.  In addition, the Title IX Coordinator or designee may implement interim measures at this time.  Interim measures are meant to protect the MSU Denver community or individual member(s) of the MSU Denver community.
      1. In some circumstances, excluding sexual assault or interpersonal violence, there may be an opportunity for the parties to engage in an optional informal resolution process. At any stage of this informal process, however, a party may withdraw consent to participate, and a formal investigation may be initiated.
      2. If a formal investigation is warranted, the Parties shall receive a notice of investigation. This notice will provide details of the alleged conduct, any interim measures implemented, identities of the Complainant, Respondent, and the investigator assigned to the case, the standard of proof to be utilized, and a request for the Respondent to contact the investigator within a prescribed period of time. The Parties may choose not to participate in the investigation; however, failure to participate will not prevent the investigation from moving forward to a decision as to whether or not the policy was violated and resulting sanctions.
      3. Each Party may have a single advisor of such Party’s choice present to participate during any stage of investigation under the Policy including any related meeting, investigation, interview, or hearing, held pursuant to the Policy. The advisor cannot be a witness to the underlying incident, cannot advise more than one Party, and cannot advocate on behalf of the Party.
      4. Each Party can provide names of potential witnesses, evidence, and other documentation for the investigator who will ultimately determine what is relevant to the investigation.

    9. Training: The Title IX Coordinator will oversee ongoing training programs on the campus specifically designed to increase awareness of the issues with the ultimate goal of preventing discrimination, sexual misconduct, interpersonal violence and retaliation within the MSU Denver community.  The trainings will be comprehensive and specifically designed for the diverse audience of employees and students. Training will include definitions of prohibited conduct, bystander intervention strategies, reporting options and obligations, and resources available on campus.

IV. Related Information

  1. Procedures https://msudenver.edu/eoo/procedures/
  2. Dean of Students Office, https://msudenver.edu/deanofstudents/
  3. File a Report with the Dean of Students Office, https://msudenver.edu/deanofstudents/studentconduct/reportanincident/

V. Policy History

  1. Approved by: Board of Trustees

  2. Effective: July 1, 2019

  3. Revised: This policy supersedes sections 2.1 Antidiscrimination and 3.5 Harassment, Sexual Harassment, and Violence of the MSCD Trustees Manual, 2007.

  4. Review: This policy will be reviewed every five years or as deemed necessary by University leadership.

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