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Policies

Sex-Based Harassment Grievance Procedures

The following procedures describe the university’s response to Complaints of Sex-Based Harassment. Key terms in these procedures are defined herein and in the Sex Discrimination Policy.

1. Investigation

The university investigates Sex-Based Harassment allegations in a Complaint as set forth below (Investigation).

1.1 Selection of the Investigator

After receiving or initiating a Complaint of Sex-Based Harassment, the Title IX coordinator promptly selects an individual (Investigator) to investigate the allegations in the Complaint.

1.2 Notice of Allegations

Upon receipt of a Complaint from the Title IX coordinator, the Investigator promptly prepares and delivers a written notice of allegations (Notice of Allegations) to the Parties (if known) at least five (5) business days prior to the Respondent’s initial interview. The Notice of Allegations must include at least the following:

  • copy of, or links to, these grievance procedures and the university’s Sex Discrimination Informal Resolution Procedures; 
  • description of the conduct alleged to constitute Sex-Based Harassment (including date(s) and location(s)) and the identities of the parties involved, to the extent that information is available; 
  • statement prohibiting Retaliation (see Sex Discrimination Policy); 
  • statement that the Respondent is presumed not responsible for the alleged Sex-Based Harassment until a Determination is made at the conclusion of the grievance process and that prior to the Determination, the Parties will have an opportunity to present relevant, permissible evidence;  
  • notice that each Party may seek an advisor of their choice, who may be, but is not required to be, an attorney; 
  • statement that the Parties are entitled to an equal opportunity to access the relevant, permissible evidence and the Report (see Section 1.5); and 
  • prohibition on knowingly providing false information during the grievance process, which violates the Church Educational System Honor Code. 

A Party who wishes to file a separate Complaint with allegations of Sex Discrimination relating to the incidents identified in the Notice of Allegations must file that Complaint within fifteen (15) business days of receiving the Notice of Allegations. Allegations in any Complaint received under this paragraph may be consolidated or separated as provided in the Sex Discrimination Policy. If, during the Investigation, the Investigator decides to investigate additional Sex Discrimination allegations about the Complainant or Respondent that are not included in the Notice of Allegations, the Investigator will provide the Parties (if known) with a supplemental Notice of Allegations as to the additional allegations.

If the university, after an individualized safety and risk analysis, has reasonable concerns that issuing a Notice of Allegations would compromise the safety of anyone, the university may reasonably delay providing the Notice of Allegations to appropriately address the safety concern.

1.3 Evidence

1.3.1 Relevance

Evidence is relevant when it may aid the Investigator in determining if the alleged Sex-Based Harassment occurred. Questions are relevant when they seek evidence that may aid in showing if the alleged Sex-Based Harassment occurred.

1.3.2 Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are impermissible and may not be considered or used in the Investigation, regardless of whether they are relevant:

  • evidence protected under a legal privilege or provided to a confidential employee, in the scope of their work as a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality; 
  • a Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the treatment of the Party or witness, unless the university obtains that Party’s or witness’s voluntary, written consent to use the records in the Investigation; and 
  • evidence about the Complainant’s sexual interests or prior sexual conduct unless (i) it is offered to prove that someone other than the Respondent committed the alleged conduct, or (ii) the evidence concerns specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove Consent to the alleged Sex-Based Harassment. 

1.4 Investigation Process

The Investigator gathers sufficient evidence to determine based on the preponderance of the evidence (i.e., more likely than not to be true) whether Sex-Based Harassment occurred. The Investigator may gather information and evidence through written statements and live interviews. As part of that process, the Investigator provides an equal opportunity for each Party to identify fact witnesses and to provide other relevant, permissible evidence.

The Investigator should, in good faith, attempt to conduct the Investigation and issue a Report within ninety (90) calendar days of receiving the Complaint of Sex-Based Harassment.

1.4.1 Sex-Based Hostile Environment Harassment

For Sex-Based Harassment Complaints alleging a hostile environment, the Investigator will conduct a fact-specific inquiry that includes consideration of the following:

  • how the conduct affected the Complainant’s ability to access the university’s Education Program or Activity; 
  • the type, frequency, and duration of the conduct; 
  • the Parties’ ages, roles within the university’s Education Program or Activity, previous interactions, and other factors about each Party that may be relevant to evaluating the effects of the conduct; 
  • the location of, and context in which, the conduct occurred; and 
  • other Sex-Based Harassment in the university’s Education Program or Activity. 

A Complaint of a sex-based hostile environment harassment within the university’s Education Program or Activity will be addressed using these procedures, even when some conduct alleged to be contributing to the hostile environment occurred outside the university’s Education Program or Activity or outside the United States.

1.4.2 Parties’ Participation in Investigation

When a Party is invited or expected to participate in a meeting as part of the Investigation, the Investigator will give the Party (i) written notice of the meeting date, time, location, participants, and purpose; and (ii) sufficient time to prepare to participate.

Each Party may be accompanied by one advisor of their choice, who may be, but is not required to be, an attorney. The advisor’s participation in the grievance process is set forth in Section 5. No other persons will be allowed to accompany the Party in grievance process meetings.

1.4.3 Fact Gathering and Questioning of Parties and Witnesses

Initial Meeting with Respondent

At least five (5) business days following delivery of the Notice of Allegations to the Respondent, the Investigator will attempt to meet with the Respondent to at least review the Notice of Allegations and document Respondent’s responses to the allegations. The Respondent will then be given five (5) business days to, in writing, submit revisions to, or supplement, the responses to the Notice of Allegations, after which a copy of Respondent’s responses is provided by the Investigator to the Complainant. 

Subsequent Individual Meetings

Following the initial meeting with the Respondent, the Investigator will typically schedule subsequent individual meetings with at least each Party so that the Investigator may ask relevant questions to evaluate the pertinent allegations and to assess credibility, if applicable.

Each Party will also be given the opportunity to propose questions that it wants the Investigator to ask of the other Party or any witness. The Investigator determines if a proposed question is relevant and must explain to the questioning Party any decision to exclude a question as not relevant or impermissible. The Investigator will not permit questions, even if relevant, that he or she believes are unclear or harassing but will give the questioning Party an opportunity to clarify or revise those questions. The Investigator will provide both Parties with an audio recording or transcript of the answers to the Party-requested questions with enough time for the questioning Party to have a reasonable opportunity to propose follow-up questions.

The number of individual meetings held during the Investigation will be at the reasonable discretion of the Investigator. Such meetings may be conducted in person or remotely using technology enabling the Investigator to see and hear the Party or witness.

The university makes reasonable allowances for students and employees to participate in an individual meeting, if necessary, during regular school or work hours. However, the university will not compel any Party or non-employee witness to participate in an individual meeting. If a Party or witness does not attend an individual meeting or refuses to answer questions from the Investigator, the Investigator may still, at his or her discretion, rely on any relevant statement(s) of that Party or witness in reaching a Determination. The Investigator may not draw any inference about whether Sex-Based Harassment occurred based solely on a Party’s or witness’s absence from an individual meeting or refusal to answer questions.

1.5 Investigation Record and Report

The Investigator will maintain a record (Record) consisting of all relevant evidence obtained as part of the Investigation, including the Notice of Allegations and the Respondent’s written response, and any recordings from the subsequent individual meetings.

At the conclusion of the Investigation, the Investigator will create a report (Report) that

  • identifies the allegations potentially constituting Sex-Based Harassment and the Respondent’s responses to each allegation; 
  • describes the procedural steps taken from receipt of the Complaint through the conclusion of the Investigation, including notifications to the Parties, interviews with Parties and witnesses, site visits, and methods used to gather other evidence; and 
  • impartially summarizes the relevant evidence. 

The Investigator will send the Report to each Party and advisor, if any. At the same time, the Investigator will also give both Parties read-only access to the Record through a file-sharing platform (e.g., Box). The Record will remain available to the Parties and their advisors until the conclusion of the grievance process and any further access will be only as permitted by the Access to Student Records (FERPA) policy or as required by law.

Each Party and advisor must maintain the confidentiality of all information and evidence learned by them through the grievance process. The university may restrict further access to the Record and seek appropriate sanctions against a Party or an advisor who discloses this information or evidence without authorization.

1.6 Final Written Responses by Parties; Close of Investigation

Upon delivery of the Report to the Parties, each Party will have ten (10) business days to submit a written response, which the Investigator will add to the Record and consider in making his or her Determination. Absent good cause, the Investigator will close the Investigation and not consider additional evidence, including but not limited to the introduction of new fact witnesses, that would have been discoverable through the exercise of due diligence during the Investigation.

2. Written Determination

Within ten (10) business days of the close of the Investigation, the Investigator will provide simultaneously to the Parties and their advisors, if any, a written determination whether Sex-Based Harassment occurred (Determination). In drafting the Determination, the Investigator will objectively evaluate all evidence relevant to the allegations in the Notice of Allegations and will decide, based on the preponderance of the evidence, whether the Respondent is responsible for Sex-Based Harassment.

The Determination will include at least the following:

  • a description of the alleged Sex-Based Harassment; 
  • a reference to these procedures; 
  • the Investigator’s evaluation of the relevant, permissible evidence and determination whether Sex-Based Harassment occurred; 
  • any disciplinary sanctions (see Section 3) imposed on the Respondent and whether other remedies will be provided to the Complainant, and, to the extent appropriate, other students identified by the university to be experiencing the effects of the Sex-Based Harassment; and 
  • a reference to the Sex Discrimination Appeal Procedures. 

The Determination becomes final unless an appropriate appeal is filed within ten (10) business days of delivery of the Determination. If an appeal is timely filed, the Reviewer’s Determination becomes final on the date that the appeal decision is provided to the Parties. The Parties’ access to the Record will terminate as soon as the Determination becomes final.

3. Sanctions

Sanctions against a Respondent for committing Sex-Based Harassment may include the following:

For a faculty, staff, or administrative employee: verbal counseling, written warning, probation, reassignment, demotion, reduction in pay, suspension, restriction on officially representing the university, termination of employment, and a ban from campus. Any disciplinary sanction imposed on an employee Respondent and the reason for the sanction may also be noted on the employee’s employment record.

For a student: notice, warning, probation, suspension withheld, suspension, restriction on officially representing the university, expulsion, and a ban from campus. Any disciplinary sanction imposed on a student Respondent and the reason for the sanction may also be noted on the student’s academic transcript and Honor Code file. If the Respondent is a student employee, possible sanctions also include those applicable to employees.

Other Respondents: limitation or termination of any agreement or association between the university and the Respondent and a ban from campus.

4. Supportive Measures

Supportive Measures available to Parties to a Sex-Based Harassment Complaint may vary depending upon what is reasonably available. Such measures may include, but are not limited to: counseling; extensions of deadlines or other course-related adjustments; campus escort services; increased security and monitoring of certain areas of the campus; mutual restrictions on contact between the Parties; modifications of work or class schedules; leaves of absence; changes in work or housing locations; changes to extracurricular activities; training and education programs related to Sex-Based Harassment; and other similar measures.

5. Advisors

Either Party may invite an advisor of their choice to accompany them to any meeting under these procedures to provide the Party with support, guidance, or advice. The university will not typically assign advisors or change scheduled meetings to accommodate an advisor’s inability to attend. Individuals may change their advisor during the grievance process. Although all Parties have the same opportunity to have an advisor present during any grievance proceeding, the university cannot guarantee equal advisory rights when it comes to advisors.

An advisor may attend for purposes of observation but will not be permitted to represent a Party, to respond to questions posed to the Party, or to otherwise participate in any meeting that may take place under these procedures. Advisors are subject to campus rules and are expected to refrain from interference with the university investigation and resolution process. Advisors are not permitted to contact the other Party or to act concurrently as a witness during the grievance process. Noncompliance with this section may result in the advisor being prohibited from participating in some or all of the grievance process.

6. Amnesty and Leniency

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

Being a victim of Sex-Based Harassment is never a violation of the CES Honor Code. The university strongly encourages the reporting of all incidents of Sex-Based Harassment to the Title IX coordinator so that Supportive Measures can be offered to Complainants and Sex-Based Harassment can be prevented and addressed.

6.1 Amnesty

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

6.2 Leniency

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

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

7. Sex-Based Harassment Complaints Involving PCC Employees

In the case of a Complaint of Sex-Based Harassment involving an employee of the Polynesian Cultural Center (PCC), the Investigation may be conducted jointly with a second investigator assigned by the PCC. Both investigators will work in good faith to conduct the Investigation consistent with these grievance procedures. The PCC may also implement, independent of BYU–Hawaii, interim measures consistent with its policies and applicable law.

In these cases, BYU–Hawaii and the PCC will independently determine appropriate resolution and sanctions. In cases involving a Respondent who is a BYU–Hawaii student-employee assigned to work at the PCC, both BYU–Hawaii and the PCC may consult with each other on any employment-related sanctions.

Last update: 09/12/2024