Approved:
10 Dec 2020
Prior Version:
14 Aug 2020
Applicability:
This policy applies to anyone participating in, or attempting to participate in, BYU’s education program or activity.
Policy Owner:
Academic Vice President, Administration Vice President and CFO, Student Life Vice President
Responsible Office:
Human Resource Services, Office of the Associate Academic Vice President – Faculty Relations, Title IX Office
Contents, Related Policies, Applicability

Approved:
10 Dec 2020
Prior Version:
14 Aug 2020
Applicability:
This policy applies to anyone participating in, or attempting to participate in, BYU’s education program or activity.
Policy Owner:
Academic Vice President, Administration Vice President and CFO, Student Life Vice President
Responsible Office:
Human Resource Services, Office of the Associate Academic Vice President – Faculty Relations, Title IX Office
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Sexual Harassment Policy

All forms of sexual harassment, including sexual assault, dating violence, domestic violence, and stalking are contrary to the teachings of The Church of Jesus Christ of Latter-day Saints and the Church Educational System Honor Code. Brigham Young University prohibits sexual harassment by its personnel and students and in all its education programs or activities.


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I. Definitions

Complainant means an individual who is alleged to be the victim of conduct that could constitute Sexual Harassment.

Consent means a voluntary agreement to engage in sexual activity and is determined by all the relevant facts and circumstances. An act is without consent of a Complainant under any of the following circumstances:

  • the Complainant expresses lack of consent through words or conduct
  • the Respondent overcomes the Complainant through the actual application of physical force or violence
  • the Respondent is able to overcome the Complainant through concealment or by the element of surprise
  • the Respondent coerces the Complainant to submit by threatening to retaliate against the Complainant or any other person and the Complainant believes at the time that the Respondent has the ability to execute this threat
  • the Respondent knows the Complainant is unconscious, unaware that the act is occurring, or is physically unable to resist
  • the Respondent knows or reasonably should know that the Complainant has a disability that renders the Complainant unable to appraise the nature of the act, resist the act, understand the possible consequences to the Complainant's health or safety, or appraise the nature of the relationship between the Respondent and the Complainant
  • the Respondent knows that the Complainant participates because the Complainant mistakenly believes that the Respondent is someone else
  • the Respondent intentionally impaired the Complainant’s ability to appraise or control his or her conduct by administering any substance without the Complainant’s knowledge
  • the Complainant is younger than 14 years of age
  • the Complainant is younger than 18 years of age and at the time of the alleged act the Respondent was the Complainant’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust (such as teacher, coach, counselor or ecclesiastical leader) in relation to the Complainant
  • the Complainant is 14 years of age or older, but younger than 18 years of age, and the Respondent is more than three years older than the Complainant and entices or coerces the Complainant to submit or participate
  • the Respondent is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the Complainant reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the Complainant could not reasonably be expected to have been manifested

Consent to any sexual act or prior consensual activity between or with any person does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity.

Dating Violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship will be determined based on a consideration of 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 means a violent act committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, by a person similarly situated to a spouse of the Complainant, or by any other person against a victim who is protected from that person’s acts under state domestic or family violence laws.

Education Program or Activity means all of a school’s operations, and BYU’s Education Program or Activity includes all locations, events, or circumstances over which the university exercised substantial control over both the Respondent and the context in which the Sexual Harassment occurred.

Locations include both on-campus locations and off-campus buildings owned or controlled by BYU. Off-campus locations that are not subject to substantial control by the university, such as BYU-contracted off-campus housing, are not within BYU’s Education Program or Activity. BYU will consider factors such as whether the university funded, promoted, or sponsored the event or circumstance in which the alleged off-campus Sexual Harassment occurred in determining whether it occurred in BYU’s Education Program or Activity.

Formal Complaint means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that BYU investigate the Sexual Harassment allegation.

Party means a Complainant or a Respondent.

Respondent means an individual who is alleged to be the perpetrator of conduct that could constitute Sexual Harassment.

Sexual Assault means any sexual act directed against a Complainant without the Complainant’s Consent. Sexual Assault includes fondling, incest, rape, sexual assault with an object, sodomy, and statutory rape.

Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:

  • a BYU employee or faculty member conditions the provision of an aid, benefit, or service of BYU on an individual’s participation in unwelcome sexual conduct
  • unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to BYU’s Education Program or Activity
  • Sexual Assault, Dating Violence, Domestic Violence, or Stalking

Sexual Violence means Sexual Assault, Dating Violence, Domestic Violence, or Stalking.

Stalking means engaging in a course of conduct (two or more acts) directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others, or to suffer substantial emotional distress. Both in-person and electronic stalking are prohibited.

Supportive Measures means nondisciplinary, nonpunitive, individualized services offered as appropriate, as reasonably available, and without fee or charge to a Complainant or a Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Supportive Measures are measures designed to restore or preserve equal access to BYU’s Education Program or Activity without unreasonably burdening the other Party, including measures designed to protect the safety of all parties or the university’s educational environment, or deter Sexual Harassment. Supportive Measures may include referral to the university’s sexual assault survivor advocate or confidential advisor to Respondents, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, University Police SafeWalk services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

Title IX Coordinator means the person authorized by BYU to coordinate the university’s efforts to comply with its responsibilities under Title IX and to institute corrective measures on behalf of the university.


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II. Reporting

A Sexual Harassment report may be made by any person who believes that Sexual Harassment may have occurred that requires BYU’s response. The person reporting need not be the Complainant.

A. Mandatory Reporters

University employees in the following positions who become aware of Sexual Harassment committed by university personnel or students or occurring in BYU’s Education Program or Activity must report all relevant information to the Title IX Coordinator: president, vice president, assistant to the president, associate vice president, assistant vice president, dean, associate dean, assistant dean, department chair, faculty member, coach, assistant coach, athletic trainer, executive director, director, managing director, senior director, associate director, assistant director, senior manager, manager, assistant manager, supervisor, lead, and Title IX Office employees.

Any of these employees who receive a report of Sexual Harassment committed by university personnel or students or occurring in BYU’s Education Program or Activity should inform the reporting individual that the employee must report the incident to the Title IX Coordinator, and the employee must then promptly make the report. Any employee who knowingly fails to report relevant information to the Title IX Coordinator as required by this paragraph may be subject to disciplinary action. An employee who receives the information as part of a confidential communication in the context of a professional or otherwise privileged relationship (e.g., the employee was the reporting person’s physician, therapist, lawyer, ecclesiastical leader, or spouse) does not have a reporting obligation under this policy.

B. Where to Report

To ensure that the university has the information necessary to respond appropriately to complaints, reports of Sexual Harassment must be made to the Title IX Coordinator. BYU has actual knowledge of alleged Sexual Harassment only when its Title IX Coordinator receives a report. Reports may be made in person, by mail, by telephone, or by electronic mail, at the following locations:

BYU Title IX Office
1085 WSC
Provo, UT 84602
801-422-8692
t9coordinator@byu.edu

This information is also located on the Title IX Office’s website: https://titleix.byu.edu/titleix/contact-us. Reports may be made at any time, including during nonbusiness hours, although in-person reports may be made only during regular business hours. In addition, individuals may submit reports, including anonymous reports, through EthicsPoint, the university’s 24-hour hotline provider, by telephone at 888-238-1062, or by submitting information online here.

C. Timing

Reports of Sexual Harassment should be made to the Title IX Coordinator as soon as possible. However, Supportive Measures are available to Complainants regardless of when a report is made.

D. Formal Complaints of Sexual Harassment

Unless a Formal Complaint is filed, a report of Sexual Harassment will not initiate any type of grievance process or result in any disciplinary action against an individual who is alleged to be the perpetrator of Sexual Harassment (Respondent) under this policy. Only a filed Formal Complaint will initiate a process that could result in discipline against a Respondent.

The grievance process is initiated by (1) a Complainant filing a Formal Complaint document with the Title IX Coordinator alleging Sexual Harassment by a Respondent and requesting that BYU investigate the Sexual Harassment allegation or (2) the Title IX Coordinator signing and issuing a Formal Complaint.

A Formal Complaint should clearly and concisely describe the incident(s), including the identities of the Parties involved in the incident(s), if known; the conduct allegedly constituting Sexual Harassment; and the date and location of each alleged incident constituting Sexual Harassment, if known.

Filed by Complainants

Unlike a report of Sexual Harassment, Formal Complaints may not be filed anonymously. A Complainant’s Formal Complaint must contain the Complainant’s physical or electronic signature or otherwise indicate that the Complainant is the person filing the Formal Complaint.

Signed by Title IX Coordinator

Generally, the university will honor a Complainant’s request that the university not conduct an investigation. However, if the Complainant is unwilling to file a Formal Complaint and the Title IX Coordinator determines that a failure to investigate would prevent the university from meeting its responsibility to provide students and employees with an environment free from Sexual Harassment, the Title IX Coordinator may initiate an investigation by signing a Formal Complaint. The Title IX Coordinator will inform the Complainant prior to signing a Formal Complaint, and the university will provide the Complainant with all notices required under the applicable procedures, but the Complainant is not required to respond or participate in any manner.

When the Title IX Coordinator initiates a grievance by signing a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a Party to the grievance and must comply with the impartiality requirements and all other standards required of individuals involved in administering processes under this policy.


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III. University Response to Sexual Harassment

Upon receiving a report of Sexual Harassment, the Title IX Coordinator will promptly contact the Complainant identified in the report to discuss and provide written information about the availability of Supportive Measures; consider the Complainant’s wishes with respect to Supportive Measures; inform the Complainant that Supportive Measures are available with or without the filing of a Formal Complaint; and explain the process for filing a Formal Complaint, including possible sanctions the university may impose after determining the Respondent’s responsibility for Sexual Harassment.

If the report includes allegations of Sexual Violence, the Title IX Coordinator will also provide the Complainant with written information about the following:

  • the importance of preserving evidence that may be necessary to prove a crime or obtain a protective order
  • law enforcement options, including the Complainant’s options to
    • notify BYU Police or other local police, with the assistance of the Title IX Office if the Complainant so chooses; or
    • decline to notify law enforcement authorities
  • the Complainant’s rights regarding protective orders or similar orders issued by a criminal or civil court
  • existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims both on campus and in the community

A. Supportive Measures

As part of the university’s response to any report of Sexual Harassment, the Title IX Coordinator will promptly contact the Complainant to discuss and provide written notice of the availability of Supportive Measures, with or without the filing of a Formal Complaint, and will discuss and provide written notice of the Formal Complaint process. The university will maintain as confidential any Supportive Measures provided to a Complainant, to the extent that maintaining such confidentiality would not impair the ability of the university to provide the Supportive Measures. The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures for the Complainant and, as appropriate, for the Respondent.

Supportive Measures will be offered to both the Complainant and the Respondent as the Title IX Coordinator deems appropriate and as such measures are reasonably available.

The university may remove a Respondent from BYU’s Education Program or Activity on an emergency basis if it determines that an immediate threat to the physical health or safety of any student or other individual arising from the Sexual Harassment allegations justifies immediate removal pending further investigation and disposition. See Banning Policy. In such cases, the university will conduct an individualized safety and risk analysis and will provide the Respondent with notice and an opportunity to challenge the decision immediately following the removal.

Human Resource Services may also place a staff or administrative non-student employee Respondent on administrative leave, and Faculty Relations may place a faculty or athletic professional Respondent on administrative leave, during the pendency of a formal or informal grievance process under this policy and its procedures.

B. Notice of Applicable Procedures

If a Complainant elects to file a Formal Complaint against a Respondent, the Title IX Coordinator will also notify the Respondent and provide the Complainant and the Respondent with a written notice of allegations that includes an explanation of the grievance resolution processes used for institutional disciplinary actions. The university will not impose any disciplinary sanctions or other actions against a Respondent that are not Supportive Measures prior to making a determination as to whether the Respondent is responsible for Sexual Harassment under the applicable resolution process.

The Title IX Coordinator will follow the Sexual Harassment Grievance Procedures (Title IX) to respond to Formal Complaints of Sexual Harassment occurring against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity, as required by federal regulations promulgated under Title IX of the Education Amendments Act of 1972.

The Title IX Coordinator will follow the Sexual Harassment Grievance Procedures (Non-Title IX Sexual Violence) to respond to Formal Complaints of Sexual Violence against a BYU employee or student that do not fall under federal Title IX regulations because the allegations in the Formal Complaint did not occur in the United States or did not occur within BYU’s Education Program or Activity.

Other Formal Complaints of Sexual Harassment received by the Title IX Coordinator will be jointly evaluated by the Title IX Coordinator and the Integrity and Compliance Office to ensure the university provides an appropriate response under the Nondiscrimination and Equal Opportunity Policy, Personnel Conduct Policy, Church Educational System Honor Code, and other applicable policies and procedures of the university.

C. Sanctions

Sanctions for violating this policy may include the following:

  • For a faculty, athletic professional, staff, or administrative employee: verbal counseling, written warning, final written warning, probation, reassignment, demotion, reduction in pay, suspension, restriction on officially representing the university, termination of employment, and a ban from campus. Any disciplinary sanction imposed on an employee Respondent and the reason for the sanction may also be noted on the employee’s employment record.
  • For a student: notice, warning, probation, suspension withheld, short suspension, suspension, restriction on officially representing the university, expulsion, and a ban from campus. Any disciplinary sanction imposed on a student Respondent and the reason for the sanction may also be noted on the student’s academic transcript and Honor Code file. Any sanction imposed on a student Respondent may include an educational action plan prescribed and administered through the Honor Code Office. If the Respondent is a student employee, possible sanctions include all sanctions applicable to students and all sanctions applicable to employees.
  • For a Respondent who is neither a student nor an employee: limitation or termination of any agreement or association between the university and the Respondent and a temporary or complete ban of the Respondent from all or any part of the campus or other university property.

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IV. Overlapping Complaints and Concurrent Investigations or Processes

If the Sexual Harassment allegations arise out of the same facts or circumstances, the Title IX Coordinator may consolidate Formal Complaints against more than one Respondent, by more than one Complainant against one or more Respondents, or by one Party against the other Party.

Likewise, if a Formal Complaint includes multiple allegations of Sexual Harassment that do not arise out of the same facts or circumstances or that are not subject to discipline under the same university policies or procedures, the university may address them separately. And if a Formal Complaint includes allegations of Sexual Harassment together with allegations of other misconduct or violations of university policy, the university may address the allegations of Sexual Harassment under the Sexual Harassment Grievance Procedures (Title IX) or the Sexual Harassment Grievance Procedures (Non-Title IX Sexual Violence) and may refer allegations not subject to these procedures to the appropriate office or unit of the university, subject to any applicable confidentiality provisions and amnesty protections, which will still be in force.

The Title IX Coordinator will provide written notice to all affected Parties of any decision to consolidate the allegations in any Formal Complaint(s) or to address them separately.

An investigation or resolution of a Formal Complaint will not be suspended pending the conclusion of a criminal investigation or any other investigation, including another university investigation. However, the fact-finding portion of the investigation may be delayed temporarily to comply with a law enforcement request for cooperation (e.g., to allow for criminal evidence collection) when the criminal charges are based on the same allegations that are being investigated under these procedures. In addition, if the university determines the issues raised in a Formal Complaint may be relevant to its determination in another investigation or another process that is simultaneously pending at the university, the other investigation or process may be suspended until this process and any appeal are concluded.

Although the findings and conclusions of one investigation will not necessarily determine the outcome of any other, any information or findings developed in any university or external investigation may be shared with and considered in any other university investigation.


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V. Informal Resolution

The Parties may resolve a Formal Complaint through an informal resolution process that allows the Parties to forego all or some of the formal grievance process. The goal of informal resolution is to conclude the matter to the satisfaction of the Parties quickly and confidentially and to protect the safety of all Parties and the university’s educational environment.

Either Party may ask the Title IX Coordinator to facilitate an informal resolution process at any time before a Respondent is determined to be responsible for Sexual Harassment; however, the university will not offer or facilitate an informal resolution process until

  • a Formal Complaint has been filed;
  • all Parties have received a written notice of allegations; and
  • all Parties have provided their voluntary, written consent to the informal resolution process.

Informal resolution may encompass a broad range of conflict resolution strategies, including but not limited to arbitration, mediation, restorative justice, or any other process acceptable to the Parties and the university.

Participation in an informal resolution process is never required as a condition of enrollment or employment or as a precondition to any Party’s right to an investigation and adjudication of Formal Complaints of Sexual Harassment or any other right provided as part of the formal resolution provisions set forth in these procedures. At any time prior to signing a written agreement of informal resolution, a Party may withdraw from the informal resolution process and resume the Formal Complaint resolution process described in these procedures. The university will not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

Parties who reach an informal resolution must sign a written agreement documenting the terms and conditions for dismissing the Complainant’s Formal Complaint and releasing the Parties’ claims against each other and against the university based on the allegations in the Formal Complaint and notice of allegations. The written agreement of informal resolution must also be approved and signed by the Title IX Coordinator or by her or his designee.

The Title IX Coordinator will ensure that any person who facilitates an informal resolution process does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent, and is trained as set forth below.


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VI. Confidentiality, Nonretaliation, Amnesty, and Leniency

BYU exists to provide an educational environment consistent with the ideals and principles of the restored gospel of Jesus Christ. The Church Educational System Honor Code and its observance by the campus community are essential components of BYU’s mission. The university will not tolerate Sexual Harassment, and anyone found to have committed Sexual Harassment is not entitled to amnesty.

Being a victim of Sexual Harassment is never a violation of the Church Educational System Honor Code. The university strongly encourages the reporting of all incidents of Sexual Harassment to the Title IX Coordinator so that Supportive Measures can be offered to Complainants and Sexual Harassment can be prevented and addressed.

A. Confidentiality

The university recognizes that Complainants or witnesses of Sexual Harassment might be hesitant to report an incident to university officials if they fear the discovery of honor code violations, such as alcohol use, drug use, or consensual sexual activity outside of marriage. To help address this concern and to encourage the reporting of Sexual Harassment, the Title IX Office will not share the identity of a Complainant or witness with the Honor Code Office unless requested by such person or a person’s health or safety is at risk.

Further, the university will keep confidential the identity of any individual who has made a report or filed a Formal Complaint of Sexual Harassment, any Complainant, any individual who has been reported to be a perpetrator of Sexual Harassment, any Respondent, and any witness; except as required by law, as necessary to carry out this policy, or as may be permitted by the Access to Student Records Policy.

B. Nonretaliation

BYU prohibits retaliation by anyone, including any university disciplinary office. Retaliation means intimidation, a threat, coercion, or discrimination—including discipline of an individual for honor code violations that do not involve Sexual Harassment but arise out of the same facts or circumstances as a report of Sexual Harassment—for the purpose of interfering with any right or privilege secured by this policy or because the individual has made a report or complaint, testified, or assisted or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. However, the university may discipline an employee who is a mandatory reporter under this policy and fails or refuses to forward a complaint of Sexual Harassment or provide relevant information to the Title IX Office in violation of this policy.

Any materially adverse action or course of conduct taken against a person could be the basis for a retaliation claim if the conduct would deter a reasonable person from complaining about Sexual Harassment, but normally, petty slights, minor annoyances, and simple lack of good manners will not create that deterrence and are insufficient to establish a retaliation claim.

BYU students and personnel agree to be honest as part of their commitment to live by the Church Educational System Honor Code and Personnel Conduct Policy. Making a materially false statement in bad faith during a grievance proceeding is grounds for discipline. Imposing discipline, or filing reports seeking to impose discipline, for such a false statement does not constitute retaliation prohibited under this policy. However, a university determination that the Respondent was or was not responsible for Sexual Harassment, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. For example, the fact that a Respondent who denies his or her responsibility for Sexual Harassment is determined to be responsible for the Sexual Harassment does not necessarily mean that the Respondent has made a materially false statement in bad faith. Likewise, a determination that a Respondent is not responsible for Sexual Harassment, as alleged by a Complainant, does not necessarily mean that the Complainant’s allegation was a materially false statement made in bad faith.

Individuals who feel they have been subjected to retaliation under this policy should report the incident to the Title IX Coordinator, who will address the report in accordance with the Discrimination Complaint Procedures.

C. Amnesty

Anyone, including a Complainant, who reports an incident of Sexual Harassment will not be disciplined by the university for any related honor code violation arising out of the same facts or circumstances as the report unless a person’s health or safety is at risk. Students may be entitled to additional amnesty under certain circumstances, as provided by the Utah Campus Sexual Violence Act. However, with Complainants or witnesses who have violated the honor code, the university may offer and encourage support, counseling, or education efforts to help students and benefit the campus community.

D. Leniency

To encourage the reporting of Sexual Harassment, the university will also offer leniency to Complainants and witnesses for other honor code violations that are not related to the incident but which may be discovered as a result of the investigatory process. Such violations will generally be handled so that the student can remain in school while appropriately addressing these concerns.

In applying these principles, the university may consider the facts and circumstances of each case, including the rights, responsibilities, and needs of each of the involved individuals.


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VII. Training

The university is committed to educating members of the campus community on Sexual Harassment prevention and response. Training on this policy will be required for all personnel. All administrators, deans, chairs, directors, managers, and supervisors are responsible to ensure that personnel within their areas of stewardship are properly trained on their obligations under this policy and applicable laws.

The Title IX Coordinator will ensure that all individuals involved in administering the Sexual Harassment Grievance Procedures (Title IX) receive training on the following:

  • the definition of Sexual Harassment;
  • the scope of BYU’s Education Program or Activity;
  • how to conduct an investigation and grievance process, including hearings, appeals, and informal resolution processes, as applicable;
  • how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.

Training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of Formal Complaints of Sexual Harassment.

Those involved in administering the Sexual Harassment Grievance Procedures (Non-Title IX Sexual Violence) will receive annual training on the issues related to Sexual Violence and how to conduct an investigation and decision-making process that protects the safety of victims and promotes accountability.


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VIII. Disclosing Relationships

To avoid the possibility or appearance of Sexual Harassment, personnel and students should avoid dating, romantic, or amorous relationships where a power differential exists. Examples of these relationships include, but are not limited to, a professor or teaching assistant involved in a relationship with his or her student, or a supervisor involved in a relationship with a subordinate employee. If a relationship exists and both parties want to continue the relationship, the supervisor(s) of both parties must be informed of the relationship, must document the disclosure of the relationship, and must confirm with each of the parties independently that the relationship is voluntary and not unwelcome to either party. However, as a general rule, dating, romantic, or amorous relationships should not be entered into or continued while one individual in the relationship has the power to either reward or penalize the other in work or in school.