Grievances and Discrimination Complaint Procedures
13.01 Resolution Of Grievances
Continuous, frank, and considerate communication between employees and their supervisors is expected. It is hoped that such a relationship will either avoid or solve most grievances that may arise. If, however, a grievance develops, it should be resolved as quickly as possible at the lowest possible level of supervision.
All employees have the right to discuss grievances concerning their welfare with their most immediate supervisor, and to secure due consideration and a fair adjustment. Supervisors, for their part, are expected to give each employee due consideration without harassment or threat of retaliatory action.
In the event that informal discussion does not resolve a grievance, the following procedure shall be utilized if the employee elects to seek further consideration of the matter.
13.02 Grievance Procedure(Revised Board of Trustees, 6/7/11)
Definitions - A policy interpretation grievance is an allegation by an employee (full or part-time) that the terms and conditions of that specific individual's employment by the College have been materially adversely affected by a violation, misinterpretation, misapplication, or nonapplication of written Board and/or College policies, rules, and regulations.
A disciplinary grievance is an allegation by an employee (full or part-time) that disciplinary action (including but not limited to termination of employment) taken by the College with respect to that employee was in violation of or arose out of the misinterpretation, misapplication, or non-application of written Board and/or College policies, rules, and regulations.
Unless and until modified or reversed at Steps One, Two, or Three, disciplinary action shall become effective at the time that notice thereof is given by the College (or the employee's supervisor).
Grievance Review Committee - At the commencement of each academic year, a Grievance Review Committee shall be appointed by the President to act as the final reviewer of decisions appealed from Step Two of the Grievance Procedure. The Committee shall consist of (a) six standing members, consisting of two regular, full-time employees in Salary Plan A (the "Plan A Members"), two regular, full-time employees in Salary Plan B (the "Plan B Members"), and two members of the Administration (the "Administrative Members"), and (b) one ad hoc member who shall be a Vice President and Campus Director (or his/her designee) of a campus other than the campus from which the grievance originated. In the case of a grievance filed by an employee in Plan A, or by employees in Plan A and Plan B, the grievance shall be heard by the Plan A Members, the Administrative Members and the ad hoc member. Similarly, in the case of a grievance filed by an employee in Plan B, the grievance shall be heard by the Plan B Members, the Administrative Members and the ad hoc member. In the case of a grievance filed by an employee in Plan C, the grievance shall be heard by Plan A Members or Plan B Members whose Plan contains the position corresponding to that held by the employee, the Administrative Members and the ad hoc member. The President has the authority to appoint an interim replacement for any Committee member(s) who temporarily is unable to serve.
In the event that (a) a grievance is filed jointly by employees from more than one campus, or (b) the grievance involves a Vice President and Campus Director, or the grievance is designated in writing by the President as involving matters of sufficient seriousness to so warrant, the President may substitute for the Vice President and Campus Director an individual of his/her own choosing, selected from within or without the College community.
The Committee shall be vested with the necessary authority to issue final and binding decisions on behalf of the College. The Committee shall appoint a Chairperson from among its standing members and shall establish such rules and regulations as it deems necessary to carry out its functions. A majority of those members of the Committee who are empowered to review a specific grievance shall constitute a quorum for the purpose of conducting such a review. If less than a majority of the committee members who participate in a review at which a quorum is present vote to modify or reverse the decision rendered at Step Two, that decision shall stand.
The Committee shall prepare a written report of its findings with respect to each grievance presented to it. Such report shall briefly summarize the grievance and shall set forth the Committee's conclusions and decision, briefly stating the reasons therefor. One copy of such findings shall be mailed to the employee (by certified or registered mail, return receipt requested), one copy shall be delivered to the President, and one copy shall be retained in the Committee's files for seven (7) years or for such other period as the Committee or Board deems appropriate. Decisions of the Committee shall not set a precedent as to other grievances.
Exclusions - In lieu of this procedure, complaints relating to alleged illegal employment discrimination shall be processed in accordance with the PROCEDURE FOR THE RESOLUTION OF EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS, 13.04 of this Section. In addition, complaints pertaining to sexual harassment shall be processed in accordance with the PROCEDURE FOR THE RESOLUTION OF SEXUAL HARASSMENT COMPLAINTS AGAINST AN EMPLOYEE, 13.05 of this Section. Moreover, subject to the above, any employee who files a grievance pursuant to this Section XIII shall be deemed to have waived any right he/she otherwise might have to seek separate review or reconsideration pursuant to Section XII of corrective or disciplinary action.
- The statement of the grievance shall be submitted within twenty (20) working days of the incident, or within twenty (20) working days of the date an employee could reasonably be expected to have first knowledge of the circumstances leading to the grievance.
- The statement of the grievance shall be limited to a single grievance, shall clearly state whether it is a policy interpretation grievance or a disciplinary grievance, and shall remain unchanged through each step of the procedure.
- Any settlement, withdrawal or disposition of a grievance at any step shall not constitute a binding precedent with respect to any similar grievances subsequently filed in the future.
- The employee shall have the right to have representation, at his or her own expense, at any and all proceedings throughout the grievance procedure.
- Each Vice President and Campus Director and the Human Resources and Legal Affairs Department in the Office of the President shall maintain grievance log books. Each grievance filed shall be dated and shall be assigned a number, including a designation indicating the type and geographical location of the grievance (100 series = policy interpretation, 500 series = disciplinary grievances) (S = Southern, T = Terry, W = Wilmington, ST = Stanton, P = Office of the President). This number shall be assigned by the Human Resources and Legal Affairs Department in the Office of the President. All action related to each grievance shall be recorded in the log book together with the date on which the action or event took place. It shall be the responsibility of each supervisor handling a grievance to promptly notify the individuals responsible for the logs of all actions.
- All prescribed actions and time commitments shall be strictly adhered to. Failure by the employee to take action within the time prescribed will result in dismissal, with prejudice, of the grievance and adherence to the decision reached at the prior step without further appeal of any kind.
Receipt of the grievance shall be acknowledged in writing as soon as possible. A decision by the Dean, Director, or Business Manager (concurred in by the General Counsel in the case of (a) below) with whom the grievance is filed that the issue raised (a) is not a grievance as that term is defined in this Section XIII, or (b) already is the subject of another pending grievance filed by the same employee, or has been resolved against the employee in a prior proceeding instituted pursuant to either Section XII or this Section XIII, is not reviewable. If the grievance is not barred for a reason(s) described in (a) through above, the Dean, Director, or Business Manager with whom the grievance has been filed may proceed to investigate it. In such event, a conference shall promptly be scheduled with the employee. Due consideration shall be given to the grievance and every effort shall be made to arrive quickly and fairly at an equitable solution. The decision of the Dean, Director, or Business Manager and his/her justification for it, shall be in writing and a copy shall be given or mailed to the employee and to the General Counsel and the Vice President for Human Resources within ten (10) working days after receipt of the grievance. In the event a decision is not given or mailed to the employee within the ten (10) working days, the employee may immediately submit an appeal at Step Two.
Step Two: If the employee is dissatisfied with the decision rendered at Step One, he/she shall have the right to request a review by the Vice President and Campus Director. Any such request must be: in writing, on the form provided; signed by the employee; and received by the Vice President and Campus Director within fifteen (15) days of the date of the decision rendered at Step One. The employee shall forward a copy of the request to the General Legal Counsel and the Vice President for Human Resources. Upon such request being properly filed, the Vice President and Campus Director shall investigate the grievance as he/she deems appropriate and shall render a decision in writing, with his/her justification for it, within twenty (20) working days of the filing of the request. In the event a decision is not rendered within the twenty (20) working days, the employee may immediately submit an appeal at Step Three. Step Two grievances relating to employees in the Office of the President shall be reviewed by the President.
Step Three: If the grievance is not resolved at Step Two, it may be appealed to the Grievance Review Committee (the "Committee") by filing a Notice of Appeal (which shall state the basis of the grievance in reasonable detail) with the Vice President and Campus Director or President (in cases of employees in the Office of the President). Any Notice of Appeal to the Committee must be: in writing, on the form provided; signed by the employee; and filed with the Vice President and Campus Director or the President (as the case requires) within ten (10) working days of the date of the decision rendered at Step Two. The Vice President and Campus Director shall forward a copy of his/her decision and justification for it and the Notice of Appeal from the employee (to which any relevant documents may be attached as exhibits) to the President within fifteen (15) working days of the receipt by the Vice President and Campus Director of the Notice of Appeal. The Vice President and Campus Director shall also forward copies of these documents to the Chief Legal Counsel and Associate Vice President for Human Resources. The Notice of Appeal and the decision of the Vice President and Campus Director together with other documentation of the grievance shall be transmitted to the Chairperson of the Committee by the President within ten (10) working days of receipt. Grievances relating to employees in the Office of the President shall include the President's decision and justification for it, and the Notice of Appeal (to which any relevant documents may be attached as exhibits).
The Committee shall review the grievance by examination of the data submitted and shall take one of the following actions within thirty (30) working days after the Notice of Appeal to the Committee is received by the President:
- Uphold the decision rendered at Step Two.
- Modify or countermand the decision.
- Decide to hold a hearing.
All decisions of the Committee shall be final and shall be in writing addressed to the employee, the Vice President and Campus Director and the President with a copy to the Chief Legal Counsel and Associate Vice President for Human Resources. Written notice of the Committee decision shall be mailed or delivered to the employee within five (5) working days after that decision has been reached.
To assure the objectivity and fairness of all deliberations by the Committee, employees shall refrain from communicating with its members individually regarding grievances.
13.03 Outline Of Procedure For Resolution Of GrievancesStep One
A. Employee presents grievance in writing to appropriate Dean, Director, or Business Manager. Grievances in the Office of the President shall be presented to the appropriate Department Head.
B. Employee receives written decision within ten (10) working days.
A. Employee may appeal Step One decision to Vice President and Campus Director within fifteen (15) working days of date of decision. Appeals in the Office of the President shall be made to the President.
B. A written decision shall be rendered within twenty (20) working days of receipt of appeal.
A. Employee may appeal Step Two decision to the Grievance Review Committee. Appeal must be received within ten (10) working days of Step Two decision.
B. Within thirty (30) working days of receipt of appeal, the Committee shall review the grievance and:
- Uphold the decision, or
- Modify or countermand it, or
- Decide to hold a hearing which shall be held within thirty (30) working days of date of mailing of hearing notice to the employee.
13.04 Procedure For The Resolution Of Discrimination And Sexual Misconduct Complaints
The Civil Rights Coordinator/Title IX Coordinator (“Title IX Coordinator”) will be responsible for overseeing the prompt, fair and impartial investigation and resolution of reports of discrimination and sexual misconduct to the College. Upon receipt of a complaint, the Title IX Coordinator shall make an initial determination regarding whether or not the complaint states a claim of discrimination or sexual misconduct; provided, however, that no determination that a complaint fails to state a claim for discrimination or sexual misconduct shall be made without first speaking with the Complainant. In cases where a claim of discrimination or sexual misconduct has been stated, the Title IX Coordinator shall immediately communicate, or attempt to communicate, with the Complainant to determine and implement interim/protective measures to the extent necessary. The Title IX Coordinator shall attempt to obtain a written statement from the Complainant within 5 days from the date of receipt of the complaint. However, a delay or refusal by the Complainant to complete a written complaint will not suspend or postpone the Title IX Coordinator’s obligation to move forward in the investigation. In addition, when a claim of discrimination or sexual misconduct has been stated, the Title IX Coordinator shall notify the Respondent that a complaint has been filed, the substance of the complaint, any protective measures that may have been instituted, the prohibition against retaliation or harassment involving the Complainant, the name of the Review Officer that will be assigned to investigate the complaint, and, if applicable, whether mediation is available.
Mediation is an informal and confidential way for the parties to resolve a complaint of discrimination or sexual misconduct prior to an investigation. It is available as an alternative means of resolving a complaint only if the alleged discrimination or sexual misconduct does not involve violence or abuse. Mediation requires the consent of all parties to the complaint and shall be documented by an agreement to mediate. When mediation is appropriate, the Title IX Coordinator shall make the offer to the Complainant first. If the Complainant or Respondent declines mediation, or if the Respondent fails to respond within 5 days from the date he or she receives notice that mediation is available, the Review Officer shall immediately begin his or her investigation.
Mediation may be discontinued at any time: (1) by either party; (2) by the mediator when he or she feels that further efforts to mediate would be non-productive; or (3) when a voluntary agreement has been reached.
The mediator shall notify the Title IX Coordinator of the success or failure of the mediation. If the mediation results in a voluntary settlement, a copy of the signed agreement shall also be provided to the Title IX Coordinator.
If the parties are unable to resolve the complaint through mediation, then the Review Officer shall immediately begin his or her investigation.
3. Right to an Advisor.
The Complainant and the Respondent shall have the right to be accompanied by an advisor, including an attorney of his or her own choosing, to any meeting or proceeding related to the complaint, investigation, hearing, and adjudication process for which the Complainant or Respondent is required to attend. Notwithstanding the foregoing, neither party may use an advisor for the purpose of obstructing the investigation, intimidating a party or witness, or creating a legitimate fear of retaliation in the other party.
a. An advisor may educate the Complainant or Respondent in regard to the process and may advise the Complainant or Respondent of their rights and options at each stage of the proceedings. They may actively participate in any stage of the proceedings unless otherwise specified by the Review Officer.
b. An advisor shall not have the right to conduct direct or cross examination of either parties’ witnesses or the parties themselves.
c. The advisor may address the Review Officer, Title IX Coordinator or the Discrimination/Sexual Misconduct Review Committee on behalf their advisee at appropriate times during each meeting or proceeding.
d. The College shall not cancel, postpone, delay or reschedule a meeting or hearing solely because an advisor is unavailable to be present, unless good cause is shown.
e. An advisor may be removed from any meeting or proceeding if he or she engages in conduct prohibited herein; refuses to abide by the instructions of the Review Officer, Title IX Coordinator or Discrimination/Sexual Misconduct Review Committee; is disruptive to the meeting or proceeding; or is disrespectful to any other participant in an investigation, meeting or hearing.
f. The advisor may not attend any meeting or proceeding without his or her advisee present, unless the advisee expressly authorizes the advisor to act as proxy on his or her behalf and consents to the disclosure of their records to the advisor.
g. The College does not offer or provide advisors or legal representation in any meeting or proceeding in which one party has an advisor or legal representation and the other party does not. However, the College shall notify students and employees of available legal assistance from the community.
i. There shall be no discovery by any of the parties or their respective advisors prior to a meeting or hearing.
4. Interim/Protective Measures.
If, at any point during the complaint, investigative, or disciplinary process, the Title IX Coordinator deems it necessary for the protection of any member of the College community, the Title IX Coordinator may institute interim/protective measures on behalf of the Complainant, the Respondent, or any witness involved in the complaint.
5. Initial Meeting with Review Officer.
The Review Officer shall contact the Complainant and the Respondent to schedule separate initial meetings as soon as practicable after his or her appointment or, if mediation was offered, after it was declined or unsuccessful. For good cause shown, and upon approval from the Title IX Coordinator, the Review Officer may obtain additional time to conduct the initial meetings.
6. Burden of Proof.
The Review Officer shall investigate the complaint to determine whether, by a preponderance of the evidence, the alleged discrimination or sexual misconduct has occurred.
7. Authority to Investigate.
The Review Officer shall have access to such documents or video in the possession of the College, including student records, public safety records or personnel files, that he or she believes may contain relevant information or which may lead to the discovery of relevant information.
The investigation shall include interviews with both parties involved in the complaint, whenever possible, and/or may include interviews with individuals who may have observed the alleged discrimination or misconduct or may have relevant knowledge of the incident. The investigation may also include interviews with experts, where applicable.
Where applicable, the Review Officer may visit, inspect and photograph sites relevant to the alleged incident, and collect and preserve relevant evidence (which shall be coordinated with the law enforcement agency having jurisdiction over the alleged incident when a corresponding criminal complaint has been filed).
8. Review Officer’s Report.
The Review Officer shall submit to the Title IX Coordinator a written investigative report with his or her findings and conclusions of whether, by a preponderance of the evidence, discrimination or sexual misconduct has occurred.
The Title IX Coordinator shall provide a summary of the report to the parties, who may accept the findings and conclusions contained therein or may request a hearing in accordance with Section 12. Either party shall have the right to request a hearing.
A Review Officer’s findings shall be final if neither party requests a hearing within 10 days from the date notice of the right to appeal is sent. In situations where a Review Officer’s findings of discrimination or sexual misconduct become final, a copy of the report shall be provided to the appropriate Dean of Student Affairs if the Respondent is a student or the appropriate Director of Human Resources if the Respondent is an employee for disciplinary action. If the Respondent is an employee of the Office of the President (including Office of the President employees who work at a campus location), the Review Officer’s report shall be provided to the Vice President for Human Resources for disciplinary action.
Either party may appeal the Review Officer’s findings by requesting a hearing on the complaint of discrimination or sexual misconduct. The hearing shall be before a Discrimination/Sexual Misconduct Review Committee (hereafter “Review Committee”), or if both parties agree, may be conducted by the Title IX Coordinator as a single hearing officer (hereafter “Hearing Officer”). A request for a hearing shall be made in writing within ten (10) working days following the date notice of the right to appeal is sent.
The Title IX Coordinator, or his or her designee, shall provide written notice to the parties of the date, time, and place for the Review Committee hearing. Such notice shall also include a summary of the rules governing how the hearing will be conducted.
Absent extenuating circumstances, or an agreement by the parties, the hearing shall take place as soon as practicable.
The role of the Review Committee/Hearing Officer shall be to hear and consider testimony and other relevant, reliable evidence and make findings of fact related thereto. In addition, the Review Committee/Hearing Officer shall be charged with determining, by a preponderance of the evidence, whether or not a violation of the College’s Policy on Discrimination or Policy on Sexual Misconduct has occurred.
The Review Committee/Hearing Officer shall accept and consider any and all relevant information or evidence offered by or on behalf of any party, including testimony from the Review Officer regarding the substance of their investigation. Formal rules of evidence or procedure shall not apply to a discrimination/sexual misconduct hearing, but the Review Committee/Hearing Officer may exclude plainly irrelevant or repetitive evidence. No stenographic record or audio or video recording of the hearing may be made.
The Review Committee/Hearing Officer shall submit a written report to the parties setting forth its findings of fact and its determination as to whether a violation of the College’s policies has occurred within five (5) working days following the conclusion of the hearing.
If a violation is found to have occurred, the report shall also include a recommendation of appropriate relief and/or sanctions, up to and including dismissal from the College.
The decision of the Review Committee/Hearing Officer shall be final.
10. Discrimination/Sexual Misconduct Review Committee.
The Discrimination/Sexual Misconduct Review Committee (hereafter “Review Committee”) shall consist of the Title IX Coordinator, who shall serve as the Committee Chairperson, one Review Officer who was not involved in the investigation of the allegations of discrimination or sexual misconduct; and the Dean of Student Affairs or the Director of Human Resources, or his or her designee, on the campus where the alleged incident took place.
Sanctions for violations of the College’s Policy on Discrimination or Policy on Sexual Misconduct include counseling, verbal and/or written reprimand, improvement or corrective action plan, suspension and/or dismissal from the College or termination from employment at the College, exclusion from academic participation or other college sponsored programs, and/or denial of access to College facilities as determined through these procedures.
Any recommendation for sanctions made by the Review Committee/Hearing Officer shall be reviewed by the appropriate Campus Director if the Respondent is a student or campus employee. If the Respondent is an Office of the President employee, then the recommendation for sanctions shall be reviewed by the Vice-President with administrative responsibility for the division in which the Respondent is employed. The Campus Director of Vice-President shall either accept, reject or modify any recommendation. Where a recommendation is rejected, the Campus Director or Vice-President shall then determine what sanctions should be taken and the reasons for taking such sanctions, which may be greater or less than the sanctions recommended. For positions that directly report to the President, the President shall be substituted for the Vice-President in the operation of this policy.
12. Timeframe for Resolving Complaints.
Every reasonable effort shall be made to conclude the investigation and resolve the complaint within sixty (60) days following receipt of the complaint. Within this sixty (60) day time frame, absent good cause, it is expected that the Review Officer will conclude the investigation and present a report to the Title IX Coordinator, that the parties will be notified in writing of the Review Officer’s determination and that a final disposition will have occurred based on the findings of the Review Officer, or on the decision of the Title IX Coordinator or Review Committee in the event an appeal is taken.
13. Confidentiality and Document Retention.
The Review Officer, Title IX Coordinator, or anyone having possession of any work product relating to the complaint shall not disclose, distribute, copy or transfer said work product to the parties or any third party. “Work product” is defined as any information gathered by the Review Officer for purposes of conducting an investigation of a complaint of discrimination or sexual misconduct.
The complete file, which includes, but is not limited to the complaint, all work product, the investigative report and all dispositions, decisions and/or determinations shall be maintained at the Office of the Title IX Coordinator. The Title IX Coordinator shall maintain confidentiality of the file, which shall only be disclosed by Order of a court of competent jurisdiction or by applicable state or federal law.
When a finding of discrimination/sexual misconduct is final, the Review Committee/Hearing Officer’s report and a record of the sanctions imposed shall be maintained as part of the student’s educational record or employee’s personnel file, as applicable.
14. Conflicts of Interest.
The Review Officer shall disclose to the Title IX Coordinator of any potential conflicts of interest which would prevent him or her from conducting the investigation of alleged discrimination or sexual misconduct.
The Complainant or Respondent may identify to the Title IX Coordinator in writing of any real or perceived conflicts of interest posed by assigning such Review Officer to the matter.
If any conflict of interest exists between the Review Officer and any of the parties, the Title IX Coordinator shall reassign the report of alleged discrimination or sexual misconduct to another Review Officer.
15. Prohibition Against Retaliation.
It is a violation of College policy for any member of the College community to retaliate against the Complainant, any individual who participates in any discrimination or sexual misconduct investigation or proceeding, or against the Respondent who has been accused of engaging in discrimination or sexual misconduct. While all discrimination and sexual misconduct allegations will be reviewed in accordance with these procedures, the College community is advised that a claim of discrimination or sexual misconduct is not proof of prohibited conduct. Anyone who believes that he/she has been subject to retaliation arising from discrimination or sexual misconduct allegations is encouraged to report such behavior to the Title IX Coordinator. A finding of retaliatory conduct is subject to disciplinary action, up to and including termination.
(Board of Trustees 4/11/17)
13.05 Definitions Applicable To Sexual Misconduct
The following definitions shall apply to the College’s Policy on Sexual Misconduct (Section 1.03) and the Procedure For the Resolution of Discrimination and Sexual Misconduct Complaints (Section 13.04):
Abuse. “Abuse” means conduct which constitutes the following:
A. Intentionally or recklessly causing or attempting to cause physical injury. a sexual offense as defined in §761 of Title 11 of the Delaware Code,
B. Intentionally or recklessly placing or attempting to place another person in reasonable apprehension or fear of physical injury or sexual offense as defined in §761 of Title 11 of the Delaware Code;
C. Intentionally or recklessly damaging, destroying or taking the tangible property of another person;
D. Engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response.
E. Trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order.
F. Child abuse, as defined in Chapter 9 of Title 16 of the Delaware Code;
G. Unlawful, imprisonment, kidnapping, interference with custody and coercion, as defined in Title 11 of the Delaware Code; or,
H. Any other conduct which a reasonable person under the circumstances would find threatening or harmful.
Complainant. “Complainant” is an alleged victim of sexual misconduct, relationship violence and/or stalking who elects to file a complaint and participate in the College’s investigation and resolution of the alleged sexual misconduct.
Complaint. “Complaint” is an allegation of sexual misconduct, relationship violence and/or stalking asserted against another party and reported to or filed with the College.
Consent. “Consent” means informed, actively and freely given, mutually understandable words or actions that indicate a willingness to participate in a mutually agreed upon sexual activity. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutual agreement between them to engage in certain activities with each other. It is the responsibility of the initiator to obtain clear and affirmative responses at each stage of sexual involvement. The lack of a negative response is not consent. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Ignoring objections or acting in spite of objections by the other party does not gain consent.
A. Consent cannot be inferred from:
- Silence, passivity, or lack of resistance alone;
- A current or previous dating or sexual relationship alone (or the existence of such a relationship with anyone else);
- Spending money on behalf of the other party, e.g. buying dinner on a date;
- Consent previously given (i.e. consent to one sexual act does not imply consent to another sexual act or a future sexual act.)
B. Use of Force or Threat of Use of Force: There is no consent if it is obtained through the use of physical force, violence, duress, intimidation, coercion or the threat, expressed or implied, of bodily injury. Whether the accused used intimidation coercion to obtain consent is determined by whether a reasonable person in the same or similar circumstances would have felt intimidated or coerced into giving consent.
C. Coercion: “Coercion” is the unreasonable pressure for sexual activity. Coercion is the use of emotional manipulation to persuade someone to do something they may not want to do such as being sexual or performing certain sex acts. Being coerced into having sect or performing sexual acts is not consenting to having sex and is considered sexual misconduct.
D. Incapacitation: “Incapacitation” is a state where someone cannot make rational, reasonable decisions because he/she lacks the capacity to give knowing consent. Consent may never be given by:
- Minors, even if the other party did not know the minor’s age;
- Mentally disabled persons, if their disability was reasonably known to a sexual partner who is not mentally disabled; or,
- Persons who are incapacitated as a result of alcohol, drug use, unconsciousness, blackout. The use of alcohol or drugs does not diminish one’s responsibility to obtain consent and does not excuse conduct that constitutes sexual misconduct.
- Persons who are incapacitated as a result of sleep, involuntary physical restraint or consumption of rape drugs.
Dating Violence. “Dating or Domestic violence” means violence committed by a person:
A. Who is, or has been, in a relationship of a romantic or intimate nature with the victim;
B. Where there is, or has been, abuse, as defined in this policy, or a pattern of behavior in the relationship which is used to establish power and control over the victim through fear and intimidation.
- “Pattern of Behavior” means behavior by one party in an intimate relationship that is used to establish power and control over the other person in the relationship through fear and intimidation.
- A pattern of behavior is determined based on the repeated use of words and/or actions and inactions in order to demean, intimidate, and/or control another person. This behavior can be verbal, emotional and/or physical.
C. Examples of abuse, which can occur singly or as a pattern of behavior, include but are not limited to, slapping, pulling hair, punching, damaging property, driving recklessly to scare someone, name calling, humiliating one in public, harassment directed toward a current or former partner or spouse, threats of abuse, such as threatening to hit, harm or use a weapon on another, or other forms of threat.
D. Whether dating violence has occurred shall be based on the existence of an intimate relationship which shall take into consideration the following factors:
- The length of the relationship;
- The type of relationship; and,
- The frequency of interaction between the persons involved in the relationship.
Domestic Violence. “Domestic violence” means abuse committed by a current or former spouse of the victim; by a person who is cohabiting with the victim where they hold themselves out as a couple, with or without a child in common; by a person living separate and apart from the victim with a child in common; or by a person in a current or former substantive dating relationship with the victim, or by any person similarly situated to a spouse or intimate partner of the victim under the domestic violence laws of the State of Delaware; or by a person against a family member as that term is defined in §901(12) , Title 10 of the Delaware Code; or by any person against an adult or youth victim who is protected from that person’s acts under the domestic violence laws of the State of Delaware.
Fondling. “Fondling” means the touching of the private parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
Hate Crime. “Hate Crime” means any person who selects a victim because of his or her race, color, disability, national origin or ancestry, sex, religion, gender identity, gender expression, age, education, veteran status, pregnancy, genetic information, socio-economic status or any other category protected by federal or state civil rights law, and commits any act or crime against that victim for the purpose of interfering with the free exercise of his or her First Amendment or other constitutional rights and:
A. Adversely affects a term or condition of an individual’s employment, education, participation in the College’s activities or environment;
B. Has the purpose or effect of unreasonably interfering with an individual’s employment or academic performance or creating an intimidating, hostile, offensive or abusive environment;
C. Is used as a basis for or a factor in decisions that tangibly affect that individual’s employment, education, or participation in the College’s activities or environment.
Whether alleged conduct constitutes a hate crime depends on the totality of the circumstances and the context in which the conduct is made. For example, verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum does not constitute a hate crime.
Incest. “Incest” means non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
Rape. “Rape” is the act of sexual intercourse or penetration (anal, oral or vaginal), however slight, with any body part or any object, by a man or a woman upon a man or a woman, without consent, including vaginal penetration by a penis, object, tongue or finger; anal penetration by a penis, object, tongue or finger; and oral copulation (mouth to genital or genital to mouth contact).
Retaliation. “Retaliation” means any adverse action threatened or taken against a person because he or she has filed, supported or provided information in connection with a complaint of sexual misconduct, including but not limited to direct and indirect intimidation, threats, and harassment.
Sexual Assault. “Sexual Assault” means a sexual act or acts to which a person has not consented or for which a person is incapable of consenting due to age, intoxication or other reasons. Sexual assault includes, but is not limited to:
A. Rape, or attempted rape;
B. Intentional and unwelcome sexual touching (including disrobing or exposure), however slight, with any body part or any object, by a person upon another person without consent, of the person’s breasts, buttocks, groin, or genitals (or clothing covering such areas), or coercing, forcing, or attempting to coerce or force another to touch you, themselves, or a third party with any of the body parts or areas when such touching would be reasonably and objectively offensive;
C. Any sexual act in which there is force, violence, or use of duress or deception upon the victim;
D. Any sexual act perpetrated when the victim is unable to give consent; and,
E. Sexual intimidation, which includes, but is not limited to:
- Threatening, expressly or impliedly, to commit a sexual act upon another person without his or her consent;
- Stalking or cyber-stalking; and,
- Engaging in indecent exposure.
Sexual Exploitation. “Sexual Exploitation” means any act of taking non-consensual unjust or abusive sexual advantage of another person for one’s own advantage or benefit or to benefit or advantage anyone other than the person being exploited. Sexual exploitation includes, but is not limited to:
A. Causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over such person;
B. Prostituting another person (i.e. personally gaining money, privilege or power from sexual activities of another);
C. Non-consensual videotaping, photographing, or audio-taping of sexual activity and/or distribution of these materials via media such as, but not limited to, the Internet;
D. Exceeding the boundaries of consent (e.g. allowing another person to observe consensual sex without the knowledge of or consent from all participants);
E. Voyeurism; and
F. Knowingly or recklessly transmitting a sexually transmitted disease (including HIV) to another individual.
Sexual Harassment. “Sexual harassment” shall mean any unwelcome sexual advances, requests for sexual favors, and other verbal, written, or physical conduct of a sexual nature constitute sexual harassment when:
A. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s education; or
B. Submission to or rejection of such conduct by an individual is used as the basis for academic decisions affecting that individual; or
C. If non-physical, such conduct is so severe, pervasive, and objectively offensive that the victim is effectively denied equal access to the College’s resources and opportunities.
Sexual harassment may involve individuals of the same or different gender. Sexual harassment is most frequently associated with those situations in which a power differential exists between persons involved; however, it also may occur between individuals of the same College status, i.e., student-student.
Examples of severe and pervasive non-physical conduct, which may constitute sexual harassment when such expression is so objectively offensive that it denies the victim equal access to the College’s resources and opportunities include, but are not limited to:
A. Unwelcome sexual advances, requests for sexual favors, or other non-physical conduct of a sexual nature;
B. Sexually explicit statements, comments, questions, pictures, objects, jokes, or anecdotes;
C. Unwelcome use of the electronic mail or telephone communication system to communicate prohibited conduct or activities; or
D. Graphic comments about a person’s clothing or body.
Sexual Misconduct. “Sexual misconduct” means any unwelcome conduct of a sexual nature, including any conduct or act of a sexual nature committed against an individual without consent. Sexual misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. Sexual misconduct can be committed by men or by women, and it can occur between people of the same or different sex. Sexual misconduct also includes complicity in sexual misconduct. The College encourages reporting of all sexual misconduct. Sexual misconduct includes, but is not limited to:
A. Dating violence;
B. Domestic violence;
C. Sexual Assault;
D. Sexual Exploitation;
E. Sexual Harassment; and,
Statutory Rape. “Statutory Rape” means nonforcible sexual intercourse with a person who is under the statutory age of consent.
Stalking. “Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (i) fear for his or her safety or the safety of others; or (ii) suffer substantial emotional distress.
A. “Course of conduct” means two or more acts, including but not limited, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follow, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. It can include, but is not limited to:
- Non-consensual communication (face-to-face, telephone, email)
- Threatening or obscene gestures;
- Showing up outside the targeted individual’s classroom or workplace;
- Sending gifts (romantic, bizarre, sinister, or perverted)
- Making threats
B. “Emotional distress” means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.
C. “Reasonable person” means a reasonable person under the circumstances and with similar identities to the victim.
(Revised Board of Trustees, 4/12/16)