Sex Discrimination

1. Purpose

Brigham Young University–Hawaii (“BYU–Hawaii” or “university”) is committed to fostering an environment in which all members of the campus community are safe, secure, and free from discrimination.

2. Policy

The university prohibits unlawful sex discrimination by its personnel and students and in all its education programs or activities, in compliance with applicable provisions of Title IX of the Education Amendments Act of 1972 (Title IX).1

3. Implementation

3.1 Definitions

3.1.1 Complainant

Complainant means an individual alleged to be the victim of conduct that could be Sex Discrimination, where that individual is (i) a student, (ii) an employee, or (iii) someone who was participating or attempting to participate in BYU–Hawaii’s Education Program or Activity at the time of the alleged conduct.

3.1.2 Complaint

Complaint means an oral or written request to the university to investigate and make a determination about allegation(s) of Sex Discrimination.

3.1.3 Consent

Consent means a voluntary agreement to engage in sexual activity and may be expressed or implied by word or action. Consent is determined by the applicable facts and circumstances and may be withdrawn at any time. Consent to any sexual act or prior consensual activity does not necessarily constitute consent to any other sexual act.

Consent cannot be given by a person who is: (i) under the age of consent for sexual activity, (ii) developmentally or intellectually disabled, or (iii) mentally incapacitated or physically helpless. Consent does not exist when the agreement to engage in sexual activity is induced by force, duress, or deception.

3.1.4 Education Program or Activity

BYU–Hawaii’s Education Program or Activity means all the operations of the university. Conduct that is subject to BYU–Hawaii’s disciplinary authority (e.g., CES Honor Code) is considered to have occurred under BYU–Hawaii’s Education Program or Activity.

3.1.5 Party

Party means a Complainant or a Respondent.

3.1.6 Respondent

Respondent means a person who is alleged to have engaged in Sex Discrimination.

3.1.7 Retaliation

Retaliation means intimidation, threats, coercion, or discrimination by the university, student, employee, or agent of the university for the purpose of interfering with any person’s right or privilege provided for under this policy because that person reported information, made a Complaint, or participated or refused to participate in an investigation or proceeding under this policy. Typically, petty slights, minor annoyances, and simple lack of good manners are insufficient to establish a claim of Retaliation.

3.1.8 Sexual Assault

Sexual Assault means a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation, including Fondling, Incest, Rape, and Statutory Rape.

3.1.9 Sex Discrimination

Sex Discrimination means unlawful discrimination on the basis of sex.

3.1.10 Sex-Based Harassment

Sex-Based Harassment is a form of Sex Discrimination and includes:

Quid pro quo harassment. An employee, agent, or other person authorized by BYU–Hawaii explicitly or impliedly conditions an aid, benefit, or service under BYU–Hawaii’s Education Program or Activity on a person’s participation in unwelcome sexual conduct.
Hostile environment harassment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits a person’s ability to participate in or benefit from BYU–Hawaii’s Education Program or Activity.
Sexual assault, Dating Violence, Domestic Violence, or sex-based Stalking.

3.1.11 Supportive Measures

Supportive Measures means individualized measures, free of charge, that do not unreasonably burden either Party, are not for punitive or disciplinary reasons, and: (1) restore or preserve the Party’s access to BYU–Hawaii’s Education Program or Activity (e.g., designed to protect the safety of the Parties or the university’s educational environment), or (2) provide support to a Party during a grievance or informal resolution process.

3.1.12 Additional Definitions

The following crimes are defined in the university’s Annual Security Report: Dating Violence, Domestic Violence, Fondling, Incest, Rape, Stalking, and Statutory Rape.

3.2 Reporting Sex Discrimination

Anyone that believes Sex Discrimination has occurred in BYU–Hawaii’s Education Program or Activity is encouraged to contact the Title IX Office, but some employees, as explained below, are required to notify the Title IX Office of Sex Discrimination. An employee who violates the requirements of this section may be subject to disciplinary action.

3.2.1 Mandatory Reporting or Notifications by Employees

3.2.1.1 Required Reporters

Unless exempted under this policy, the following university employees must notify the Title IX coordinator when they learn of conduct that may constitute Sex Discrimination in BYU–Hawaii’s Education Program or Activity:

All non-student employees; and
All student employees who are employed in the Title IX Office, the Office of Honor, Human Resources, Campus Safety & Security, and Student Living.

Any employee who receives information confidentially in the context of a privileged relationship (e.g., the employee was the reporting person’s physician, therapist, lawyer, ecclesiastical leader, or spouse), however, is not subject to this mandatory reporting obligation. No Complainant is required to file a Complaint or report Sex Discrimination to which they have personally been subjected.

3.2.1.2 Confidential Employees

Confidential employees are university employees

whose employment-related communications are privileged or confidential under the law;
designated as confidential by the university; or
conducting IRB-approved human research about Sex Discrimination.

A list of confidential employees and their contact information can be found at titleix.byuh.edu.

Confidential employees must explain to any person who informs them, while they are performing employment duties to which privilege or confidentiality applies, of conduct that may constitute Sex Discrimination:

the employee’s status as a confidential employee;
the employee is not required to notify the Title IX coordinator about the conduct;
how to contact the Title IX coordinator and how to make a Complaint of Sex Discrimination; and
the Title IX coordinator may be able to offer and coordinate Supportive Measures, as well as initiate an informal resolution process or an investigation.

3.2.2 How to Report Sex Discrimination

Reports of Sex Discrimination should be made to the Title IX coordinator, as soon as possible, using following contact information:

BYU–Hawaii Title IX
LSB 241
55-220 Kulanui Street #1976
Laie, HI 96762-1293
(808) 675-4585
titleix@byuh.edu

This information is also located on the Title IX Office’s website: titleix.byuh.edu. In addition, individuals may submit reports, including anonymous reports, through Report A Concern, by submitting information online at reportaconcern.byuh.edu.

3.3 Response by Title IX Coordinator

Upon receiving a report of Sex Discrimination, the Title IX coordinator will promptly contact the Complainant identified in the report to offer and coordinate Supportive Measures, as appropriate, and to notify the Complainant of applicable grievance processes, including how to file a Complaint and available informal resolution processes.

3.3.1 Supportive Measures

The Title IX coordinator coordinates the implementation of Supportive Measures for the Complainant and, as appropriate, for the Respondent. The university will keep confidential Supportive Measures provided to either Party to the extent that maintaining such confidentiality would not inhibit the university from providing the Supportive Measures. The university may, as appropriate, continue, modify, or terminate Supportive Measures at the conclusion of any grievance or informal resolution process under this policy. A Party may also request modification or termination of a Supportive Measure applicable to them if circumstances materially change.

If a Party does not agree with the Title IX coordinator’s decision to provide, deny, modify, or terminate Supportive Measures applicable to them, they may seek a review from the student life vice president . The student life vice president may modify or reverse the decision of the Title IX coordinator regarding Supportive Measures if he or she believes that decision was inconsistent with this policy.

3.3.2 Complaints of Sex Discrimination

Unless a Complaint is filed with the Title IX Office, a report of Sex Discrimination will not initiate a grievance process or result in any disciplinary action under this policy. The grievance process is initiated by (1) the proper filing of a Complaint with the Title IX coordinator alleging Sex Discrimination and requesting that BYU–Hawaii investigate the allegation, or (2) the Title IX coordinator initiating a Complaint.

The Complaint should clearly and concisely describe the conduct allegedly constituting Sex Discrimination, including (if known) the identities of the Parties involved and the date(s) and location(s) of each alleged incident.

3.3.2.1 Who May File a Complaint

A Complainant may file a Complaint of Sex Discrimination. A parent, guardian, or other authorized representative with the legal right to act on behalf of the Complainant may also file a Complaint for the Complainant. A Complaint may not be anonymous and must identify the Complainant.

Any other individual may also file a Complaint of Sex Discrimination (except for cases of Sex-Based Harassment) if that individual was participating or attempting to participate in BYU–Hawaii’s Education Program or Activity at the time of the alleged Sex Discrimination.

3.3.2.2 Complaints Initiated by Title IX Coordinator

In the absence of a Complaint, or if a Complainant withdraws any allegations in a Complaint, the Title IX coordinator may initiate a Complaint if he or she determines that the alleged conduct

presents an imminent and serious threat to the health or safety of any person, or
prevents the university from ensuring equal access on the basis of sex to its Education Program or Activity.

The Title IX coordinator will inform the Complainant prior to initiating the Complaint, and the university will provide the Complainant with applicable notices, but the Complainant is not required to respond or participate in any resulting grievance process.

3.3.3 Evaluation of Complaint

3.3.3.1 Preliminary Evaluation and Dismissal

Generally, within five (5) business days of receiving a Complaint, the Title IX coordinator will evaluate the allegations and may dismiss those concerning conduct that would not constitute Sex Discrimination. Prior to dismissing any allegations, the Title IX coordinator will make reasonable efforts to clarify them with the Complainant.

The Title IX coordinator may also dismiss a Complaint entirely, or any of its allegations, or may suspend a grievance process at any time if:

the Complainant notifies the Title IX coordinator in writing that the Complainant would like to voluntarily withdraw the Complaint or all allegations of Sex Discrimination;
the university is unable to identify the Respondent after taking reasonable steps to do so;
the Respondent is not participating in BYU–Hawaii’s Education Program or Activity or not employed by BYU–Hawaii; or
specific circumstances prevent the Investigator from gathering evidence sufficient to reach a determination as to the allegations in the Complaint.

Dismissal precludes any subsequent Complaint by the same Complainant alleging the same factual allegations. A Complainant may file another Complaint against the same Respondent based on new or additional factual allegations. Dismissal of a Complaint does not preclude action against the Respondent under the CES Honor Code, Personnel Conduct policy, Progressive Discipline policy, Banning policy, or other university policies applicable to the alleged conduct.

The Title IX coordinator will promptly send, at the same time, both Parties written notice of and reasons for any dismissal. If the dismissal occurs before the Respondent has been notified of the allegations, then the written notice will be sent only to the Complainant. The dismissal of allegations of a Complaint may be appealed as provided in the Sex Discrimination Appeal Procedures.

Following the dismissal of a Complaint, the Title IX coordinator will, if appropriate, offer the Complainant and the Respondent Supportive Measures and will take appropriate prompt and effective steps to ensure that Sex Discrimination does not continue or recur within BYU–Hawaii’s Education Program or Activity.

If a Complaint is dismissed or an investigation is suspended because the Respondent is not enrolled at BYU–Hawaii, employed by BYU–Hawaii, or under BYU–Hawaii’s disciplinary authority, the university may reopen the investigation if the Respondent enrolls or applies for work at the university or otherwise comes under BYU–Hawaii’s disciplinary authority. If a Complaint is reopened, the Title IX coordinator will promptly notify the Parties.

3.3.4 Applicable Procedures

The Title IX coordinator will follow the Sex-Based Harassment Grievance Procedures to respond to Complaints of Sex-Based Harassment alleged to have occurred on or after August 1, 2024, and involving a student Party. Complaints of Sex-Based Harassment alleged to have occurred entirely before August 1, 2024, are subject to the university policies and procedures in place at the time of the alleged conduct.

The Title IX coordinator refers a report or Complaint of Sex Discrimination that is not Sex-Based Harassment involving a student Party for an appropriate response under the Nondiscrimination and Equal Opportunity policy, Personnel Conduct policy, CES Honor Code, and other applicable policies and procedures of the university. Complaints of Sex Discrimination addressed under those policies and procedures will be handled in accordance with the applicable requirements of 34 C.F.R. §106.45, which prevail over any conflicting terms in those policies and procedures.

3.4. General Provisions Applicable to All Sex Discrimination Grievance Processes

3.4.1 Confidentiality by University

The university recognizes that Complainants or witnesses of Sex Discrimination might be hesitant to report the incident if they fear it may lead to the discovery of other honor code violations. To help address this concern and to encourage the reporting of Sex Discrimination, the Title IX Office will not share the identity of a Complainant or witness with the Office of Honor unless requested by that person or if a person’s health or safety is at risk.

Further, during the pendency of the grievance process, the university will keep confidential the identity of any individual who has made a report or filed a Complaint of Sex Discrimination, any individual who has been reported to be a perpetrator of Sex Discrimination, and any witness; except as required by law, as necessary to carry out this policy, or as may be permitted by the Access to Student Records (FERPA) policy.

The university does not prohibit Parties from discussing Sex Discrimination allegations, especially (i) as necessary to gather and present relevant evidence; (ii) to consult with family members, confidential resources, or advisors; or (iii) to otherwise prepare for or participate in the grievance process. However, given the sensitive nature of Sex Discrimination allegations, all participants in a grievance process are requested to keep the allegations and investigation proceedings confidential insofar as possible.

3.4.2 Impartiality

Grievance administrators—including the Title IX coordinator, investigators, and reviewers—must treat the Parties equitably and presume the Respondent is not responsible for alleged conduct until a determination is made at the conclusion of the grievance process. Grievance administrators should strive to objectively evaluate all relevant evidence, including any information tending to show the Respondent’s responsibility, or that the Respondent is not responsible, for Sex Discrimination. No grievance administrator may participate in the grievance process if he or she has a conflict of interest or bias for or against Complainants or Respondents generally or individually. Determinations regarding any person’s credibility may not be based on the person’s status as a Complainant, Respondent, or witness.

3.4.3 Overlapping Complaints and Concurrent Investigations or Processes

The university may consolidate Complaints of Sex Discrimination against one or more Respondents, by one or more Complainants, and/or between the same Parties, when the allegations of Sex Discrimination arise out of the same facts or circumstances. If a Complaint includes multiple allegations of Sex Discrimination that do not arise out of the same facts or circumstances or that are not subject to discipline under the same university policies or procedures, the university may address them separately. If a Complaint includes allegations of both Sex Discrimination and other types of misconduct, the university may address the allegations of Sex Discrimination under this policy and related grievance processes and may refer the other allegations to the appropriate office or unit of the university, subject to any applicable confidentiality provisions and amnesty protections, for handling under the pertinent university policies. The Title IX coordinator will provide written notice to all affected Parties of any decision to consolidate the allegations in any Complaint(s) or to address them separately.

Generally, a university investigation or resolution of a Complaint of Sex Discrimination will not be suspended pending the conclusion of a criminal investigation or any other investigation, including another university investigation. Although the findings and conclusions of one investigation will not necessarily determine the outcome of any other, any information or findings developed in any university or external investigation may be shared with and considered in any other university investigation, subject to applicable confidentiality provisions and amnesty protections.

3.4.4 Emergency Removal of Respondent

The university may remove a Respondent from BYU–Hawaii’s Education Program or Activity on an emergency basis at any time if it determines there is an imminent and serious threat to the physical health or safety of anyone (see Banning policy). In such cases, the university will conduct an individualized safety and risk analysis and will provide the Respondent with notice and an opportunity to challenge the decision immediately following the removal according to the ban review process.

3.4.5 Nonretaliation

The university prohibits any type of Retaliation. Individuals who feel they have been the subject of Retaliation should report the incident to the Title IX coordinator. Making a materially false statement in bad faith during a Sex Discrimination grievance process is grounds for discipline, and imposing discipline in that case does not constitute Retaliation. However, a university determination that the Respondent was or was not responsible for Sex Discrimination, alone, is not sufficient to conclude that any Party made a materially false statement in bad faith.

3.4.6 Required Participation of Employees

In addition to the mandatory reporting and notification requirements in Section 2.1, the university may require an employee to participate as a witness in, or otherwise assist with, an investigation under this policy or related grievance process.

3.4.7 Delivery of Documents and Extensions of Time

Delivery of a document occurs when a Party physically receives the document, when it is sent by email to the Party’s email address on file with the university, or three (3) business days after it is sent by U.S. Mail to the Party’s residential address on file with the university.

A Party may ask the university for an extension of any deadline imposed by this policy or any related grievance process, and the university may extend timeframes of major stages of a Sex Discrimination grievance process for good cause with a written explanation to both Parties. Good cause may include considerations such as the absence of a Party or a witness, ongoing law enforcement activity, or the need for language assistance or accommodation of disabilities.

3.5 Informal Resolution

Prior to the conclusion of any Sex Discrimination grievance process, the university may offer to the Parties the option to resolve a Complaint or report of Sex Discrimination through an informal resolution process as set forth in the Sex Discrimination Informal Resolution Procedures, which allows the Parties to forego all or some of the grievance process.

3.6 Record Keeping

The university will maintain the following records for a period of seven (7) years or as required by the University Records Retention policy, whichever is longer:

For each Complaint of Sex Discrimination, records documenting the informal resolution or grievance process followed by the university, including the outcome.
For each report that the Title IX coordinator receives about conduct that may constitute Sex Discrimination, records documenting the actions the university took.
All non-privileged materials used to train grievance administrators, which the university will also make available for inspection upon request by members of the public.

3.7 Training

The university is committed to educating members of the campus community on Sex Discrimination prevention and response. All employees must be trained on:

the university’s obligation to address Sex Discrimination in its Education Program or Activity;
the scope of conduct that constitutes Sex Discrimination, including the definition of Sex-Based Harassment, and
all applicable notification and information requirements required by this policy.

This training is required for all employees (1) upon hiring, (2) upon a change of position that alters duties under this policy, and (3) annually after (1) or (2). Supervisors are responsible to ensure that employees within their areas of stewardship are properly trained.

Additionally, all individuals involved in administering any Sex Discrimination grievance process, including the Sex-Based Harassment Grievance Procedures, must have received training within the previous six (6) months on:

the Sex-Based Harassment Grievance Procedures;
the definition of Sex-Based Harassment;
the scope of BYU–Hawaii’s Education Program or Activity;
how to conduct an investigation, grievance process, and informal resolution process, as applicable;
how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and
the meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance.

This training must not rely on sex stereotypes. All non-privileged materials used to provide training under this section will be made available upon request for inspection by members of the public.

4. Related Policies and Procedures

1 Because BYU–Hawaii is an institution of higher education controlled by The Church of Jesus Christ of Latter-day Saints ("Church"), provisions or interpretations of Title IX that conflict with the Church’s religious tenets do not apply to BYU–Hawaii.