Accommodation of Disabilities (Students and Employees)
Sexual Misconduct (Harassment, Non-Consensual Contact, Exploitation, etc.)
Other Civil Rights Offenses (Threatening, Hazing, Bullying, Stalking, etc.)
Confidentiality (and reporting offenses)
1. Policy on Nondiscrimination
Augustana adheres to all federal and state civil rights laws banning discrimination in institutions of higher education.
Augustana is committed to providing equal access to and participation in employment opportunities and in programs and services, without regard to race, color, religion, creed, sex, pregnancy, sexual orientation, gender identity, genetic information, national origin, ancestry, age, veteran status, or disability. Augustana complies with Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act, and other applicable laws providing for nondiscrimination against all individuals. Augustana will provide reasonable accommodations for known disabilities to the extent required by law.
This policy covers nondiscrimination in employment and in access to educational opportunities. Therefore, any member of the campus community, guest or visitor who acts to deny, deprive or limit the educational, employment, residential and/or social access, benefits and/or opportunities of any member of the campus community on the basis of their actual or perceived membership in the protected classes listed above is in violation of Augustana policy on nondiscrimination. When brought to the attention of Augustana, any such discrimination will be appropriately remedied by Augustana according to the procedures below. This Policy is not intended to create a contract between Augustana University and any other person.
Inquiries or concerns should be directed to: Beth Elam, Title IX Coordinator & Assistant Dean of Students, Dean of Students Office — Edith Mortenson Center #116, 605.274.4124, belam@augie.edu, www.augie.edu/titleix
2. Policy on Accommodation of Disabilities
Augustana is committed to full compliance with the Americans With Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws pertaining to individuals with disabilities. Under the ADA and its amendments, a person has a disability if they have a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment or who are regarded as disabled by the institution whether qualified or not. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating, working, sitting, reaching, walking, performing manual tasks, interacting with others, or caring for oneself.
The Director of Student Academic Support Services has been designated as the ADA/504Coordinator responsible for coordinating efforts to comply with these disability laws, including investigation of any grievance alleging noncompliance.
a. Students with Disabilities – Augustana is committed to providing qualified students with disabilities with reasonable accommodations and support needed to ensure equal access to the academic programs and activities of .
All accommodations are made on a case-by-case basis. A student requesting any accommodation should first contact the Director of Student Academic Support Services who coordinates services for students with disabilities. The director reviews documentation provided by the student and, in consultation with the student, determines which accommodations are appropriate to the student’s particular needs and academic programs.
b. Employees with Disabilities – Pursuant to the ADA, Augustana will provide reasonable accommodation(s) to all qualified employees with known disabilities, where their disability affects the performance of their essential job functions, except where doing so would be unduly disruptive or would result in undue hardship.
An employee with a disability is responsible for requesting an accommodation in writing to the Human Resources Office and provide appropriate documentation. The Human Resources Office will work with the employee’s supervisor to identify which essential functions of the position are affected by the employee’s disability and what reasonable accommodations could enable the employee to perform those duties.
3. Policy on Discriminatory Harassment
Students, faculty and staff are entitled to a working environment and educational environment free of discriminatory harassment. Augustana’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive subject matters protected by academic freedom. The sections below describe the specific forms of legally prohibited harassment that are also prohibited under this policy.
a. Discriminatory and Bias-Related Harassment – Harassment constitutes a form of discrimination. Augustana will remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a hostile environment. When harassment rises to the level of creating a hostile environment, Augustana may also impose sanctions on the harasser. This harassment policy explicitly prohibits any form of harassment, defined as unwelcome conduct on the basis of actual or perceived membership in a protected class, by any member or group of the community.
A hostile environment may be created by oral, written, graphic, or physical conduct that is sufficiently severe, persistent/pervasive and objectively offensive that it interferes with, limits or denies the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits or opportunities.
Offensive conduct and/or harassment that does not rise to the level of discrimination or that is of a generic nature not on the basis of a protected status may not result in the imposition of discipline under this policy, but will be addressed through civil confrontation, remedial actions, education and/or effective conflict resolution mechanisms. For assistance with conflict resolution techniques, faculty and staff personnel should contact the Title IX Coordinator or a confidential resource (refer to Section 8a. Policy on Confidentiality – Confidential Reporting, page 8).
Augustana condemns and will not tolerate discriminatory harassment against any student, employee, visitor or guest on the basis of any status protected by Augustana policy or law.
4. Policy on Sexual Harassment
The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of South Dakota regard Sexual Harassment, a specific form of discriminatory harassment, which consists not only of employer and employees, but of students as well.
Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.
Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:
Quid Pro Quo:
an employee of Augustana University,
conditions the provision of an aid, benefit, or service of the recipient,
on an individual’s participation in unwelcome sexual conduct; and/or
Sexual Harassment:
unwelcome conduct,
determined by a reasonable person,
to be so severe, and
pervasive, and,
objectively offensive,
that effectively denies a person equal access to Augustana’s education
Sexual Assault, defined as:
Sex Offenses, Forcible:
Any sexual act directed against another person,
without the consent of the Complainant,
including instances in which the Complainant is incapable of giving consent
Forcible Rape:
Penetration,
no matter how slight,
of the vagina or anus with any body part or object, or
oral penetration by a sex organ of another person,
without the consent of the Complainant
Forcible Sodomy:
Oral or anal sexual intercourse with another person,
forcibly,
and/or against that person’s will (non-consensually),
or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
Sexual Assault with an Object:
The use of an object or instrument to penetrate,
however slightly,
the genital or anal opening of the body of another person,
forcibly,
and/or against that person’s will (non-consensually).
or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
Forcible Fondling:
The touching of the private body parts of another person (buttocks, groin, breasts),
for the purpose of sexual gratification,
forcibly,
and/or against that person’s will (non-consensually),
or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
Sex Offenses, Non-Forcible:
Incest:
Non-forcible sexual intercourse,
between persons who are related to each other,
within the degrees wherein marriage is prohibited by South Dakota law.
Statutory Rape:
Non-forcible sexual intercourse,
with a person who is under the statutory age of consent of 16 years old (as defined in South Dakota state law).
Dating Violence, defined as:
violence,
on the basis of sex,
committed by a person,
who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition: dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse and does not include acts covered under the definition of domestic violence.
Domestic Violence, defined as:
violence,
on the basis of sex,
committed by a current or former spouse or intimate partner of the Complainant,
by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
by a person similarly situated to a spouse of the Complainant under the domestic or family violence law of South Dakota, or
by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of South Dakota.
Stalking, defined as:
engaging in a course of conduct,
on the basis of sex,
directed at a specific person, that
would cause a reasonable person to fear for the person’s safety, or
the safety of others; or
suffer substantial emotional distress.
For the purposes of this definition - course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
b. Consensual Relationship: Required Reporting – There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of sexual harassment.
Augustana does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with Augustana’s goals and policies. For the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student, supervisor-supervisee) are generally discouraged. Consensual romantic or sexual relationships in which there are power differentials must be reported to Augustana’s Title IX Coordinator for evaluation under this policy.
Consensual, romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in consensual romantic or sexual relationships must bring those relationships to the timely attention of the Title IX Coordinator, and will likely result in the necessity to remove the employee from the supervisory or evaluative responsibilities, or shift the student out of being supervised or evaluated by someone with whom the student has established a consensual relationship. This includes Resident Advisors (RAs) and students over whom they have direct responsibility.
Failure to self-report such relationships as required can result in disciplinary action and a “consensual relationship” will not be an acceptable defense.
iv. Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.
A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy.
It is not an excuse that the individual accused of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.
Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint and/or from the taking of incapacitating drugs.
Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent.
A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.
In the State of South Dakota, a minor (meaning a person under the age of 16 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 16 years old is a crime, as well as a violation of this policy, even if the minor consents to engage in the act.
5. Policy Statements on other Civil Rights Offenses (when the act is based upon the status of a protected class)
a. Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse or Non-Consensual Sexual Contact. Examples of sexual exploitation include, but are not limited to:
Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed).
Taking pictures or video or audio recording another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent).
Prostitution.
Sexual exploitation also includes engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.
b. Threatening or causing physical harm, extreme verbal abuse or other conduct which threatens or endangers the health or safety of any person on the basis of their actual or perceived membership in a protected class.
b. Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of their actual or perceived membership in a protected class.
c. Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another on the basis of actual or perceived membership in a protected class.
d. Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the campus community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the hazing policy) on the basis of actual or perceived membership in a protected class; hazing is also illegal under South Dakota State law and prohibited by Augustana policy.
e. Bullying, cyber-bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally on the basis of actual or perceived membership in a protected class.
f.. Any other rules, when a violation is motivated by the actual or perceived membership of the victim on the basis of sex or gender or in a protected class, may be pursued using this policy and process.
Sanctions for the above-listed “Other Civil Rights Behaviors” behaviors range from reprimand up through and including expulsion (students) or termination of employment.
Retaliation is defined as any adverse action taken against a person participating in a protected activity because of their participation in that protected activity. Augustana prohibits any retaliation against any person making a report or against any person cooperating in the investigation of an incident including witnesses. Retaliation includes intimidation, threats, or harassment. Acts of alleged retaliation should be reported immediately and will be promptly investigated. Augustana is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.
7. Policy on Confidentiality & Reporting of Offenses
Augustana is committed to the highest ethical and professional standards of conduct and to the safety and well-being of all members of our community. To achieve this goal, Augustana expects and relies on each member of the community to report actual or suspected violations of federal or state laws, violations of Augustana policy or procedures, or other suspected wrongdoings. This includes reports from students, third-parties, and/or anonymous sources. The following describes the reporting options at Augustana.
a. Confidential Reporting – If a reporting party would like the details of an incident to be kept confidential, the reporting party may speak with on-campus counselors, campus clinic providers, campus pastors, violence prevention coordinator, off-campus local rape crisis counselors, domestic violence resources and local or state assistance agencies, who will maintain confidentiality except in extreme cases of immediacy of threat or danger or abuse of a minor. Campus counselors are available for students and the Employee Assistance Program is available for employees free of charge and can be seen on an emergency basis twenty-four hours a day/seven days a week. These employees will submit anonymous statistical information for Title IX tracking and Clery Act purposes unless they believe it would be harmful to their client, patient or parishioner.
b. Mandatory Reporting Options – Augustana employees have a Duty to Report, unless they fall under the section above. Parties making a report may want to consider carefully whether they share personally identifiable details with non-confidential employees, as those details must be shared by the employee with the Title IX Coordinator and/or Deputy Coordinators. Otherwise, employees must share all details of the reports they receive. If a reporting party does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a formal resolution to be pursued, the reporting party may make such a request to the Title IX Coordinator or Deputy Coordinators, who will evaluate that request in light of the duty to ensure the safety of the campus and comply with federal law.
In cases indicating pattern, predation, threat and/or violence, Augustana will be unable to honor a request for confidentiality. In cases where the victim requests confidentiality and the circumstances allow Augustana to honor that request, Augustana will offer supportive measures to the victim and the community, but will not otherwise pursue formal action. A reporting party has the right, and can expect, to have reports taken seriously by Augustana when formally reported, and to have those incidents investigated and properly resolved through these procedures. Formal reporting still affords privacy to the reporter, and only a small group of officials who need to know will be told, including but not limited to: Title IX Coordinator, Deputy Coordinators, Hearing Panel members and Investigator. Information will be shared as necessary with investigators, witnesses and the responding party. The circle of people with this knowledge will be kept as tight as possible to preserve a reporting party’s rights and privacy. Additionally, anonymous reports can be made by victims and/or third parties using the online reporting form posted at www.augie.edu/sexualmisconduct. Note that these anonymous reports may prompt a need for Augustana to investigate.
8. Policy on Federal Requirement for Timely Warnings
Parties reporting sexual assault, domestic violence, dating violence, and/or stalking should be aware that under the Clery Act, Augustana administrators must issue timely warnings for incidents reported to them that pose a substantial threat of bodily harm or danger to members of the campus community. Augustana will make every effort to ensure that a Complainant’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.
[5]Some examples of Consent include:
1) Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him an “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn’t want it, she could have left. Bill is responsible for violating the University Non-Consensual Sexual Contact policy. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.
2) Kevin and Amy are at a party. Kevin is not sure how much Amy has been drinking, but he is pretty sure it’s a lot. After the party, he walks Amy to her room, and Amy comes on to Kevin, initiating sexual activity. Kevin asks her if she is really up to this, and Amy says yes. Clothes go flying, and they end up in Amy’s bed. Suddenly, Amy runs for the bathroom. When she returns, her face is pale, and Kevin thinks she may have thrown up. Amy gets back into bed, and they begin to have sexual intercourse. Kevin is having a good time, though he can’t help but notice that Amy seems pretty groggy and passive, and he thinks Amy may have even passed out briefly during the sex, but he does not let that stop him. When Kevin runs into Amy the next day, he thanks her for the wild night. Amy remembers nothing, and decides to make a complaint to the Dean. This is a violation of the Non-Consensual Sexual Intercourse Policy. Kevin should have known that Amy was incapable of making a rational, reasonable decision about sex. Even if Amy seemed to consent, Kevin was well aware that Amy had consumed a large amount of alcohol, and Kevin thought Amy was physically ill, and that she passed out during sex. Kevin should be held accountable for taking advantage of Amy in her condition. This is not the level of respectful conduct expected of students.