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Procedures for Reporting, Investigating, and Hearing Alleged Violations of Certain College Policies

Berea College is committed to investigating promptly and resolving all complaints of conduct violating the College’s Sexual Misconduct Policy or other policies concerning prohibited discrimination, or the College’s policy on consensual relationships between employees and students (any of the foregoing being referred to as a “Violation”). Prohibited discrimination is defined as unfair or unequal treatment on the basis of any distinguishing characteristic protected by law or the College policy (see Nondiscrimination Policy).

The College provides the following procedures (the "Procedures") for reporting and investigating allegations and hearing complaints involving students, faculty, or staff. These Procedures may also be used, at the discretion of the President of the College, in other matters involving alleged violations of College policy where no specific investigative or hearing procedures have been designated. These Procedures are not used for matters arising under the College's Title IX Sexual Harassment Policy.

Complaints (other than those alleging sexual misconduct) involving only students (as both complainants and respondents) fall under the jurisdiction of the Student Conduct and Judicial Codes. Claims of harassment, sexual misconduct, etc., directed toward third parties such as College contractors or vendors are not within the scope of these Procedures and will be addressed administratively or otherwise.

A person who believes that they have been the victim of a Violation or desires to report a Violation may choose to pursue and resolve the situation privately without invoking these Procedures.  However, pursuing the matter privately does not preclude subsequent use of these Procedures. Students or employees of the College seeking information or having questions related to these Procedures may contact the Title VII/IX Coordinator.

Reporting

  1. If a person (a) who believes that they have been the victim of a Violation, or (b) has firsthand knowledge of a Violation (such person being referred to as the “complainant”), chooses to pursue the allegation through the informal or formal hearing processes described below, they begin by making a complaint to the College’s Title VII/IX Coordinator. (A “complaint” is defined as a written communication from a complainant that leads to investigation and action.) 
  2. A complainant may wish to make a record of the behavior constituting the Violation, including the date and a description of exactly what happened, who said or did what, and any other observations. The names of any witnesses to the incident may also be recorded. Such a record is best made promptly to ensure its greater reliability.
  3. The Title VII/IX Coordinator will contact the person accused of a Violation (the “respondent”), provide the person with a copy of the complaint, and ask that a written response to the complaint be submitted by a specified date. 
  4. The Title VII/IX Coordinator shall discuss with the complainant and respondent any interim/supportive measures (such as changing housing or labor assignments, workplace accommodations, security escorts or class schedule changes) that are appropriate prior to resolving the complaint.
  5. If a person believes they may have committed a Violation, that person (the “respondent”) may elect to report the matter to the College’s Title VII/IX Coordinator or the respondent’s supervisor, and both will keep a record of the incident.  

Investigation

  1. The Title VII/IX Coordinator will investigate or assign investigators to investigate any complaint of an alleged Violation and inform the respondent as soon as this is appropriate during the investigative process.
  2. If there is an initial determination that there is no reasonable basis upon which to conclude that the alleged Violation has occurred, the Title VII/IX Coordinator will notify the complainant, the respondent, and any appropriate administrator or other staff member who has been involved in the investigation, and the compliant will be dismissed. The complainant may, within five calendar days of such a dismissal, appeal to the President for review of the Title VII/IX Coordinator’s action. The respondent will be notified if an appeal is submitted. The decision of the President on any such appeal is final and binding, and said decision is simultaneously conveyed in writing to the complainant, the respondent, and anyone else the President believes should be informed.
  3. If there is an initial determination that there is a reasonable basis to believe that the alleged Violation has occurred, the Title VII/IX Coordinator will report the matter to the appropriate senior administrator (usually the vice president of the College division in which the respondent is employed) and will advise the complainant of options in resolving the complaint. The Title VII/IX Coordinator will also inform the respondent of the complaint if this has not already occurred during the investigation.
  4. The Title VII/IX Coordinator may recuse from participation in a case, when appropriate, and a substitute for the Title VII/IX Coordinator will be appointed by the President.

Actions

A complaint not dismissed by the Title VII/IX Coordinator can be resolved informally or through a formal hearing process utilizing these Procedures.

Resolving Complaints Informally

  1. The complainant, whether student, faculty, staff member, or administrator, may request to have the matter informally resolved by the senior administrator (usually the Vice President of the Division in which the respondent is employed) to whom the respondent reports. The respondent must also be informed of this choice of process. If the parties cannot agree on an informal process, the complaint will be acted upon in the formal process as provided in these Procedures.
  2. Informal processes may vary, depending on the circumstances surrounding the complaint, but the senior administrator who is asked to examine the complaint must begin the process as soon as possible after they have received the complaint and investigative report but in no case more than 15 calendar days after receipt.
  3. In resolving complaints informally, the senior administrator must consult with the Title VII/IX Coordinator regarding appropriate action in order to provide fair and consistent responses to similar matters across campus.
  4. If the complaint is informally resolved to the satisfaction of the complainant, respondent, and senior administrator, the administrator shall simultaneously provide a statement of resolution in writing, including any terms of the agreement, to the complainant, respondent, and the Title VII/IX Coordinator.
  5. Either party may choose to end the informal process at any time and move directly to the formal hearing procedures. If a complaint being handled informally cannot be resolved, then a formal hearing may be requested (as described below).

Resolving Complaints through the Formal Hearing Process

  1. If the parties fail to agree to informal resolution, the formal hearing process shall be initiated. The matter will proceed even if any party chooses not to participate. The written complaint shall serve as the charges submitted to the hearing panel.
  2. Formal complaints will be heard by a panel chosen from the pool of elected members of the Campus Conduct Hearing Board. The panel shall consist of three persons selected by the President of the College according to policy governing the Campus Conduct Hearing Board. The President shall name the panel’s chairperson. The hearing process should begin as soon as possible and the panel must ordinarily conclude its work no less than 15 calendar days after the complaint has been submitted to the panel. Once the panel is appointed and organized, the panel’s chairperson or the appropriate administrator shall give the complainant and respondent at least two calendar days’ notice of the time and place of the hearing.
  3. To the extent reasonably possible, hearings shall be conducted in a manner that does not inflict additional emotional trauma.  Requests for special hearing accommodations shall be addressed to and decided by the College’s Title VII/IX Coordinator.
  4. Except in extraordinary circumstances, the respondent is entitled to confront the accuser(s) and any witnesses at the hearing. The right of confrontation may be waived by the absence or gross misconduct of the respondent. The complainant and the respondent may each have one personal advisor present at the hearing. Such advisor(s) must be a full-time member of the faculty, staff, or administration of the College. Persons not directly involved in the hearing are not allowed to attend.
  5. Other than the complainant and respondent, those who may testify are normally limited to witnesses or persons with personal knowledge of the incident or those who investigated the incident. Character witnesses are not permitted either for the complainant or respondent. Any available documentary evidence (e.g., email, letters, written documents or other records) that the parties intend to introduce should be submitted to the panel Chair in advance of the hearing.
  6. The standard of proof in a formal hearing is whether, based on all the evidence presented, a reasonable person would conclude that it is more likely than not that the alleged Violation did occur (preponderance of evidence standard).
  7. The Title VII/IX Coordinator, Director of Human Resources, or another member of the faculty, administration, or staff of the College appointed by the President, will serve in an advisory capacity to the hearing panel and may be present for the formal hearing, but such advisors may not participate in the deliberations, findings or recommendations of the hearing panel.
  8. Both the complainant and the respondent shall be kept informed of the status of the formal process by the Title VII/IX Coordinator.
  9. If the hearing panel concludes that the alleged Violation has occurred, the Title VII/IX Coordinator then shall provide whatever information there may be to the panel about other Violations involving the respondent of which the respondent has been previously informed and any disciplinary action taken. The Title VII/IX Coordinator may be asked to provide a recommendation regarding disciplinary action that may be warranted in a given case. The hearing panel will then deliberate regarding sanction recommendation(s).
  10. The hearing shall conclude with the panel verbally stating the decision and, if applicable, the recommended sanction(s).
  11. Within 15 calendar days following the hearing, the panel must submit a written report of its findings and recommendation(s) to the President. Upon receipt, the President shall provide a copy of this report to both the complainant, the respondent, and the Title VII/IX Coordinator or whoever served in the advisory capacity for the hearing panel. 
  12. If the respondent is a member of the College Faculty and believes that the underlying facts of the alleged Violation and findings of the hearing panel for the complainant have been based upon speech or behavior in a classroom, laboratory, public lecture, or comparable environment that is protected by academic freedom, they may appeal the findings in writing to the Faculty Appeals Committee within 15 calendar days, showing cause for the claim of academic freedom. If the appeal is accepted, the Faculty Appeals Committee must hear the claim as soon as possible and submit its findings to the President and respondent within 15 calendar days after the conclusion of its hearing.
  13. Either the complainant or the respondent may request the President to reconsider the findings of the panels of either the Campus Conduct Hearing Boar or the Faculty Appeals Committee. Such request for reconsideration are limited to two circumstances: (1) the discovery of new evidence bearing on the complaint; and (2) indications that improper procedures were employed in the investigation or in the formal hearing. The request for reconsideration must be made in writing within five calendar days after the parties have received the original report of findings from the President.
  14. The President weighs the recommendations of the hearing panel (and, if applicable, the Faculty Appeals Committee) and any request for reconsideration in arriving at a decision. That decision is simultaneously conveyed in writing to the complainant, the respondent, the chairperson of the panel, Title VII/IX Coordinator, and anyone else the President believes should be informed. If the respondent is an employee, the decision shall also be forwarded to Human Resources. The President may provide such information in the written statement including details from the panel's reports, as the President deems appropriate.
  15. The decision of the President on the findings and sanctions in any case is final and binding.

General Guidelines

  1. In the reporting, investigating, and hearing of alleged Violations, every effort shall be made to ensure confidentiality and the privacy of the parties involved, but complete confidentiality cannot be guaranteed, particularly if formal charges are filed. Requests for confidentiality shall be addressed to and decided by the College’s Title VII/IX Coordinator. At all stages, investigations, administrative hearings, and formal hearings complaints are to be handled discreetly and expeditiously. Every effort will be made to contain hearsay and to minimize the potential for harmful effects on the individuals involved and the College community.
  2. Both the complainant and the respondent shall be assured of fair treatment throughout the investigation, informal resolution and formal hearing processes. Retaliation or intimidation by either party is prohibited by law and College policy; neither will be tolerated. Any such retaliation or intimidation is subject to disciplinary action up to and including termination or expulsion.
  3. Fabricated charges of alleged Violations or false testimony are serious offenses. Persons found to have fabricated charges or testified falsely will be subject to disciplinary action up to and including termination or expulsion.
  4. At least annually, the Title VII/IX Coordinator shall inform the President of reports of alleged Violations and the results of any investigations or complaints.
  5. All references in these Procedures to “calendar days” shall mean all days except those days officially designated as College-wide holidays each year by the College’s Office for Human Resources.

Disciplinary and Remedial Measures

When a Violation has been determined to have occurred, disciplinary measures shall be appropriate to the severity of the incident. Discipline may include one or more of the following actions: warning, reprimand, required letter of apology, changed assignment, relocation of office, required counseling, suspension, demotion, loss of salary, and other appropriate penalties, up to and including termination. A finding of a violation of Non-Consensual Sexual Intercourse must result in suspension or termination.  For students, discipline may include probation, suspension, expulsion or other sanctions as provided under the Student Conduct Code, except a violation of Non-Consensual Sexual Intercourse must result in suspension or expulsion. The College shall undertake reasonable measures to remedy the Violation and prevent recurrence.

 

Options Beyond the College

Individuals may have legal recourse beyond these Procedures.  In particular, a complainant may file a formal complaint with the Office of Civil Rights (OCR) under Title IX (for employees or students), with the Equal Employment Opportunity Commission (EEOC) under Title VII (for employees), file a civil lawsuit or pursue a criminal complaint with law enforcement authorities.