Institutional Policy Prohibiting Discrimination, Harassment, and Sexual Violence 2020

2.1.1 Institutional Policy Prohibiting Discrimination, Harassment, and Sexual  Violence

The University is committed to upholding standards that promote respect and human dignity in an environment fostering learning and professionalism. It is the policy of the University to maintain an educational and work environment free from all types of unlawful discrimination and harassment, an open environment which values and protects individual dignity and the integrity of human relationships. 

The educational process at the University is based on mutual trust, freedom of inquiry, freedom of expression, and the absence of intimidation and exploitation. Such an atmosphere of respect and regard for individual dignity among members of the academic community is essential if the University is to function as a center of academic freedom and intellectual advancement. In addition, the University has a compelling interest in ensuring the provision of an environment in which learning and work may thrive. Such an environment requires free and unfettered discussion of the widest possible nature, one which encourages expression of all points of view. The University recognizes that the academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material. Assertions regarding any of the characteristics listed above, however, should be directly related to the exchange of ideas, ideologies, or philosophies. Any such assertions in the teaching context that are persistent, pervasive, and not germane to the subject matter may constitute sexual or another form of unlawful harassment and will not be tolerated.

Caldwell University, as a Catholic institution, has a tradition of respecting the dignity and rights of the individual; the University encourages its students and employees to be responsive to community and global concerns and to act with a sense of responsibility to self and others. In realizing this goal, every member of the campus community is responsible for ensuring that incidents of harassment do not occur and, if they occur, do not go unreported. Unlawful harassment is offensive to students, faculty, staff members, and employees of the University. Therefore, the University community will not tolerate unlawful harassment in any form. 

The Caldwell University Coordinator for Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Titles VI and VII of the Civil Rights Act of 1964 and other laws and regulations prohibiting harassment and discrimination is:

 

Elizabeth Elices

Compliance and Risk Officer, 

120 Bloomfield Avenue, 

Caldwell, NJ 07006 

973.618.3429 Fax 973.618.3358 

(Title IX Coordinator)

 

Michelle Stauss

Caldwell University

Assistant Vice President, Human Resources

120 Bloomfield Avenue

Caldwell, NJ 07006

973.618.3555 Fax 973.618.3358

(Deputy Title IX Coordinator)

 

Timothy Kessler-Cleary

Caldwell University

Assistant Dean, Student Engagement and Retention

120 Bloomfield Avenue

Caldwell, NJ 07006

973.618.3484

(Deputy Title IX Coordinator)

 

Questions about this non-discrimination policy and any complaints of harassment or discrimination shall be directed to a Title IX Coordinator. Students with questions or complaints related to disabilities, including the Americans with Disabilities Act, should refer to Volume VI of the Caldwell University Policy Manual for more information. Confidential services for students may be available through the Wellness Center. Please contact the Wellness Center directly for information about their confidentiality policies. Requests for confidentiality in all other reporting contexts, including anonymous reporting, will be considered on a case-by-case basis. 

Policy Prohibiting Discrimination

Caldwell University does not discriminate on the basis of sex (including pregnancy and sexual harassment), race, color, age, national origin, disability, handicap, religion, status as a veteran, affectional or sexual orientation, gender identity or expression, marital status, domestic partnership or civil union status, or on the basis of any other characteristic protected by applicable federal, state or local law in employment or in the administration of its educational programs and policies, admissions policies, scholarship and loan programs, or athletic and other school-administered programs. Furthermore, Caldwell University prohibits retaliation against anyone who opposes unlawful discrimination, assists or participates in an investigation of a complaint of discrimination, or exercises that person’s rights under any law that forbids employment discrimination.

Policy Prohibiting Harassment

Caldwell University prohibits harassment of or by any employee(s) or student(s) on the basis of sex (including pregnancy and sexual harassment), race, color, age, national origin, disability, handicap, religion, status as a veteran, affectional or sexual orientation, gender identity or expression, marital status, domestic partnership or civil union status, or on the basis of any other such characteristic protected by applicable federal, state or local law. Harassment consists of unwelcome conduct, whether verbal, physical, or visual, in any form whether in person or through any medium, that is based on a person’s protected status. Examples of harassing conduct include but are not limited to stalking, epithets, slurs, jokes, teasing, kidding, bullying, negative stereotyping, threatening or hostile acts that relate to an individual’s protected status, and physical acts of aggression, assault or violence, regardless of whether these acts are being or have been investigated as criminal offenses by a law enforcement agency. Any written or graphic material, including any electronically transmitted or displayed material that likewise denigrates or shows hostility toward members of these protected groups, may also be considered harassment (keeping in mind the unique nature of the academic setting as outlined in section 2.1.2). Any act of domestic or dating violence is consideredin considered a form of harassment and is prohibited. A person does not have to be the direct target of harassment to make a complaint.

Caldwell will not tolerate harassing conduct that

  1. Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
  2. Has the purpose or effect of unreasonably interfering with an individual’s work environment or performance;
  3. Adversely affects tangible employment benefits;
  4. Has the purpose or effect of creating an intimidating, hostile, or offensive study or learning environment;
  5. Has the purpose or effect of unreasonably interfering with an individual’s study or learning experience; or
  6. Adversely affects an individual’s tangible educational benefits.

Sexual Harassment

Sexual harassment deserves special mention. Sexual harassment occurs in a variety of circumstances that tend to share a common element, which is the introduction of sexual conduct or comments into the work or educational setting. Often, sexual harassment involves relationships of unequal power and contains elements of coercion, as when compliance with requests for sexual favors or sexual attention becomes a condition, explicitly or implicitly, of employment, work, education, study, or benefits. Sexual harassment may also involve relationships among equals, as when repeated sexual advances or demeaning verbal or physical behavior have a detrimental effect on a person’s ability to study or work at the University.

Sexual harassment is unwelcome, gender-based verbal or physical conduct that is sufficiently severe, persistent or pervasive that it has the effect of unreasonably interfering with, denying or limiting someone’s ability to participate in or benefit from the University’s educational program and/or activities or work environment, and is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

Sexual harassment involves any one or more of unwelcome sexual advances, requests for sexual favors, and other visual, verbal or physical conduct based on sex when

  1. Such conduct has the purpose or effect of creating an intimidating, hostile or offensive working or learning environment or unreasonably interfering with an individual’s work or academic performance;
  2. Submission to such conduct is an explicit or implicit term or condition of an individual’s employment or academic activities; 
  3. Submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting that individual; or
  4. Such conduct unreasonably interferes with/limits one’s ability to participate in or benefit from an educational program or activity.

Sexual harassment may include, but is not limited to, unwanted sexual advances; explicit sexual propositions; displaying sexually suggestive objects, pictures or materials; sexual innuendo; sexually-oriented verbal abuse; sexually suggestive comments; unwanted contact such as touching, patting, stroking, pinching, or brushing against another’s body; sexually oriented kidding, teasing or practical jokes; jokes about gender specific traits; foul or obscene gestures or language; stalking, gender-based bullying, and physical acts of sexual aggression, assault, or violence, regardless of whether these acts are being, or have been, investigated as criminal offenses by a law enforcement agency (such as rape, sexual assault or battery, and sexual motivated stalking) made against a person’s will or where a person is incapable of giving consent due to the victim’s age, intellectual disability, or use of drugs or alcohol.  Sexual harassment involves unwelcome, gender-based verbal or physical conduct toward an individual which, although not motivated by sexual desire, would not have occurred except for that person’s gender.

Sexual Exploitation

Sexual Exploitation is purposefully taking sexual advantage of another person without consent. It may involve the use of one’s own or another individual’s nudity or sexuality. Examples of Sexual Exploitation include, but are not limited to:

  • Voyeurism (such as watching or taking pictures, videos, or audio recordings of another person in a state of undress or of another person engaging in a sexual act without the consent of all parties);
  • Disseminating, streaming, or posting pictures or video of another in a state of undress or of a sexual nature without the person’s consent;
  • Exposing one’s genitals to another person without consent;
  • Prostituting another individual;
  • Knowingly exposing another individual to a sexually transmitted disease; or
  • Knowingly assisting another person with committing an act of sexual exploitation.

 

Title IX complaints

Sexual harassment that includes the following elements will be treated as a potential Title IX violation, and all investigation and/or resolution will follow additional procedural requirements as described in the relevant sections of this policy.

  1. The conduct is alleged to have occurred on or after August 14, 2020; and
  2. A formal written complaint has been provided to the Title IX Coordinator; and 
  3. The alleged conduct occurred within the United States; and
  4. The alleged conduct occurred on campus or within a location, event, or circumstances over which Caldwell University exercised substantial control over both the respondent and the context in which the alleged sexual harassment occurred or in a building owned or controlled by a recognized student organization; and
  5. The alleged conduct involves one or more of the following claims:

(i) An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);  or

(ii) Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Caldwell University’s education program or activity; or 

(iii) Sexual assault, dating violence, domestic violence, or stalking as defined in the Clery Act and the Violence Against Woman Act.

If any one of these elements are not met, the Title IX Coordinator will notify the parties that the formal complaint is being dismissed for the purposes of Title IX. Each party may appeal this dismissal. Notification will be sent simultaneously to the parties through their institutional email accounts. 

Complainants are only able to file a Formal Title IX Complaint under this policy if they are currently participating in, or attempting to participate in, the education programs or activities of Caldwell University, including as an employee. To the extent that alleged harassment falls outside these Title IX requirements, or misconduct falling outside Title IX and/or the Discrimination and Harassment Policy is discovered in the course of investigating the alleged violation(s), Caldwell retains authority to investigate and adjudicate the allegations under the relevant policies and procedures defined within the Caldwell University Policy Manuals and C-Book. Note that behavior that does not violate these TItle IX definitions may still violate other portions of the Caldwell Discrimination and Harassment Policy. Caldwell will respect a complainant’s wishes not to pursue a formal complaint except when, in light of the known circumstances, the Title IX Coordinator determines a Formal Complaint is necessary. Caldwell University will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this policy.

Consent 

Consent is clear, knowing, and voluntary. It is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity. Consent to any one form of sexual activity cannot automatically imply consent to any other form of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Incapacity invalidates consent. 

Non-consensual sexual contact is any intentional sexual touching, however slight, with any object or body part, by a person upon a person, that is without consent and/or by force. Sexual contact is intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifices. 

Sexual assault, also called non-consensual sexual intercourse, is any sexual intercourse, however slight, with any object or body part, by a person upon a person, that is without consent and/or by force. Intercourse includes vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation, no matter how slight the penetration or contact. This can include non-consensual oral sex.

Definitions related to consent:

“Incapacitation:” An individual who is incapacitated lacks the ability to make informed judgments and cannot consent to sexual contact. Incapacitation is the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Mentally helpless means a person is rendered temporarily incapable of appraising or controlling one’s own conduct. Physically helpless means a person is physically unable to verbally or otherwise communicate consent or unwillingness to an act. Where alcohol or other drugs are involved, incapacitation is a state beyond impairment or intoxication. Where alcohol or other drugs are involved, evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects a person’s: decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person. Evaluating incapacitation also requires an assessment of whether a person should have been aware of the complainant’s incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a reasonable person. An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapable of making a rational, reasonable decision about whether to engage in sexual activity is in violation of this policy.

“Coercion” can include a wide range of behaviors, including intimidation, manipulation, implied threats, or blackmail which places a person in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include threatening to “out” someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity. Coercing an individual into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity.

“Force” is the use or threat of physical violence, intimidation, or coercion to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. Such action would cause a person to fear for their physical or psychological well-being. For the use of force to be demonstrated, there is no requirement that a complainant resists the sexual advance or request. However, resistance by the complainant will be viewed as a clear demonstration of non-consent.

Domestic Violence, Dating Violence, and Stalking

Domestic violence, dating violence, and stalking are violations of the Institutional Policy Prohibiting Discrimination and Harassment. Pursuant to the Violence Against Women Reauthorization Act of 2013, domestic violence “includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under [New Jersey laws], or by any other person against an adult or youth victim who is protected from that persons’ acts under the domestic or family violence laws of [New Jersey].” Dating violence is violence committed by someone “(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors:

  1. The length of the relationship.
  2. The type of relationship.
  3. The frequency of interaction between the persons involved in the relationship.

Stalking is “a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for his or her safety or the safety of others, or (B) suffer substantial emotional distress.” Please remember that state or federal laws may have changed since the publication of this policy. NJ criminal law, N.J.S.A. 2C:12-10b, defines stalking as a crime where someone “purposely and repeatedly follows another person and engages in a course of conduct or makes a credible threat with the intent of annoying or placing that person in reasonable fear of death or bodily injury.” Legal definitions related to domestic violence are part of the New Jersey Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.

The Clery Act and Safety Warnings

Certain campus officials have a duty to report certain crimes, including sexual misconduct, domestic and dating violence, and stalking for federal statistical reporting purposes (Clery Act). All personally identifiable information is kept confidential, but statistical information must be passed along to campus law enforcement regarding the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses are given) for publication in the annual Campus Security Report. This report helps to provide the community with a clear picture of the extent and nature of campus crime to ensure greater community safety. Mandated federal reporters include student/conduct affairs, campus safety officials, local police, coaches, athletic directors, residence life staff, student activities staff, human resources staff, advisors to student organizations and any other official with significant responsibility for student and campus activities. The information to be shared includes the date, the location of the incident (using Clery location categories) and the Clery crime category. This reporting protects the identity of the victim and may be done anonymously. Information shared publicly pursuant to Clery Act requirements will not include the name of the complainant or reporting individual.

University administrators must issue immediate timely warnings for incidents reported to them that are determined to pose a substantial threat of bodily harm or danger to members of the campus community. The University will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the danger. The reporters for timely warning purposes are exactly the same as detailed at the end of the above paragraph.

In situations where an arrest is made by law enforcement officials or a court issues a protective order (also known as a “restraining order”), the University will work in conjunction with law enforcement to support any relevant court mandates which affect the campus or accused’s student status. However, student conduct proceedings may be carried out prior to, simultaneously with, or following civil or criminal proceedings off campus at the discretion of the University. Determinations or sanctions will not be subject to change because criminal charges arising out of the same facts giving rise to violation of University rules are later dismissed, reduced, or resolved in favor of or against the criminal law defendant. 

Bias Incidents

A bias incident is conduct expressing bias towards an individual or group of individuals based on the basis of sex (including pregnancy), race, color, age, national origin, disability, handicap, religion, status as a veteran, affectional or sexual orientation, gender identity or expression, marital status, domestic partnership or civil union status, or on the basis of any other characteristic protected by applicable federal, state or local law. This does not include speech protected by federal or state law or by the principles of academic freedom. Some bias incidents may also be considered a form of prohibited discrimination and/or harassment. Individuals who are aware of or suspect a bias incident should contact the Bias Response Team or a Title IX Coordinator.

Reporting Procedures

All employees and students have the responsibility to ensure that Caldwell University’s non-discrimination and anti-harassment policies are effective. All University employees, unless designated as a confidential resource, are considered mandatory reporters. Any University employee who experiences, observes, hears or otherwise witnesses unlawful harassment or discrimination or who receives a report of unlawful harassment or discrimination by (1) University employees, (2) University students, or (3) third parties, in accordance with applicable law governing liability for third parties, must immediately notify a Coordinator identified in 2.1.2.1 above unless prohibited from doing so by law. Students who wish to report unlawful discrimination or harassment can also contact a Coordinator. If a report of discrimination or harassment alleges involvement of the Coordinator, then the report of discrimination or harassment may be made to:

 

Sheila N. O’Rourke

Caldwell University

Vice President for Institutional Effectiveness

120 Bloomfield Avenue

Caldwell, NJ 07006

973.618.3342 Fax 973.618.3358

www.caldwell.edu

No employee or student is required to confront the alleged harasser or report their concern to the alleged harasser directly. 

Individuals who believe they have been the survivor of sexual assault, domestic or dating violence, stalking, or feel that their safety may be in danger have the right to contact both Campus Security and local law enforcement. Survivors have the option to be assisted by campus authorities in notifying local law enforcement or may decline to notify such authorities. Both on and off campus resources, including those listed in Sections 2.1.2.12 through 2.1.2.14, can provide information regarding the availability of protective orders such as court-issued restraining orders. Individuals should be aware that preservation of evidence may be an important factor in obtaining protective orders and/or proving the offense occurred. Individuals who believe they have been the survivor of a sexual assault are advised not to shower, bathe, eat, drink, change clothing, or brush their teeth before seeking medical attention. Doing so could destroy evidence. 

  • Amnesty for Students Who Report Sexual Misconduct:

The University encourages reporting and seeks to remove any barriers to reporting by making the procedures for reporting transparent and straightforward. The University recognizes that an individual who has been drinking or using drugs at the time of the incident may be hesitant to make a report or provide information in connection with an investigation under this Policy because of potential disciplinary action related to their own conduct. When information is uncovered through the Title IX investigative process that involves alcohol or drug usage in violation of the student Code of Conduct, this information generally will not be used to pursue any disciplinary action for alcohol or drug use, provided that any such violations did not and/or do not place the health or safety of any other person at risk. The University may, however, require educational discussion or pursue other educational remedies regarding alcohol or other drugs.

  •  Optional Informal Resolution Process  

The Coordinator will determine whether the complaint is suitable and appropriate for potential resolution through an informal process.  If both parties wish, they may request to first pursue an informal resolution of their complaint. If the subject matter of the informal resolution process includes a Title IX complaint, both parties must first provide voluntary informed, written consent prior to the start of the informal resolution process. Both parties have the right to withdraw from an informal resolution process at any time prior to agreeing to a resolution. Informal resolution is a form of alternative dispute resolution. It may include mediation or employing other resources on or off campus to resolve the situation. Complaints alleging certain actions are not eligible for informal resolution, such as allegations of violence, patterns of behavior, undue influence of coercion, or retaliatory behavior.  Informal resolution is not available if a student files a complaint alleging sexual harassment by an employee. If the dispute is not resolved, then formal procedures set forth in 2.1.2.6 will be followed. Records of all informal resolution process attempts, whether completed or incomplete, will be maintained for seven (7) years. These records cannot be expunged. 

  • Interim Safety Measures 

In terms of a Title IX complaint, the following interim measures will be available equitably to both students and employees and may be imposed immediately hereunder notwithstanding any provision to the contrary in any other policy including Volume IV. In some circumstances, interim safety measures may be taken to protect the physical safety of students or employees pending the final outcome of the investigation and resolution process. This includes no-contact orders and removal from campus. In circumstances not involving a Title IX complaint, other interim measures may also be available. 

Emergency removals in Title IX matters

An emergency removal is not a determination of responsibility and a respondent is still entitled to a presumption of nonresponsibility in a subsequent resolution process. Prior to the removal, Caldwell will undergo a five-step process:

  1. Prompt individualized safety and risk analysis
  2. Confirmation of immediate threat to the physical safety of any student or individual arising from the allegations of sexual harassment
  3. Evaluate the applicability of disability laws to the removal decision
  4. Consider the appropriateness of supportive measures in lieu of emergency removal
  5. Provide the respondent with notice and an immediate right to challenge the emergency removal

Employee administrative leave in Title IX matters

Employees may be placed on administrative leave following the filing of a formal Title IX complaint until the completion of the investigation and resolution process. Student employees will be paid during any administrative leave. Administrative leave is for non-emergency situations.

Interim supportive measures

Both parties have access to support services throughout an investigation and resolution process. This may include, but is not limited to, security escort services and counseling services on and off-campus. These services are also available whether or not a formal complaint is made.

Investigation Procedures

Caldwell University will conduct a prompt, thorough, and impartial investigation of all incidents of potential harassment or discrimination that come to Caldwell’s attention and take corrective or disciplinary action when appropriate. Allegations by or against a faculty member will be investigated by a trained team that includes at least one faculty member; allegations by or against a member of the staff will be investigated by a trained team that includes at least one staff member, and allegations by or against a student will be investigated by a trained team that includes at least one representative of Student Life.

Each party shall have the opportunity to identify witnesses and other evidence which he or she believes is relevant to the investigation.  Caldwell University will evaluate all relevant information and documentation relating to a complaint or report of discrimination or harassment. In investigations involving a Title IX complaint, all evidence collected during the course of the investigation that directly relates to the allegations will be available to both parties for review. Each party will have ten days to inspect the evidence and provide a written response to the investigators. The investigative team will consider any written response prior to finalizing the investigation report. Parties must submit any evidence they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins.

 

All investigations shall be conducted in a sensitive manner. The investigation and outcome will be shared only with those who have a need to know. The investigation report will be provided to both parties at the conclusion of the investigative phase. The parties have the right to submit a written response to the investigation report. If a hearing is scheduled, it will be scheduled no less than 10 business days after the investigation report is provided to the parties. In all investigations involving an alleged Title IX violation, Caldwell will send the evidence made available for each party and each party’s advisor to inspect and review. Caldwell is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access. The parties will have ten (10) business days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will consider the parties’ written responses before completing the Investigative Report. Parties may request a reasonable extension.  

The investigation and hearing process shall not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. A party’s medical, psychological, and similar treatment records shall be protected and may not be used in the investigation and hearing process unless Caldwell has obtained the party’s voluntary, written consent to do so.

The complainant and the respondent will be kept advised of the progress of the investigation, informed when the investigation has concluded and apprised in writing of the findings and recommendations of the investigative team. Title IX records are maintained by the Title IX Coordinator for seven (7) years; documentation of Title IX sanctions are copied to the appropriate office (sanctions imposed against faculty are copied to the Vice President for Academic Affairs, sanctions imposed against students are copied to the Vice President for Student Life, and sanctions imposed against non-faculty employees are copied to the Assistant Vice President, Human Resources). Any record related to a Title IX complaint and/or investigation cannot be expunged.

Advisor of Choice

Both parties have the right to an advisor of their choice throughout the investigation and resolution process. During the investigation process, the advisor may attend any meetings and may provide advice to the party. The advisor may not speak on behalf of the party during the investigation phase.

Due to Caldwell’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other University policies, Caldwell cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. Caldwell will not be obligated to delay a meeting or hearing under this process for more than five (5) days due to the unavailability of an Advisor of Choice and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by Caldwell.

Notice of Allegations in Title IX investigations

The Title IX Coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment that are subject to Title IX procedures. Such notice will occur as soon as practicable, after the institution receives a Formal Complaint of the allegations if there are no extenuating circumstances. The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means if they are neither.

The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.

 

The Title IX Coordinator may determine that the Formal Complaint must be dismissed and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.

 

Contents of Notice

The Notice of Allegations will include the following:

  1. Notice of the formal and/or informal resolution process.
  2. Notice of the allegations potentially constituting a Title IX violation and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the alleged conduct; and the date and location of the alleged incident, if known.
  3. A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
  4. A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv); and
  5. A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tend to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi).

Multi-Party Situations

The institution may consolidate Formal Complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or

by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.

Allegations Potentially Falling Under Two Policies

If the alleged conduct, if true, includes conduct that would constitute a Title IX violation and conduct that would not constitute a Title IX violation, the Title IX procedures will be applied in the investigation and adjudication of all of the allegations.

Hearing Board for Complaints Involving Students

With regard to complaints involving students, if the investigators determine that there is reason to believe that these policies prohibiting discrimination and harassment have been violated, a Hearing Board will be formed. If the respondent is a student, the Student Conduct Board will serve as the Hearing Board. If the respondent is not a student, the members of the Hearing Board will be selected by the Vice President for Institutional Effectiveness, in consultation with Human Resources, the Compliance Manager, and/or the Faculty Council President, based on the status of the complainant and respondent. For Complaints where a faculty member is a respondent, the Hearing Board shall include at least one faculty member. There shall be an odd number of members on the Hearing Board. An initial meeting of the Hearing Board will be scheduled promptly. Neither the Title IX Coordinator nor any investigator involved shall be a member of the Hearing Board. The investigator(s) will present their findings and recommendations to the Hearing Board. All individuals serving on a Hearing Board must complete all relevant training within one year prior of the date of the proceedings. 

Both the complainant and the respondent will be invited to attend the initial meeting of the Hearing Board. The Hearing Board may accommodate any individual with concerns for their personal safety, well-being, and/or fears of confrontation during the meeting by providing separate facilities and/or by permitting participation by other means as determined by the Hearing Board to be appropriate. This may include a live proceeding in which the parties are located in separate rooms but participate using technology that allows them to see and hear the proceedings simultaneously. Both parties will be entitled to be accompanied to any proceedings by an advisor of their choice.  Documentation of the proceedings of the meeting will be made available to both parties. 

If the Hearing Board determines, based on the available evidence, that more likely than not the respondent has violated University policies prohibiting discrimination or harassment, appropriate corrective or disciplinary action will be taken against the offending individual. This standard is known as the “preponderance of the evidence.” Corrective or disciplinary action may include but is not limited to, education, training, probation, suspension, termination of the contract, termination of employment, and/or expulsion from the University. Decisions of the Hearing Board will be made by majority vote. Both the complainant and the respondent will be informed when the Hearing Board has made its decision and apprised in writing of the outcome. Such information will be sent to both parties concurrently if possible.

If the Hearing Board determines that no violation of Caldwell’s policy prohibiting discrimination or policy prohibiting harassment occurred, it will prepare a report of its findings and notify the complainant and the respondent in writing.

Additional Procedures for Title IX matters

If the matter includes an alleged Title IX violation, both parties must be represented by an advisor. If a party has not chosen an advisor, an advisor will be provided at no cost to the party. Each party’s advisor is permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live proceeding must be conducted directly, orally, and in real-time by the party’s advisor of choice and never by a party personally, unless the Hearing Board has restricted the extent to which advisors may participate in the proceeding, pursuant to state and federal law.  Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the Hearing Board must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. A Hearing Board may require that questions be submitted in advance. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are “irrelevant,” unless (1) such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or (2) the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. Other forms of evidence and information not relevant include but are not limited to: information protected by a legally recognized privilege; evidence about a complainant’s prior sexual history, and any party’s medical, psychological, and similar records unless the party has given voluntary written consent; questions and evidence otherwise prohibited by law. Repetitive questions may also be deemed irrelevant.

If neither a party nor their advisor appears at a Title IX hearing, Caldwell will provide an advisor to appear on behalf of the non-appearing party.No party may waive their right to a live proceeding but their presence is not mandatory. If a party or witness does not submit to cross-examination at the live proceeding, the Hearing Board must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Hearing Board cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party. For example, A verbal or written statement constituting part or all of the sexual harassment itself is not a “prior statement” that must be excluded if the maker of the statement does not submit to cross-examination about that statement. In other words, a prior statement would not include a document, audio recording, audiovisual reading, and digital media, including but not limited to text messages, emails, and social media postings, that constitute the conduct alleged to have been the act of sexual harassment under the formal complaint. 

A party is permitted to call an “expert witness” in a Title IX hearing. While the expert witness will be allowed to testify and be crossed, the Hearing Board will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross-examination and regardless of whether all parties present experts as witnesses.

During a Title IX Hearing, Caldwell will admit and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed to testify and be crossed, the Hearing Board will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.

Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the Hearing Board may draw an adverse inference as to that party or witness’ credibility.

 An audio or audiovisual recording, or transcript, of the proceedings, will be created, which will be made available for the parties’ review   

Procedures for Complaints Not Involving Students

All complaints or reports alleging discrimination or harassment will be investigated by an investigative team constituted pursuant to section 2.1.2.4.  The Assistant Vice President, Human Resources or designee will issue a determination as to whether or not the policies prohibiting discrimination and harassment have been violated, and, if so, what appropriate corrective or disciplinary action will be taken.  The standard of evidence used will be a preponderance of the evidence. If sanctions are proposed against a faculty member, then relevant Volume IV procedures will be invoked.

Appeal Procedures

Appeal Procedures for Complaints Involving Students

If either party is not satisfied with the decision of the Hearing Board or the dismissal of a complaint, he or she has the right to file a written appeal with the Vice President for Institutional Effectiveness within five (5) working days of their receipt of the decision or dismissal. The appeal must state specific reasons why the party believes the decision was improper, based on one or more of the following grounds:

  1. A procedural irregularity that affected the outcome of the matter (e.g., substantiated bias or material deviation from established procedures, etc.); 
  2. To consider new evidence, unavailable during the original hearing or investigation, that could substantially impact the outcome of the matter. A summary of this new evidence and its potential impact must be included; 
  3. The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.; and/or
  4. The sanctions imposed are substantially disproportionate to the severity of the violation. 

If a formal signed appeal is filed, an Appeals Board will be formed within ten (10) working days and will promptly schedule a meeting to review the appeal. Members of the Appeals Board will be selected by the Vice President for Institutional Effectiveness. All members of the Appeals Board must have completed any relevant training within one year prior of the date of the proceeding. There shall be an odd number of members of the Appeals Board. When one party appeals, the other party must be notified in writing. Both parties must be given a reasonable, equal opportunity to submit a written statement in support of, or challenging, the responsibility determination or dismissal.The Appeals Board will make its decisions based on a majority vote.  The original findings and corrective or disciplinary action, if any, will stand if the appeal is not timely or substantively eligible, and the decision is final. The party requesting appeal must show error as the original findings and corrective or disciplinary action, if any, are presumed to have been reasonable and appropriate.

If the Appeals Board determines that new evidence should be considered, it will return the complaint to the Hearing Board for the limited purpose of reconsidering the complaint in light of the new evidence. The findings and recommendation following reconsideration of the Hearing Board are final. 

If the Appeals Board determines that a material procedural error occurred, it will return the complaint to the Hearing Board with instructions to reconvene to cure the error. The findings of the reconvened Hearing Board are final. In rare cases, where the procedural error cannot be cured by the original Hearing Board (as in cases of perceived bias), the Appeals Board may require that there be a new hearing regarding the complaint with a new Hearing Board. The findings of the new Hearing Board can be appealed, once, on the four applicable grounds for appeals. 

If the Appeals Board determines that the corrective or disciplinary action imposed are disproportionate to the severity of the conduct of the respondent, the Appeals Board will return the complaint to the Hearing Board, which will then modify the corrective or disciplinary action. This Hearing Board’s decision in this regard is final.

All decisions of the Appeals Board shall be made in writing and include its rationale. The decision will be provided to the parties simultaneously.

Supportive measures may remain in place throughout the Appeal process as needed.

Appeal Procedures for Complaints Not Involving Students

If either party is not satisfied with the determination of the Director, he or she has the right to file a written appeal with the Vice President for Institutional Effectiveness within five (5) working days of their receipt of the findings. The appeal must state specific reasons why the party believes the decision was improper, based on one or more of the following grounds:

  1. A procedural irregularity that affected the outcome of the investigation (e.g., substantiated bias or material deviation from established procedures, etc.); 
  2. To consider new evidence, unavailable during the original investigation, that could substantially impact the outcome of the matter. A summary of this new evidence and its potential impact must be included; 
  3. The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.; and/or
  4. The sanctions imposed are substantially disproportionate to the severity of the violation.

Within ten (10) working days of their receipt of the written appeal, the Vice President for Institutional Effectiveness will meet with each party. The written decision of the Vice President for Institutional Effectiveness shall be issued within five (5) days of the latter of these two meetings and shall be final. All decisions of the Vice President for Institutional Effectiveness shall be made in writing and include the rationale. The decision will be provided to the parties simultaneously.

Supportive measures may remain in place throughout the Appeal process as needed.

Revocation by Operation of Law

Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should any policy be revoked in this manner, any conduct covered under that policy shall be investigated and adjudicated under the existing Discrimination and Harassment Policy.

Grievance Procedures for Complaints involving Faculty

Any faculty member may pursue a grievance pertaining to a complaint that was dismissed due to the allegations being found not to meet the definition of Sexual Harassment if the requirements of Section 4.14.1 are otherwise satisfied. If the sanction is a recommendation of dismissal for cause or termination of tenure, the procedures outlined in Volume IV, Section 4.7.5, “Termination of Tenure,” or 4.8.5, “Dismissal for Cause,” will be invoked following the completion of the resolution process.

Prohibition of Retaliation

Caldwell University prohibits retaliation of any kind against any person who makes a complaint of discrimination or harassment, opposes discrimination or harassment, or testifies, assists or participates in an investigation, proceeding or hearing related to a complaint of discrimination or harassment of a complaint is prohibited.  Retaliation includes, but is not limited to, any form of intimidation, coercion, reprisal, harassment or treatment based upon retaliatory motive that is reasonably likely to deter protected activity. 

Initiating a complaint or participating in an investigation will not affect an individual’s employment, compensation, or work assignments or, in the case of students, grades, class selection, or any other matter pertaining to student status.

False accusations of harassment or discrimination can seriously injure innocent people. Initiating a false harassment or discrimination complaint or providing false information during the course of an investigation may result in disciplinary action. A finding that no discrimination or harassment occurred does not constitute a finding that the complaint was made in bad faith.

Retaliation shall include charging an individual with code of conduct violations that do not involve sexual harassment, but arise out of the same facts or circumstances as a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX.

Training Requirements

Title IX coordinators, investigators, decision-makers, and those involved in any informal resolution process shall be required to undergo training including the following topics, as well as any other topics required by state or federal law: 

  • The definition of sexual harassment for Title IX purposes;
  • The scope of the institution’s education “program or activity” under Title IX; 
  • How to conduct an investigation and grievance process including hearings, appeals, and informal resolution process, as applicable;
  • How to serve impartially including avoiding prejudgment of facts at issue, conflicts of interest, and bias;
  • Technology to be used at a live hearing;
  • Issues of relevance of questions and evidence, including rape-shield limitations; and
  • Issues of relevance to create an investigative report that fairly summarizes relevant evidence.

All training materials must be posted on the Caldwell University website.

Potential Sanctions 

Students found in violation of policies prohibiting discrimination and harassment are subject to the sanctions described in the C-Book, up to and including expulsion. Employees found in violation of the Institutional Policy Prohibiting Discrimination and Harassment are subject to a range of sanctions up to and including termination.

Right to Alternative Complaint Procedures

A student’s complaint of discrimination on the basis of race, color, religion, age, gender, gender orientation, national or ethnic origin or disability, including complaints of racial, sexual or other unlawful harassment, may be filed with the

Office for Civil Rights, New York Office

U.S. Department of Education

75 Park Place, 14th Floor

New York, NY 10007-2146

212.637.6466

Fax:  212.264.3803

TDD:  212.637.0478

E-mail:  OCR_NewYork@ed.gov

In addition to internal procedures, an employee may file a complaint of discrimination with the:

Division on Civil Rights, Newark Regional Office

N.J. Department of Law and Public Safety

31 Clinton Street 

P.O. Box 46001

Newark, NJ 07102

973.648.2700

United States Equal Employment

Opportunity Commission (EEOC)

Newark District Office 

1 Newark Center

21st Floor

Newark, NJ 07102-5233

973.645.6385

Counseling Services for Students

Students who have experienced or witnessed harassment or discrimination and wish to seek counseling services, including individual and/or group sessions, should contact the Counseling Center or Campus Ministry. Individuals who wish to anonymously report concerns regarding the emotional health of a student can contact the Campus Concern Line at 973.618.3333. The Counseling Center and Campus Ministry can be reached at:

Counseling Center

Caldwell University

120 Bloomfield Ave.

Caldwell, NJ 07006

973.618.3307

www.caldwell.edu

 

Campus Ministry 

Caldwell University 

120 Bloomfield Avenue 

Caldwell, NJ 07006 

973-618-3660

 

The Counseling Center can provide a current list of additional resources available both on and off campus. The Counseling Center can also provide a current copy of the “Campus Sexual Assault Victim’s Bill of Rights.”

Advocacy Services for Students

Students who have experienced any form of sexual, dating, domestic, or stalking violence – whether directly or indirectly (meaning: they know someone who has been impacted), whether the harm occurred recently or prior to enrolling at Caldwell –can access advocacy or advisory services through the Student Advocacy and Prevention Awareness office. Student Advocacy and Prevention Awareness leads Caldwell’s efforts in providing advocacy to survivors and secondary survivors of sexual, dating, domestic, and stalking violence; as well as response, prevention and education to the entire Caldwell community. You can find the Student Advocacy and Prevention Awareness office at:

Wellness Center

Newman Center – 2nd floor

Caldwell University

120 Bloomfield Avenue

Caldwell, NJ 07006

973-618-3907

Counseling Services for Employees

Employees who have experienced or witnessed harassment or discrimination and wish to seek counseling services may contact Human Resources or log onto the HR Portal for information regarding the Employee Assistance Program (EAP). The EAP is a confidential assessment, consultation, brief counseling, and referral service for employees. 

Human Resources can also provide a current list of additional resources available both on and off campus.

Additional Community Resources

Additional resources for victims of sexual assault, domestic violence, dating violence, and stalking include:

The Essex County Rape Care Center

877-733-2273

 

The National Sexual Assault 24-Hour Hotline

800-656-4673

800-601-7200

 

Jersey Battered Women’s Services

973-267-2763

 

Caldwell Police

973-226-2600 (non-emergencies) or 911 (emergencies)

Prevention and Awareness Campaigns

The University shall organize campaigns for prevention and awareness of harassment and discrimination. Such programs will be open to both students and employees. Training will be mandatory for incoming students and new employees. More specialized annual training will be required for any individual whose duties include the investigation of harassment and/or discrimination claims or participation in a Hearing Board or appeal.