Initiating Department: Human Resources
Policy Type: General Administrative
Action Taken: Modify an Existing Policy
Date of Development: 3/26/1990
Date of Implementation: 3/26/1990
Date Last Modified: 8/13/2020
Next Review Date:
Table of Contents
I. Policy Statement
The University of Maine System (“UMS” or “the University”) is committed to providing a safe environment which promotes the dignity and worth of each member of the community. In complying with the letter and spirit of applicable laws and in pursuing its own goals of diversity, the University does not discriminate on the basis of sex in employment, education, and all other programs and activities. UMS, inclusive of all its campuses and faculties, does not discriminate on the basis of sex, race, color, religion, age, disability, status as a veteran, national or ethnic origin, sexual orientation, transgender status, gender identity, gender expression, or any other category protected by applicable law, in the administration of its educational policies, admission policies, scholarship and loan programs, employment, or other school administered programs. For this reason, the University will not tolerate sex discrimination, sexual harassment, sexual assault, dating violence, domestic violence, stalking, or retaliation in any form. All conduct of this nature is considered a violation of this policy.
This policy addresses discrimination on the basis of sex. UMS does not discriminate on the basis of sex in its education programs or activities, and UMS is required by Title IX of the Education Amendments of 1972, and the final Title IX regulations issued by the U.S. Department of Education’s Office for Civil Rights in May 2020, not to discriminate in such a manner. The requirement not to discriminate on the basis of sex in the education program or activity extends to admission and employment. Inquiries about the application of Title IX and its implementing regulations may be referred to the Title IX Coordinator, to the Assistant Secretary for Civil Rights, or both.
The University will respond to complaints and reports of violations of this policy in a prompt, fair, impartial and equitable manner. Regardless of whether a complaint is filed, the University will respond promptly and reasonably when it has notice of potential sexual misconduct that is covered by this policy. The University will take steps to end and prevent recurrence of violations of this policy and to correct their discriminatory effects on the complainant and others when a determination of responsibility has been made against a Respondent. In responding to all complaints and reports, the University will act to ensure the safety of students, guests, and employees while complying with state and federal laws and provisions of applicable collective bargaining agreements and employee handbooks.
This policy applies to all members of the University community, including but not limited to all students (graduate and undergraduate), all employees (including faculty and staff), adjunct faculty, contractors, vendors and/or other third parties. This policy applies to all individuals regardless of gender, sexual orientation, transgender status, gender identity, or gender expression. It applies to all University programs and activities, both on campus and off campus, including, but not limited to, instruction, grading, housing, athletics, electronic communication and employment.
This policy does not substitute for or supersede related civil and criminal law. It is the policy of the University to strongly encourage individuals to report all incidents and violations to law enforcement officials or agencies with appropriate jurisdiction and to avail themselves of all the services and rights to which they are entitled.
Any individual may file a complaint under this policy at any time. However, the University strongly encourages individuals to file complaints promptly in order to preserve evidence for a potential legal or disciplinary proceeding. A delay in filing a complaint may compromise the subsequent investigation. Reporting in a timely way also allows the University to provide all persons involved with information regarding their rights, options, and resources available under this policy and federal or state laws.
All members of the University community are encouraged to cooperate fully in investigations and other proceedings necessary for the effective execution of this policy, though no individual will be retaliated against for exercising their rights under this policy including their right not to participate in an investigation and/or adjudication process.
This policy covers the following information:
III. What to do if you are Sexually Assaulted or Experience Domestic Violence, Dating Violence or Stalking
IV. Terms Used in this Policy
Sexual Harassment includes two distinct, but overlapping definitions applicable to this policy. The Title IX Regulations define sexual harassment as set forth in Section XVI of this policy. Consistent with Title VII of the Civil Rights Act of 1964 and the recognition that Sexual Harassment may also occur in a wider variety of contexts, UMS defines Sexual Harassment as:
Consent is a voluntary agreement to engage in sexual contact. Consent must be informed, freely and actively given, and consist of a mutually agreeable and understandable exchange of words or actions. Consent is clear, knowing and voluntary Consent is active, not passive. Consent may be withdrawn at any time. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and conditions of) sexual activity. Past consent does not imply future consent. Consent to engage in one form of sexual activity does not imply consent to engage in any other sexual activity. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with any other person.
It is not consent when the exchange involves unwanted physical force, coercion, intimidation, and/or threats. If an individual is mentally or physically incapacitated or impaired such that one cannot understand the fact, nature or extent of the sexual situation, and the incapacitation or impairment is known or should be known to the other person, there is no consent. This includes conditions resulting from alcohol or drug consumption, or being asleep or unconscious. Consent is not valid if the person is too young to consent to sexual activity under Maine law.
VI. How to File a Complaint and How the University Will Respond
The University strongly encourages anyone who has experienced sex discrimination, sexual harassment, retaliation, sexual assault, domestic violence, dating violence or stalking to report the incident to the appropriate contact at the University (see VI (A)). A report can be made under this policy at any time, regardless of when the incident happened. Reporting the incident to the University does not mean that you have to file a formal complaint or bring criminal charges. Reporting the incident, however, will allow the University to provide individuals involved with information about available support and services, both on campus and off campus.
Any individual may make a third-party complaint about a violation of this policy. Individuals are encouraged to contact the appropriate office identified below as soon as possible. After receiving a complaint, the University will determine what further action, including contacting the alleged victim, is warranted. If a concern is reported by someone other than the alleged victim and the alleged victim is unwilling or unable to cooperate with an investigation, the University’s ability to respond may be significantly limited.
The UMS Title IX Coordinator is responsible for the University’s overall compliance and response to incidents of sexual assault, sexual harassment and sex discrimination in general.
Confidentiality: What are the Options?
The University encourages people who have experienced sex discrimination, sexual harassment, sexual assault, dating violence, domestic violence, stalking, or retaliation to talk to somebody about what happened so they can get the support they need, and so the University can respond appropriately. People on campus and off-campus have different abilities to maintain confidentiality depending on their roles and responsibilities.
VIII. Supportive Measures
Whether or not an individual who has experienced a violation of this policy files a formal complaint, reporting the incident will allow the University to provide all individuals involved with available support and services, both on-campus and off-campus. The University can also take supportive measures to promote the safety and well-being of both the complainant and respondent, including, but not limited to, moving the complainant or respondent to a new living, dining or working situation; issuing a no contact order; changing class or work schedules; changing transportation; financial aid accommodations; and other academic and/or employment accommodations and support. Supportive Measures are non-disciplinary, non-punitive individualized measures offered as appropriate, as reasonably available and without fee or charge to the complainant or respondent.
The University can assist all individuals involved in obtaining counseling on or off campus and provide information regarding medical care and other resources, such as victim advocacy, legal assistance and visa and immigration assistance. The University will provide written notification to students and employees about existing resources, both within the University and the community. The University will provide written notification to complainants and respondents about how to request the above services and accommodations. The University must offer such supportive measures if they are reasonably available, regardless of whether the complainant chooses to report the incident to campus police or local law enforcement, or file a formal complaint with the University.
IX. Options Regarding Law Enforcement
An individual who has experienced sexual assault, domestic violence, dating violence or stalking, or any other conduct which may violate criminal laws, has a right, at his or her own discretion, to:
University officials may, however, provide law enforcement with details about an incident under some circumstances if a determination has been made that such disclosure is required by law and/or is necessary to secure campus safety. See section VII(D) above. Complainants have a right to proceed simultaneously with a criminal investigation and a University internal investigation. If necessary to the criminal investigation, the University may defer its investigation for a limited time for fact gathering by law enforcement, and then will promptly resume its investigation.
X. Enforcement of Protection-from-Harassment or Protection-from-Abuse Orders
The University will provide assistance or referrals for a student or employee who wishes to obtain a protection-from-abuse or protection-from-harassment order. If a protection-from-abuse or protection-from-harassment order has been issued by a court in a civil or criminal proceeding, a copy of the order should be provided to University police or security and the UMS Title IX Coordinator or the Deputy Title IX Coordinator, as soon as possible to enable enforcement by the appropriate authorities. The University will work in good faith to implement the requirements of judicially issued protective orders and similar orders, to the extent that doing so is within its authority.
XI. Student Amnesty
The University strongly encourages students to report instances of sexual misconduct covered under this policy. Students who report information about a potential violation of this policy will not be disciplined by the University for any violation of alcohol possession or consumption policies or other minor violations of the Student Conduct Code in which they might have engaged in connection with the reported incident.
XII. Free Speech and Academic Freedom
Recognizing that many citizens have differing views on the matter of whom and which groups should have an opportunity to express opinions, the University of Maine System affirms its commitments to the rights of free speech and academic freedom.
To that principle, there shall be no restrictions, at any of the System institutions, placed on the fundamental rights of free speech and assembly, except those necessary to preserve the order for the University System to function as an institution of higher learning. Additional information pertaining to Free Speech can be found at: https://www.maine.edu/board-of-trustees/policy-manual/section-212/
Academic freedom is essential to the fulfillment of the purposes of the University. The University acknowledges and encourages an atmosphere of confidence and freedom while recognizing that the concept of academic freedom is accompanied by a corresponding concept of responsibility to the University and its students and employees. Academic freedom is the freedom to present and discuss all relevant matters in the classroom, to explore all avenues of scholarship, research and creative expression, and to speak or write without any censorship, threat, restraint, or discipline by the University with regard to the pursuit of truth in the performance of teaching, research, publishing or service obligations.
The University of Maine System is a public institution of higher education committed to excellence in teaching, research, and public service. Together, the students, faculty, and staff form our state wide University community. The quality of life on and about the member Universities is best served by preserving the above described freedoms and civility. This policy shall not be construed or applied to restrict academic freedom within the University, nor construed to restrict constitutionally protected expression.
XIII. Off-Campus and Off-Duty Conduct
Reports of violations of this policy that occur off campus and/or off-duty can be the subject of a complaint. Reports of off-campus and/or off-duty sexual harassment, sexual assault, domestic violence, dating violence and stalking should be brought to the University's attention as soon as possible. The University will evaluate the incident to determine whether it violates this policy by resulting in continuing effects that create a hostile environment on campus or otherwise has a substantial connection to the University’s education programs and activities.
XIV. Educational Programs
The University will conduct educational programs to promote awareness of sex discrimination, sexual harassment, sexual assault, domestic violence, dating violence, and stalking. This will include primary prevention and awareness programs for incoming students and new employees, and ongoing prevention and awareness campaigns for students, faculty and staff. All employees and students must participate in all required educational programs.
XV. External Complaints
Individuals who experience a violation of this policy may file a complaint or suit with an outside agency, including the Maine Human Rights Commission, U.S. Equal Employment Opportunity Commission, or U.S. Department of Education Office of Civil Rights. The University will still investigate and respond appropriately to any internal complaint.
A complainant who filed a complaint with the University and believes the University’s response was inadequate may also file a complaint with the above agencies.
Complainants should keep in mind, however, that although they may report a violation of this policy to the University at any time; external agencies typically have time limits within which complaints must be filed. To learn more about the procedures for filing complaints with an outside agency, Complainants should contact that entity directly. To learn more about the procedures for filing complaints with an outside agency, Complainants should contact that entity directly.
Office of Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-1100
Maine Human Rights Commission
Office of the Commission
51 State House Station
Augusta, ME 04330
For Employee Title IX/ADA Complaints:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section — 1425 NYA
Washington, D.C. 20530
Fax: (202) 307-1197
You may also file a complaint by email at ADA.firstname.lastname@example.org. If you have questions about filing an ADA complaint, please call:
ADA Information Line: 800-514-0301 (voice) or 800-514-0383 (TTY)
U.S. Equal Employment Opportunity Commission Complaints:
For Deaf/Hard of Hearing callers:
1-844-234-5122 (ASL Video Phone)
XVI. Title IX Sexual Harassment (Pursuant to May 2020 Title IX Regulations)
This Article XVI and the corresponding Title IX Sexual Harassment process apply to all complaints of Title IX Sexual Harassment that are made after August 14, 2020 regarding conduct that occurs after that date. All complaints made after August 14, 2020 regarding conduct that occurred before August 14, 2020, will follow the policies in place at the time of the incident and the applicable process in place at the time of the complaint. The Title IX Sexual Harassment policy and process described in this Article XVI go into effect at midnight on August 14, 2020 and will remain in effect unless/until this policy and process are stayed, enjoined, limited, amended, repealed or otherwise are ruled or become inapplicable in whole or in part due to action by a court or the U.S. Department of Education. Should the Title IX Regulations be revoked, any conduct covered under this Policy shall be investigated and adjudicated under this policy and the applicable processes described in Articles IV and VI.
Finally, conduct that falls outside of Title IX, such as gender-based and sexual harassment that does not meet the Title IX regulations’ definition or conduct that occurs outside of the United States but still within the University’s education programs or activities, may be covered by Articles IV and VI of this Policy. The University condemns all forms of sexual misconduct, even conduct that does not meet the definition of sexual harassment under Title IX. Accordingly, this Policy provides procedures for reporting and investigating sexual harassment that falls outside of Title IX’s definition of sexual harassment or outside of Title IX’s geographic scope but is nonetheless detrimental to the safety and wellbeing of the University community.
If you have any questions or concerns about which policy or process may apply to your case/report, please contact the UMS Title IX Coordinator at 207.581.5866 or at email@example.com for clarifications.
1. Title IX Sexual Harassment Jurisdiction
Title IX jurisdiction applies when the alleged sexual harassment occurs within the context of the University’s “education program or activity” which includes all of the operations of the University, and locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by the University.
2. Title IX Sexual Harassment Definitions
The Title IX regulations define Sexual Harassment as conduct on the basis of sex that must satisfy one or more of the following:
Sexual Assault is defined as having or attempting to have sexual intercourse with another individual, including: (1) by use of force or threat; (2) without effective consent; or (3) where the actor knew or should have known the individual is incapacitated by drugs and/or alcohol or was physically or mentally unable to make informed or reasonable judgments or provide consent. For purposes of this definition, sexual intercourse includes vaginal, anal or oral penetration, no matter how slight, with any body part or object, or oral penetration involving any form of mouth to genital contact. Sexual Assault includes rape, fondling, incest, or statutory rape as those crimes are defined by the Federal Bureau of Investigation (FBI) Uniform Crime Reporting Program. This definition conforms to the FBI’s Uniform Crime Report and Clery Act definition and also conforms to the definition of rape under Maine law.
Force is the use of physical violence and/or the threat of physical violence to gain sexual access. Force also includes threats against others, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you”).
Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive, and there is no consent.
Incapacitation is defined as the inability to make rational, reasonable decisions because the individual lacks capacity to give knowing consent (e.g. to understand the “who”, “what”,” when”, “where”, “why”, or “how” of their sexual interaction. A person may be incapacitated because of their consumption of drugs/alcohol and/or because they are mentally/physically helpless or disabled, asleep, unconscious, or otherwise unaware that the sexual activity is occurring. Where drugs or alcohol are involved, incapacitation is a state beyond impairment or intoxication, and involves an assessment of the person’s decision-making ability, awareness of consequences, ability to make informed, rational judgments, capacity to appreciate the nature and quality of the act, and/or level of consciousness. The assessment is based on objectively and reasonably apparent signs of incapacitation when viewed from the perspective of sober, reasonable person.
Dating Violence, Domestic Violence, and Stalking, as defined above.
No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.
No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this Title IX Policy and accompanying process.
Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or formal complaint of sexual harassment, as set forth in the University’s amnesty policy.
Complaints alleging retaliation may be filed with the Title IX Coordinator.
UMS reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or dismissal/termination, for any offense under this policy.
XVII. Review and Revision of this Policy
A representative Policy Review Board will be established consisting of University and UMS participants to review and recommend changes, as appropriate, to this policy and procedures. The Board will meet at least every three years or more often, as needed and in synchronization with the review of the University of Maine System Student Conduct Code. Revisions of this policy require approval of the Board of Trustees.