Formal resolution of a report under the Sexual Misconduct Policy will occur through an Administrative Review by the appropriate divisional supervisor (or their designee) or the Manager of Employee and Labor Relations. Administrative Review is not a formal hearing, but involves an assessment of evidence gathered in the investigation to determine if a college policy was violated, and if so, what sanctions are appropriate.
Administrators who make determinations in reports of sexual- and or gender-based harassment, discrimination and violence, including sexual violence, stalking, and intimate partner violence, must participate in annual training on non-discrimination; the dynamics of sexual- and or gender-based harassment, discrimination and violence, including sexual violence, stalking, and intimate partner violence; the factors relevant to a determination of credibility; the appropriate manner in which to receive and evaluate sensitive information; the manner of deliberation; evaluation of consent and incapacitation; the application of the preponderance of the evidence standard; sanctioning and the college’s policies and procedures. The training will be coordinated by the Title IX Coordinator in conjunction with campus and external partners.
Administrative Review is designed to provide a timely, fair, and equitable consideration of the findings of the investigation. The following guidelines apply to the review process:
1. Notice of Charges
Following the threshold determination that there is sufficient information to move forward with an Administrative Review, the administrator who will conduct the review (called the Review Administrator) will send a Notification Letter to both the Reporting Party and the Responding Party. The Notification Letter provides each party with a brief summary of the conduct at issue and the specific policy violation(s) that are alleged to have taken place.
Multiple reports may be consolidated against a Responding Party in a single Administrative Review, if the evidence related to each incident would be relevant and probative in reaching a determination on the other incident. Matters may be consolidated where they involve multiple Reporting Parties, multiple Responding Parties, or related conduct that would regularly have been heard under other professional misconduct processes.
If the Reporting Party and Responding Party have questions about process, they may consult the Title IX Coordinator, who does not play a formal role in the review.
2. Review Administrator
The Notification Letter will also provide the name of the Review Administrator. The parties may submit a written request to the Title IX Coordinator to request recusal of the Review Administrator on the basis of bias, conflict of interest or an inability to be fair and impartial. The written request must clearly articulate the grounds for recusal. The Review Administrator will not be removed in the absence of clear evidence of bias, conflict of interest or an inability to be fair and impartial.
3. Acceptance of Responsibility
If a Responding Party wishes to accept responsibility for the charges, they may provide the Review Administrator with a written acceptance of the facts of the allegation. In this instance, the role of the Administrative Review will be solely to determine appropriate sanctions. The investigative report will serve as the primary evidence in making this determination.
4. Evidence and Witnesses
Both parties will be afforded similar and timely access to any documents and information used in the Administrative Review.
The Review Administrator will receive all relevant information acquired through the investigation, including written statements, documents, items, or investigative interviews with the parties or witnesses.
The Review Administrator will, in ordinary circumstances, meet with and ask questions directly of the Reporting Party and the Responding Party. The Review Administrator may also seek evidence or contact witnesses, whether or not the evidence was previously included or the witnesses were previously interviewed as part of the college’s investigation. In general, witnesses must have observed the conduct in question or have information relevant to the incident and cannot be called solely to speak about an individual's character.
5. Prior Sexual History and or Pattern Evidence
Prior Sexual History of a Reporting Party: In general, a Reporting Party's prior sexual history, character or reputation is not relevant and will not be reviewed as evidence. Where there is a current or ongoing relationship between the Reporting Party and the Responding Party, and the Responding Party alleges consent, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. As noted in other sections of this policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Any prior sexual history of the Reporting Party with other individuals is typically not relevant and will not be included in the review. In addition, prior sexual history may be considered under very limited circumstances to explain injury or demonstrate motive or intent.
Pattern Evidence by a Responding Party: Where there is evidence of a pattern of conduct similar in nature by the Responding Party, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be deemed relevant and probative to the Review Administrator's determination of responsibility and or assigning of a sanction. The determination of relevance will be based on an assessment of whether the previous incident was substantially similar to the conduct cited in the report and indicates a pattern of behavior and substantial conformity with that pattern by the Responding Party. Pattern evidence may also be relevant to prove intent, state of mind, absence of mistake or identity. Where there is a prior finding of responsibility for a similar act of sexual misconduct, there is a presumption of relevance and the finding may be considered in making a determination as to responsibility and or assigning of a sanction.
6. Determination of Responsibility
After the Review Administrator has received all investigative information and any other information or witness statements requested, the Review Administrator will reach a determination as to whether a violation of college policy occurred by a preponderance of the evidence. This standard means that the Review Administrator will decide whether it is more likely than not, based upon all of the relevant information, that the Responding Party is responsible for the alleged violation.
If the Review Administrator finds the Responding Party responsible, the Review Administrator will then determine appropriate sanctions. The Review Administrator will document the findings and the sanction in writing. This report will be provided to the Title IX administrator for institutional record-keeping purposes.
A Review Administrator that finds a Responding Party responsible for a violation of this policy may impose appropriate sanctions that may include, but are not limited to, those set forth below. Sanctions may be issued individually, or a combination of sanctions may be imposed. The Review Administrator will allow the Reporting Party and Responding Party to present a written statement about impact and or request sanctions before determining any sanctions.
- Any employee who is determined to have committed sexual assault will likely receive the sanction of termination.
- Any employee who is determined to have committed non-consensual sexual contact or any other prohibited form of conduct may receive a sanction ranging from a conduct warning to termination.
The Review Administrator may deviate from the range of recommended sanctions, based upon a full consideration of the following factors:
- the impact of the conduct on the Reporting Party;
- the impact of the conduct on the community, its members, or college property;
- the nature and violence of the conduct at issue;
- prior misconduct by the Responding Party, including the Responding Party's prior discipline or criminal history, both at the college or elsewhere, if known
- whether the Responding Party has accepted responsibility for their actions;
- how the college has sanctioned similar incidents in the past, based upon information about such similar incidents that the Title IX coordinator will provide upon request;
- maintenance of a safe and respectful environment conducive to learning;
- protection of the college community; and,
- any other mitigating, aggravating or compelling circumstances in order to reach a just and appropriate resolution in each case.
The Review Administrator may also consider educational strategies that, taking into account the impact on the Reporting Party and the safety of the community as a whole, allows a Responding Party to learn about the origins of their behavior, their responsibility for this behavior, and how they can change this behavior. Such strategies may be suggested in addition to, but not in place of, the recommended sanctions.
The Review Administrator will consult with the Title IX Coordinator in advance of a final decision in order to take reasonable steps to foster consistency for similar violations and circumstances.
The Review Administrator may also consider remedies for the Reporting Party and remedies for the Oberlin community. On the conclusion of the hearing, the Title IX Coordinator is responsible for reviewing, adjusting, and implementing these remedies.
Sanctions that may be imposed under this policy include, but are not limited to, the following:
- Warning: Notice, in writing, that continuation or repetition of prohibited conduct may be cause for additional disciplinary action.
- Censure: A written reprimand for violating employee standards or other college policy. This conduct status specifies a period of time during which the employee's good standing with the college may be in jeopardy. The party is officially warned that continuation or repetition of prohibited conduct may be cause for additional conduct action including probation, suspension, or termination from the college.
- Training: A requirement that the employee receive specific training within a designated time period and at their own expense to prevent further misconduct or discrimination or harassment. Failure to submit documentation of completion of the training within the specified time period may lead to further disciplinary action.
- Disciplinary Probation: Exclusion from participation in voluntary activities that are not related to core job responsibilities for a specified period of time. Additional restrictions or conditions may also be imposed. Violations of the terms of disciplinary probation or any other college policy violations may result in further disciplinary action.
- Restitution: Repayment to an affected party, including the college, for damages resulting from a violation of this policy.
- Suspension: For employees, suspension may mean a specified period of removal from some or all duties, with or without pay. Notice of this action will remain in the employment record. Conditions for return to work may be specified in the suspension notice.
- Termination: Permanent separation of the employee from the college.
- Other sanctions may be imposed instead of, or in addition to, those specified here. More than one of the sanctions listed above may be imposed for any single violation.
The Review Administrator may also recommend remedies for the Reporting Party and remedies for the Oberlin community. On the conclusion of the hearing, the Title IX Coordinator is responsible for reviewing, adjusting, and implementing these remedies in order to eliminate the hostile environment and prevent its recurrence.
The Review Administrator will issue an outcome letter simultaneously and in writing to the Reporting Party and Responding Party with the finding and any sanctions.
The letter to each party will include the outcome and the rationale for the outcome. It will also set forth each party's appeal rights, including the time frame for submitting an appeal. Any change in the outcome before it becomes final will also be communicated to the parties in writing.
For reports involving sexual violence, the Reporting Party will be fully informed of any sanctions. For all other reports under this policy, the Reporting Party will be informed of only those sanctions that directly relate to the Reporting Party, consistent with all applicable law.
Sanctions imposed are implemented immediately unless a divisional supervisor (or their designee) stays implementation in extraordinary circumstances, pending the outcome of the appeal.
Either party may appeal the outcome letter in writing to the Review Administrator, who will refer the appeal to a divisional supervisor (or their designee) or the Manager of Employee and Labor Relations. This person will serve as the Appeals Officer and must not have participated in the investigation and or Administrative Review of the original case. The appeal must be filed in writing within five business days of receiving the written outcome. The appeal shall consist of a plain, concise and complete written statement outlining the grounds for appeal and all relevant information to substantiate the basis for the appeal.
The Reporting Party and or Responding Party may appeal only the parts of the outcome directly relating to themselves. Dissatisfaction with the outcome is not grounds for appeal. The only grounds for appeal are:
- A procedural or substantive error occurred that significantly affected the outcome (e.g. substantiated bias, material deviation from established procedures, etc.).
- New evidence, unavailable during the original investigation and or Administrative Review despite the reasonable efforts of the party, that could substantially impact the original finding or sanction (a summary of this new evidence and its potential impact must be included).
- Sanctions were significantly disproportionate to the violation.
The receipt of the appeal will be acknowledged in writing (which can include email). The written appeal document will be shared with the other party, and the other party will be given the opportunity to respond in writing should they choose to do so. Any response must be submitted to the Appeals Officer within 3 business days from receipt of the appeal. The appeals documents from each party will be considered together in one appeal review process.
In any request for an appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanction are presumed to have been decided reasonably and appropriately. The Appeals Officer shall first consider whether the appeal is timely filed and if so, whether the appeal is properly framed based on the three grounds. If the Appeals Officer determines that the appeal does not properly fit within one of the three grounds, the appeal will be denied.
If the appeal is based on procedural or substantive error, the Appeals Officer may return the report to the original Review Administrator with instructions to cure the error, or in rare cases where the error cannot be cured, the Appeals Officer can ask that a new Administrative Review occur before an alternate Review Administrator. In the case of new and relevant information, the Appeals Officer can recommend that the case be returned to the original Review Administrator to assess the weight and effect of the new information and render a determination after considering the new facts. The reconsideration of the Review Administrator is final.
Appeals are not intended to be full rehearing of the report. In most cases, appeals are confined to a review of the written documentation or record of the original hearing, and pertinent documentation regarding the grounds for appeal. This is not an opportunity for the Appeals Officer to substitute their judgment for that of the original hearing body merely because they disagree with its finding and or sanctions. Appeals decisions are to be deferential to the original administrative review, making changes to the finding only where at least one of the three specified grounds for appeal is established. The Appeals Officer can affirm or alter the original findings, depending on the basis of the requested appeal.
Sanctions imposed are implemented immediately unless the Appeals Officer stays implementation in extraordinary circumstances, pending the outcome of the appeal. In cases where the appeal results in reinstatement to the institution or of privileges, all reasonable attempts will be made to restore the party to their prior status, recognizing that some opportunities lost may be irretrievable in the short term.
The Appeals Officer will render a written decision on the appeal simultaneously to the Reporting Party and Responding Party within 15 business days from the date of the submission of all appeal documents by both parties. Appeal decisions are final.
The Title IX Coordinator will retain records of all reports, regardless of whether the matter is resolved by means of Title IX assessment, informal resolution or formal resolution. Reports resolved by means of Title IX assessment or informal resolution are not part of an employee's personnel record.
Affirmative findings of responsibility in matters resolved through formal resolution are part of an employee's personnel record. Such records shall be used in reviewing any further conduct, or developing sanctions, and shall remain a part of an employee's personnel record. When there is a finding of responsibility, the college may elect at its discretion to share this information in a reference or letter of recommendation or a request for verification of employment.