Informing and Protecting Our Community:
Sexual Harassment, Discrimination &
Retaliation
Michelle Tapper
Title IX Administrator/Compliance Officer
Labor & Employee Relations and Compliance
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Agenda
1. Title IX (discrimination of students on the
basis of sex)
A.
Executive Order 1095
B.
Executive Order 1097
2. Discrimination, Harassment,
& Retaliation (employees, third parties and
students)
A.
B.
Executive Order 1096
Executive Order 1097
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Title IX
• Title IX of the Education Amendments of 1972
(“Title IX”)
• Violence Against Women Reauthorization Act of
2013 (“VAWA”)
• Jeanne Clery Disclosure of Campus Security and
Campus Crimes Statistics Act (“Clery Act”)
• Campus Sexual Violence Elimination Act
(“Campus SaVE Act”)
• Title IV of the 1964 Civil Rights Act
• California Equity in Higher Education Act
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Title IX
Executive Order 1095
http://www.calstate.edu/eo/EO-1095-rev-6-2315.html
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Title IX
Title IX is a federal law prohibiting discrimination
on the basis of sex in an educational institution’s
academic, extracurricular and athletic activities.
Protects all, regardless of gender or gender
identity, from sexual harassment and violence,
which are forms of sex discrimination.
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Title IX
Title IX requires the University to train the
campus community on how to prevent, identify,
and report harassment/violence.
TIX Online Training: Eliminate Campus Sexual
Violence (CSU) – Will complete during the last
segment of NEO
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Title IX
Most University Employees have a duty to report Sex
Discrimination, Sexual Harassment, Sexual Misconduct,
Dating and Domestic Violence, and Stalking incidents
when they are aware of them.
When a victim tells the Title IX Coordinator or another
University Employee about a Sexual Misconduct, Dating
or Domestic Violence, or Stalking incident, the victim has
the right to expect the University to take immediate and
appropriate steps to investigate what happened and to
resolve the matter promptly and equitably.
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Title IX
“Most”
Privileged and Confidential Communications
All University employees except:
• Physicians
• Licensed counselors
• Sexual assault counselors and advocates
• Police officers in certain incidents
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Title IX
Sexual Harassment, a form of Sex Discrimination, is unwelcome verbal,
nonverbal or physical conduct of a sexual nature that includes but is not
limited to sexual advances, requests for sexual favors, and any other
conduct of a sexual nature where:
• Submission to, or rejection of, the conduct is explicitly or implicitly used as the
basis for any decision affecting a Complainant’s academic status or progress,
or access to benefits and services, honors, programs, or activities available at
or through the University; or
• The conduct is sufficiently severe, persistent or pervasive that its effect,
whether or not intended, could be considered by a reasonable person in the
shoes of the Complainant, and is in fact considered by the Complainant, as
limiting his or her ability to participate in or benefit from the services,
activities or opportunities offered by the University; or
• The conduct is sufficiently severe, persistent or pervasive that its effect,
whether or not intended, could be considered by a reasonable person in the
shoes of the Complainant, and is in fact considered by the Complainant, as
creating an intimidating, hostile or offensive environment.
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Title IX
Sexual Misconduct: All sexual activity between
members of the CSU community must be based on
Affirmative Consent. Engaging in any sexual activity
without first obtaining Affirmative Consent to the
specific activity is Sexual Misconduct, whether or
not the conduct violates any civil or criminal law.
Sexual Assault is a form of Sexual Misconduct and
is an attempt, coupled with the ability, to commit a
violent injury on the person of another because of
that person’s Gender or sex
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Title IX
• Sexual Battery is a form of Sexual Misconduct and is
any willful and unlawful use of force or violence upon
the person of another because of that person’s Gender
or sex as well as touching an intimate part of another
person against that person’s will and for the purpose of
sexual arousal, gratification, or abuse.
• Rape is a form of Sexual Misconduct and is nonconsensual sexual intercourse that may also involve the
use of threat of force, violence, or immediate and
unlawful bodily injury or threats of future retaliation
and duress.
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Title IX
• Acquaintance Rape is a form of Sexual Misconduct
committed by an individual known to the victim. This
includes a person the victim may have just met; i.e., at a
party, introduced through a friend, or on a social
networking website.
• Domestic Violence is abuse committed against someone
who is a current or former spouse; current or former
cohabitant; someone with whom the Respondent has a
child; someone with whom the Respondent has or had a
dating or engagement relationship; or a person similarly
situated under California domestic or family violence law.
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Title IX
• Dating Violence is abuse committed by a person who is
or has been in a social or dating relationship of a
romantic or intimate nature with the victim. This may
include someone the victim just met; i.e., at a party,
introduced through a friend, or on a social networking
website.
• Stalking means engaging in a repeated Course of
Conduct directed at a specific person that would cause
a Reasonable Person to fear for his/her or others’
safety or to suffer Substantial Emotional Distress.
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Title IX
Affirmative Consent means an informed, affirmative, conscious,
voluntary, and mutual agreement to engage in sexual activity. It is
the responsibility of each person involved in the sexual activity to
ensure that s/he has the Affirmative Consent of the other
participant(s) to engage in the sexual activity. Lack of protest or
resistance does not mean consent nor does silence mean consent.
– Affirmative Consent can be withdrawn or revoked. Affirmative
Consent cannot be given by a person who is incapacitated.
– A person with a medical or mental Disability may also lack the
capacity to give consent.
– Sexual activity with a minor (under 18 years old) is never
consensual because a minor is considered incapable of giving
legal consent due to age.
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Title IX
Affirmative Consent cannot be given by a person
who is incapacitated. A person is unable to
consent when s/he is asleep, unconscious or is
incapacitated due to the influence of drugs,
alcohol or medication so that s/he could not
understand the fact, nature or extent of the
sexual activity. A person is incapacitated if s/he
lacks the physical and/or mental ability to make
informed, rational decisions.
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Title IX – How to file a complaint
Title IX Coordinator
•
Lori Gentles – Vice President, Human Resources, Diversity and Inclusion
College Park – Suite 770
lgentles@fullerton.edu
657-278-2425
Title IX Administrator/Investigator
•
Michelle Tapper- Compliance Officer, Labor/Employee Relations and Compliance
College Park – Suite 760
mtapper@fullerton.edu
657-278-4207
Title IX Deputy Coordinator
•
Meredith Basil – Associate Athletics Director/SWA
Langsdorf Hall 209
mbasil@fullerton.edu
657-278-2648
Title IX Deputy Coordinator
•
Larry Martin – Director of Housing and Residential Life
CRH-Holly-162C
larrymartin@fullerton.edu
657-278-4380
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Title IX - Resources
ON-CAMPUS
• Confidential Counseling:
CAPS (Counseling and Psychological Services; 657-278-3040
• Confidential Support and Advocacy:
WoMen’s Center
657-278-3928
• University Police
911 or 657-278-2515; http://police.fullerton.edu
• Student Health Center
Monday thru Friday, 8 a.m. – 5 p.m.
657-278-2800; http://www.fullerton.edu/shcc/
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Title IX - Resources
OFF-CAMPUS
• 24-hour Rape Crisis Hotlines
714-957-2737 or 949-831-9110
• National hotline: RAINN 800-656-HOPE
(Rape Abuse and Incest National Network)
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Title IX - Resources
OFF-CAMPUS – Victim and Witness Services in
Orange County (restraining orders, restitution,
etc.)
Central Justice Center, 700 Civic Center Dr. West, Room 292, Santa Ana, CA 92701 714834-4350; 714-834-2688/fax
North Justice Center, 1275 N. Berkeley Ave., 4th Fl, Room 490, Fullerton, CA 92832,
714-773-4575; 714-441-3575/fax; Restitution: 714-773-4689
West Justice Center, 8141 13th St., Westminster, CA 92683, 714-896-7188, 714-8967526/fax
Harbor Justice Center, 4601 Jamboree Rd., Ste #103, Newport Beach, CA 92660, 949476-4855; 949-476-4949/fax
Lamoreaux Justice Center, 341 The City Drive, 4th Fl., Room 408, 714-935-7074; 714935-6341/fax
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Title IX - Resources
Myths and facts about Sexual Misconduct – Executive Order
1095 – Attachment B
http://www.calstate.edu/eo/EO-1095-rev-6-23-15.pdf
Topics include:
• What You Can Do To Help Stop Sexual Misconduct
• What You Can Do To Help Minimize Your Risk of Becoming a Victim
• What You Can Do If You Are a Victim, in General
• Common Myths and Facts about the Causes of Sexual Misconduct
• Sexual Misconduct - Risk Reduction Tips
• Rape, Acquaintance Rape, Sexual Assault, Sexual Battery
• Affirmative Consent
• What is Dating Violence or Domestic Violence?
• Types of Dating/Domestic Violence That Constitutes Sexual Misconduct
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Discrimination, Harassment and
Retaliation (DHR)
Systemwide Policy Prohibiting Discrimination,
Harassment, Retaliation, Sexual Misconduct, Dating
and Domestic Violence, and Stalking against
Employees and Third Parties and Systemwide
Procedure for Addressing Such Complaints by
Employees and Third Parties
Executive Order 1096 Revised June 23, 2015
http://www.calstate.edu/eo/EO-1096-rev-6-2315.html
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Discrimination, Harassment and
Retaliation (DHR)
Systemwide Policy Prohibiting Discrimination,
Harassment and Retaliation, Sexual Misconduct,
Dating and Domestic Violence, and Stalking
against Students and Systemwide Procedure for
Addressing Such Complaints by Students
Executive Order 1097 Revised June 23, 2015
http://www.calstate.edu/eo/EO-1097.html
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DHR – Policy Overview
•
California State University, Fullerton is committed to maintaining an inclusive
community that values diversity and fosters tolerance and mutual respect. We
embrace and encourage our community differences in Age, Disability, Gender,
Genetic Information, Nationality, Marital Status, Race or Ethnicity, Religion,
Sexual Orientation, and Veteran or Military Status. All individuals have the
right to participate fully in CSUF programs and activities free from
Discrimination, Harassment and Retaliation. The University will not tolerate
acts of discrimination or harassment based upon a protected status or
retaliation.
This policy extends to all employment practices, including recruitment, selection, hiring,
promotion, training, compensation, benefits, transfer, separation, and other terms, conditions, or
privileges of employment. It also includes full and equal accommodations, advantages, facilities,
privileges and services for all members of the campus community, as well as Third Parties.
•
•
•
Discrimination
Harassment
Retaliation
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DHR – Policy Overview
Prohibited Conduct. The CSU prohibits:
– Discrimination, including Harassment, because of any Protected Status: i.e., Age,
Disability, Gender, Genetic Information, Gender Identity or Expression, Nationality,
Marital Status, Race or Ethnicity, Religion, Sexual Orientation, and Veteran or Military
Status;
– Retaliation for exercising rights under this policy, opposing Discrimination or Harassment
because of a Protected Status, or for participating in any manner in any related
investigation or proceeding;
– Dating and Domestic Violence, and Stalking;
– Sexual Misconduct of any kind, which includes sexual activity engaged in without
Affirmative Consent; and,
– Employees from entering into a consensual relationship with any Student or Employee
over whom s/he exercises direct or otherwise significant academic, administrative,
supervisory, evaluative, counseling, or extracurricular authority.
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DHR
• Duty to Report. Except as provided below, any
Employee who knows or has reason to know of
allegations or acts that violate this policy shall
promptly inform the DHR Administrator or Title IX
Coordinator. These Employees are required to
disclose all information, including the names of
the Parties, even where the person has
requested that his/her name remain
confidential. The DHR Administrator or Title IX
Coordinator will determine whether
confidentiality is appropriate given the
circumstances of each such incident.
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DHR
All University employees except:
• Physicians and licensed counselors
• Sexual assault counselors and advocates
• A CSU employee/union representative is not required to report a possible
violation of this Executive Order if the information is provided to the union
representative, acting in that role, in a confidential setting by a union
member seeking advice about a possible violation or representation in a
matter within the scope of representation. However, CSU employee/union
representatives are strongly encouraged to report the information to the
DHR Administrator or Title IX Coordinator.
• University police are not required to report any personally-identifiable
information about a victim of certain sex offenses, if the victim requests
confidentiality, but must report all known facts of the incident, including
the identity of the perpetrator (if known), to the Title IX Coordinator.
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DHR – Types of Harassment
• Quid Pro Quo (this for that)
• Today: “tangible employment action” has
replaced ‘quid pro quo’
• Hostile work environment – must be severe or
ongoing and pervasive with or without
economic impact.
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DHR
• Protected Status is defined as Age, Disability,
Gender, Genetic Information, Gender Identity
or Expression, Nationality, Marital Status, Race
or Ethnicity, Religion, Sexual Orientation, and
Veteran or Military Status.
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DHR
Discrimination means an Adverse Action taken
by the CSU, a student, or an Employee because
of a Protected Status.
• Adverse Action means an action that has a
substantial and material adverse effect on the
Complainant's employment or ability to
participate in a University program or activity
free from Discrimination, Harassment or
Retaliation.
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DHR
On November 1, Marcus, an African-American,
begins as a technician in IT with Tim, a white male,
as his supervisor. The semester break is
approaching and Marcus tells Tim that he will be
going to Germany during the break to visit his
fiancé and son. Upon returning from the semester
break, Marcus is informed that he has been
rejected during probation. We later learn that Tim
does not like mixed marriages.
• Has Marcus suffered discrimination?
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DHR
• Age, with respect to employment discrimination, refers to the
chronological age of any individual who has reached his or her 40th
birthday and is a Protected Status.
• Disability, as defined in California Government Code § 12926 and the
federal Americans with Disabilities Act (ADA), 2008 Amendments, means:
1.
2.
3.
4.
Having a physical or mental condition that limits a major life activity. “Limits”
means making the achievement of a major life activity difficult. “Limits” is
determined without regard to mitigating measures such as medications,
assistive devices, prosthetics, or reasonable accommodations, unless the
mitigating measure itself limits a major life activity. A “major life activity” is
broadly construed and includes physical, mental, and social activities (such
as walking, talking, seeing, hearing) and working; or
Having a known history of a qualifying impairment; or
Being regarded or treated as having or having had a qualifying impairment;
or
Being regarded or treated as having or having had such an impairment that
has not presently disabling effects but may become a qualifying impairment
in the future.
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DHR
• Gender means sex, and includes a person’s gender identity and gender
expression. Gender expression means a person’s gender-related
appearance and behavior whether or not stereotypically associated with
the person’s assigned sex at birth. Sex includes but is not limited to
pregnancy, childbirth, breastfeeding or associated medical condition(s).
They are Protected Statuses.
• Genetic Information is a Protected Status and means:
–
–
–
–
The person’s genetic tests.
The genetic tests of the person’s family members.
The manifestation of a disease or disorder in the person’s family members.
Any request for, or receipt of genetic services, or participation in clinical
research that includes genetic services, by a person or any person’s family
member.
– Genetic Information does not include information about the sex or age of any
person.
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DHR
• Nationality includes citizenship, country of origin,
and national origin and is a Protected Status.
• Marital Status means an individual’s state of
marriage, non-marriage, divorce or dissolution,
separation, widowhood, annulment, or other
marital state.
• Race or Ethnicity includes ancestry, color, ethnic
group identification, and ethnic background.
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DHR
• Religion includes all aspects of religious belief,
observance, and practice and includes
agnosticism and atheism. Religious dress and
grooming practices, such as wearing religious
clothing, head or face covering, jewelry, and
artifacts, are part of a Complainant’s religious
observance or belief.
• Sexual Orientation means one’s preference in
sexual partners and includes heterosexuality,
homosexuality or bisexuality.
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DHR
• Military and Veteran Status may be Protected
Statuses and means service in the uniformed
services.
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DHR
Consensual Relationships. Consensual relationship means a
sexual or romantic relationship between two persons who
voluntarily enter into such a relationship. While sexual and/or
romantic relationships between members of the University
community may begin as consensual, they may evolve into
situations that lead to Discrimination, Harassment,
Retaliation, Sexual Misconduct, Dating or Domestic Violence,
or Stalking subject to this policy.
A CSU Employee shall not enter into a consensual relationship
with a Student or Employee over whom s/he exercises or
influences direct or otherwise significant academic,
administrative, supervisory, evaluative, counseling, or
extracurricular authority.
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DHR
Harassment means unwelcome conduct engaged in because of a Complainant’s
Protected Status and:
•
•
•
Submission to, or rejection of, the conduct is made a term or condition of the
Complainant’s employment; or
Submission to or rejection of such conduct by the Complainant is used as the basis
or threatened to be used as the basis for employment actions or decision affecting
the Complainant; or
The conduct is sufficiently severe or pervasive that its effect, whether or not
intended, could be considered by a reasonable person in the shoes of the
Complainant, and is in fact considered by the Complainant, as intimidating, hostile
or offensive.
Harassment includes, but is not limited to, verbal harassment (e.g., epithets,
derogatory comments, or slurs), physical harassment (e.g., assault, impeding or
blocking movement, or any physical interference with normal work or movement),
and visual forms of harassment (e.g., derogatory posters, cartoons, drawings, symbols,
or gestures.)
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DHR
A Department Chair asks you whether you think someone
asking someone else out for a date is wrong. He wants to
know what makes it a “date” rather than just an attempt to
get to know someone better. Does it matter whether the
person asking is married? He explains that one of his faculty
members (male, mid-60’s, married, Full Professor, well
respected scholar) regularly asks female staff and students/
student employees, to social events (a drink, a baseball game,
etc.) and he says it is not dating and just his interest in them
as people. Some simply say no and yet one student employee
has asked other staff to never leave her alone with him and
has been so upset that she is missing work.
• What do you do?
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DHR
Problems with Office Romances:
• Complaints of favoritism
• Lower morale
• Damaged working relationships
• A conflict of interest
• Claims of sexual harassment or discrimination
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DHR
Retaliation means Adverse Action taken against a person because s/he has or
is believed to have:
1. Exercised rights under this Executive Order;
2. Reported or opposed conduct which s/he reasonably and in good faith
believes is in violation of this Executive Order;
3. Assisted with or participated in a policy-related investigation/proceeding
regardless of whether the Complaint was substantiated; or,
4. Assisted someone in reporting or opposing a violation of this Executive
Order, or assisted someone in reporting or opposing Retaliation under
this Executive Order.
Retaliation may occur whether or not there is a power or authority
differential between the individuals involved.
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DHR – Retaliation
• The University has a no-tolerance approach to
retaliation.
• Retaliation against a complainant is prohibited
by federal and state laws.
• It is a distinct actionable claim.
• Harassment does not need to have occurred
beforehand in order to prevail in a separate
claim of retaliation.
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DHR - Liability
• STRICT LIABILITY – Employer is automatically
liable for supervisor’s actions or failure to
prevent the harm; fault is irrelevant.
• PERSONAL LIABILITY – Employees who engage
in harassment may be sued in civil court by
the injured party and be subject to monetary
liability if the court finds that, it is more likely
than not, the harassment occurred.
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DHR – How to file a complaint
Information and complaint form:
http://hr.fullerton.edu/faculty_staff_relations/Di
scriminationHarassment.asp
• Discuss your concern first with your supervisor
or Human Resources, Diversity and Inclusion
• Union representation is your choice (if
covered)
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DHR – How to file a complaint
HRDI Contacts:
• Maria Osorio– Interim Director for Faculty Labor Relations
College Park - Suite 760
mosorio@fullerton.edu
657-278-7169
• Elizabeth Castello - Manager, Labor/Employee Relations and
Compliance
College Park – Suite 760
ecastello@fullerton.edu
657-278-8396
• Michelle Tapper - Compliance Officer/Title IX Administrator
Labor/Employee Relations and Compliance
College Park – Suite 760
mtapper@fullerton.edu
657-278-4207
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DHR
Questions?
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