Sexual Harassment and Gender Discrimination Training For Faculty/Employees for Norman-Based Programs

1. Sexual Harassment and Gender Discrimination Training For Faculty/Employees for Norman-Based Programs

2. Sexual Harassment and Gender Discrimination Training For Faculty/Employees The University of Oklahoma is committed to providing an educational and employment environment free from discrimination. This training course deals with gender-based discrimination that can take a variety of forms, in both the employment and educational context, under Title IX of the Educational Amendments Act of 1972 as well as Title VII of the Civil Rights Act of 1964.

3. DISCLAIMER Please be aware the content of the materials that follow may be disturbing to some. However, to ensure the University has an environment free from harassment and discrimination, and pursuant to federal requirements, the University must address these sensitive topics. If you have been the subject of a traumatic event such as those described, the University’s Sexual Assault Response Team Advocates are available to assist you 24 hours a day/7 days a week:(405) 615-0013. Or, Number Nyne Crisis Line:(405) 325-NYNE. For Tulsa-based programs:(918) 660-3163.

4. GenderDiscrimination • What is “Gender Discrimination”? • Gender discrimination can take many forms and includes sexual harassment, gender-based harassment/gender-based bullying, sexual orientation discrimination, and sexual violence. Gender discrimination or sexual orientation discrimination involves a university or its employees taking an “adverse action” against a person because of his/her gender or sexual orientation. • What is an “Adverse Action”? • It includes, but is not limited to: • Disciplinary action • Reduced pay • Lack of promotion • Lower grades

5. GenderDiscrimination • Gender Bias and Assumptions • Unconscious bias can also be a basis for gender discrimination claims. Much of human behavior is governed by mental processes that exist outside of social awareness or conscious control. Examples of common social assumptions proven by the research conducted by the Women in Science and Engineering Leadership Institute include: • male and female evaluators attributing successful performance of a task to skill for men and to luck for women even though each succeeded equally; • female post-doctoral candidates needing substantially more credentials to achieve the same rating as male candidates for similar positions; • assumptions about family responsibilities and a candidate’s career path negatively influencing evaluation of a candidate’s merit despite evidence of productivity.

6. GenderDiscrimination • Gender Bias and Assumptions • There are several ways in which University employees can ensure implicit bias does not occur, including but not limited to: • developing and applying consistent criteria for evaluating candidates, students, and employees; • spending sufficient time consistently evaluating each person on his or her merits; • periodically evaluating decisions and considering whether qualified women and minorities are included in hiring or appointments or whether they are negatively impacted by decisions. If so, determine whether implicit bias is a factor and correct it.

7. Sexual Orientation Sexual orientation discrimination is shown by taking an adverse action: • because someone does not act or look the way another believes a male or female should look/act, or • because someone either has, or is believed to have, a specific sexual orientation. e.g.: Offering Mr. Joe Smith a job, but rescinding the offer once you find out he is planning on having a sex reassignment surgery.

8. Sexual Harassment Can Take Two General Forms Sexual harassment is a form of gender discrimination and can take two general forms: quid pro quo and hostile environment as discussed below: 1. Quid pro quo (Latin for “this-for-that”) is a person in a position of authority: • making unwelcome sexual advances, requesting sexual favors, or other verbal or physical conduct of a sexual nature; and either • indicating, explicitly or implicitly, that failure to submit to, or the rejection of, such conduct will result in adverse educational or employment action, or • conditioning participation in an educational program or institutional activity or benefit upon the complainant’s submission to such activity. e.g.: A sexual sexual harassment claim could arise where a supervisor indicates that a better schedule would be available for an employee if she agreed to date the supervisor (or she would receive an unfavorable schedule if she refuses).

9. Sexual Harassment Can Take Two General Forms (continued) 2. Hostile environment is the creation of an environment through: • actions or words that are • sexual in nature, or • based on gender, and • are unwelcome, • severe, • pervasive, and • objectively offensive • such that it has the effect of unreasonably interfering with, denying, or limiting someone’s ability to participate in, or benefit from, the University’s educational program and/or activities. Sexual harassment can be committed against a person of either sex by a person of either sex. A person can be sexually harassed by a person of the same sex. Anyone can be harassed regardless of age, appearance, gender or economic status. Sexual harassment can occur between a supervisor and an employee, among colleagues or employees, among students, or between a student and faculty or staff member. It can occur between vendors or persons temporarily on campus and an employee, student, faculty, or staff member. It can occur on-the-job or off-the-job, on-campus oroff-campus. e.g. Joe and John are co-workers. Joe continually asks John about his sex life and whether he is satisfied. Joe constantly asks John to go have beers every Friday and see where the night leads them. Joe has begun rubbing John’s neck at the office. Assuming this is unwelcome, there is a potential policy violation.

10. Sexual Assault/Misconduct There are several forms of sexual misconduct that are also considered forms of gender discrimination and sexual harassment. Although these acts of misconduct may also be considered crimes, they are policy violations and the University investigates these acts (regardless of criminal proceedings) where they are: • committed between faculty, staff, or students, or • perpetrated on University property and the University has control over the context of the event. Regardless of whether there are potential criminal penalties, it is important for you to know whether an incident reported to you falls within one of these categories to comply with your potential mandatory reporting obligations.

11. Sexual Assault/Misconduct Non-Consensual Sexual Intercourse is defined by the policy as: Any sexual intercourse or penetration of the anal, oral, vaginal, or genital opening of the victim: • including sexual intercourse, or the penetration by any part of a person’s body, or • by the use of an object, however slight, or • by one person to another, and • without consent or against the victim’s will. e.g.: As the sexual aggressor, Bob must have CLEAR words OR actions from Jenny, demonstrating a willingness to engage in the act. Here, she was passive and did not give clear consent. Engaging in intercourse without the ability to clearly identify words or actions demonstrating legal consent can lead to a policy violation, separate and apart from any potential criminal violation. Bob and Jenny both work at the University go out to happy hour after work. Bob has 4 cocktails and Jenny drinks a Coke. Jenny sees that Bob needs a ride home and takes him to his apartment. When they arrive, Bob starts undressing Jenny. Unbeknownst to Bob, Jenny was sexually abused as a child and is incapable of verbalizing her objection to sex. She becomes passive, but does not say “no” and does not push him off of her; however, she does not want to have intercourse. This is a potential policy violation, even if Bob is intoxicated himself, and even if he does not know that Jenny does not wish to have intercourse.

12. Sexual Assault/Misconduct (continued) Non-Consensual Sexual Contact is any… intentional touching, however slight, whether clothed or unclothed, of the victim’s intimate body parts (primarily genital area, groin, inner thigh, buttock, or breast) with any object or body part, without consent and/or by force. It also includes… touching any part of a victim’s body with the perpetrator’s genitalia, and/or forcing the victim to touch the intimate areas another, or any sexually suggestive contact even if it does not involve contact of, or by breasts, buttocks, groin, genitals, mouth, or other orifice (e.g. suggestively stroking a person’s hair, massaging a person’s back without his/her consent). e.g. Mary is at the copier making copies and John comes up behind her and grabs her buttocks and laughs. This is nonconsensual sexual contact even if John is simply kidding and even if he is not Mary’s supervisor.

13. Sexual Assault/Misconduct (continued) Sexual Exploitation occurs when a person takes: • non-consensual, • unjust, • abusive sexual advantage of another • for his/her own advantage or benefit, or • to benefit or advantage anyone other than the one being exploited, and that behavior may not otherwise constitute one of the other sexual misconduct offenses. e.g. non-consensual video or audio-taping of any form of sexual activity; engaging in non-consensual voyeurism, such as observing sexual acts or body parts of another from a secret vantage point; knowingly transmitting a sexually transmitted disease or illness to another.

14. Consent A number of acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual misconduct, and sexual coercion, and many turn on the definition of “consent.” Consent is the act of willingly agreeing to engage in sexual contact or conduct. • Consent is informed, knowing, and voluntary. • Consent is active, not passive. 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 permission regarding the conditions of sexual activity. • Consent to one form of sexual activity cannot imply consent to other forms of sexual activity. • Previous relationships or consent does not imply consent to future sexual acts. • Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercion is unreasonable pressure for sexual activity.

15. Consent(continued) In order to give effective consent, one must be of legal age and have the capacity to consent. Incapacity may result from: • mental disability, • intellectual disability, • unconsciousness/sleep, • age (under 16 years of age), • use of alcohol, drugs, medication, and/or other substances, • consent given by someone who one should know to be, or based on the circumstances, reasonably should have known to be, mentally or physically incapacitated, is a policy violation. Incapacitation is a state where someone cannot make rational, reasonable decisions because he or she lacks capacity to give knowing consent (e.g. to understand the “who, what, when, where, why or how” of their sexual interaction).

16. Consent(continued) Examples of when a person should know the other is incapacitated include, but are not limited to: • the amount of alcohol, medication, or drugs consumed, or • imbalance or stumbling, or • slurred speech, or • lack of consciousness, or • inability to control bodily functions or movements, or • vomiting. The sexual aggressor’s use of alcohol, medications, or other drugs does not excuse behavior that violates this policy. 

17. Other Sexual or Gender-Based Misconduct If based on one’s gender, other forms of misconduct may also constitute violations of this policy including: • Threatening or causing physical harm, extreme verbal abuse, or other conduct that threatens or endangers the health or safety of any person; • Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another; • Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community, when related to the admission, initiation, pledging, joining, or other group-affiliation activity; • Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control, or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the First Amendment); • Violence between those in an intimate relationship with each other; • Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the community.

18. Mandatory Reporting and You UNLESS YOU ARE EXCLUDED FROM MANDATORY REPORTING AS NOTED, YOU are a mandatory reporter for purposes of liability under Title IX. This means you must report immediately to University officials if you become aware of incidents of sexual assault/misconduct where: • the incident occurs on University property, or • the alleged perpetrator is somehow affiliated with the University (student, faculty, staff, contractor, client, or patient), and • the action is either taken on University property, or in a context controlled by the University, or • the action taken is not on University property, but the victim and perpetrator are both faculty, staff, students, or contractors of the University.

19. Mandatory Reporting and You The University has an obligation to commence an investigation within 10 days of being on notice of a potential policy violation. Notice begins the moment YOU become aware. Timely reporting to University officials is crucial to a proper investigation. If you are a mandatory reporter and fail to report an incident, you may be held individually liable for the failure to report under Title IX by the victim or subsequent victims of the alleged perpetrator. When in doubt, you should report an incident..

20. Where to Report • If you are a mandatory reporter, you must report the incident directly to one of the following offices: • Shad Satterthwaite, EOO and Associate Title IX Officer Norman Campus (405) 325-3546, shad@ou.edu, or • Josh Davis, Associate Title IX Officer, Tulsa campus (918) 660-3107, jmdavis@ou.edu, or • Bobby Mason, Compliance Officer/Associate EOO/Title IX Officer HSC Campus (405) 271-2110, bobby-mason@ouhsc.edu, or • Kathleen Smith, Sexual Misconduct Officer (405) 325-2215, smo@ou.edu, or • Laura Palk, Institutional Equity and Title IX Officer (405) 325-3549, lpalk@ou.edu.

21. Exceptions to Mandatory Reporting Exceptions to the mandatory reporting rule include: • the report is made to you in your capacity as a licensed: • clergy member, • physician, • counselor, • attorney, OR • you are a faculty member with no administrative or student supervisory duties (e.g. you teach or conduct research and do not supervise lab personnel, students or others) Even if you are not a “mandatory reporter”, the University strongly encourages you to report. .

22. Confidentiality of Reports • There are instances where the potential victim does not wish to have his or her name disclosed in a report of sexual assault, violence, or misconduct. In these instances, your initial report may be made in a Jane/John Doe format, withholding personally identifiable information until an evaluation has been made regarding whether the incident poses a threat to the larger University community. • Reports must be made to the individuals noted above even where a victim has indicated he/she has advised local or campus law enforcement. The University has an independent obligation to investigate certain policy violations.

23. Consensual Sexual Relations Policy Violations • The University has a policy against supervisors/faculty dating the employees/students they supervise/teach. • The University has a Consensual Sexual Relations Policy found at http://www.ou.edu/content/eoo/policies/consensual.html. • Where a person is in a supervisory role over another employee/student and is dating the subordinate, the supervisor must notify his or her supervisor so that a management control plan can be put in place. • As part of a management control plan, individuals who are in a position of authority over another may not continue in the authoritative role over the subordinate.

24. Retaliation Retaliation is a separate policy violation from gender discrimination and is any attempt to: • penalize, or • take an adverse employment, educational, or institutional benefit action, including, but not limited to: • making threats, • intimidation, • reprisals, or • taking other adverse action • against a person because of participation in a complaint or the investigation of discrimination, sexual harassment, or sexual misconduct.

25. Consequences of Violating these Policies Where an employee violates these policies, disciplinary action up to and including termination or abrogation of tenure may be imposed or sought once an investigation has been conducted and it is found that more likely than not a policy violation has occurred.

26. Resources Available to the Complainant The University provides several services available to assist complainants of violations of the Sexual Misconduct, Discrimination and Harassment Policy, including: • Sexual Assault Response Team (24/7) (405) 615-0013 - provides free advocates and referrals to other resources on-campus and off-campus. For Tulsa-based programs (8 a.m. – 5 p.m.): (918) 660-3163. • OUPD - (405) 325-2864 - provides law enforcement support. • Tulsa Security - (918) 660-3900 – provides law enforcement support. • Title IX Officer/Sexual Misconduct Officer - (405) 325-2215 - provides administrative remedies including: scheduling arrangements, no contact orders, placing alleged individuals on administrative leave, recommending administrative trespass orders, and referrals to other resources.

27. Minors on Campus All employees should be aware that the University often has minors on its campus for a variety of reasons: • field trips • tours • course credit • camps There are specific best practices with respect to hosting minors on campus located at: http://www.ou.edu/web/landing/policy.html. Should you have a reasonable suspicion of any abuse or neglect of a minor while on University property, or where the minor is in your care at a University-related event, but the abuse may have occurred off-campus, you have an independent obligation under Oklahoma state law to notify the Oklahoma Department of Human Services immediately (1-800-522-3511) and OUPD (405-325-1911). If any incidents also involve violations of the Sexual Misconduct, Discrimination and Harassment policy, you should contact DHS, OUPD or Tulsa Security (918-660-3900) and the University’s Sexual Misconduct Office (405-325-2215).

28. Test Questions • Yes • No Janice, an administrative assistant at the University, is a new mother of twins. To help meet her demands at home, Janice asked her director if she could cut back to an 80% schedule. The director agreed and pro-rated her salary and benefits. Janice’s male and female colleagues began commenting on her “short” workdays. The quality of the items assigned to her diminished. The Office forgot to invite Janice to an annual retreat, and the director did not include her on a major business pitch. All of this occurred despite her maintaining her excellent levels of productivity on a shortened schedule. Is this a potential policy violation?

29. Yes. Although some bias is open and overt, much of it is hidden. Bias arises from social experience and cultural beliefs. Bias affects what we notice about people and how we interpret their behavior. Assumptions are pervasive and are shared by both men and women. Small bias and imbalances like this example can lead to slower advancement for women and can contribute to a claim of gender discrimination.

30. Test Questions • Yes • No Mark is a tenure track professor who dresses and acts in a very feminine style. He is widely considered to be the best professor in the department; however, his Committee A evaluates him poorly because he acts too feminine in his dealings with his colleagues and the Committee has received too many complaints from students and his colleagues that he belongs in the fashion business and not their department. Committee A advises him he should behave in a more masculine manner to obtain tenure. Could this be evidence of discrimination based on sexual orientation?

31. Yes. Reprimands because he does not seem masculine enough could be considered adverse actions based on his sexual orientation or perception of how males should act and behave, rather than based on his actual work performance.

32. Test Questions • Sexual harassment • Nonconsensual sexual contact • Consensual Sexual Relations Policy • A and B A Vice President over an area remarks daily on his female assistant’s attire, indicating how “sexy” she is and suggesting she should open one more button on her blouse. The VP invites the assistant to lunch each day and tells her sexually explicit jokes while at lunch. He strokes her hair, indicating how beautiful she is. During the weekly staff meeting, he jokes to others in the office, while she is present, that if it weren’t for how beautiful she is, he wouldn’t retain her services as she doesn’t know how to answer a phone. The assistant has told the VP she doesn’t like the attention he gives her, but he laughs and ignores her. Which policy violations are applicable here?

33. D. A and B. He is in a position of authority over his assistant and has likely not only created a hostile environment through his constant sexually based comments, but she may also have a claim for quid pro quo harassment as he has indicated he would fire her if she weren’t so cute. This is an implicit threat that if she does not date him, he will fire her. Additionally, his stroking of her hair in combination with his statements to her are likely a violation of the nonconsensual sexual contact policy even though hair is not an intimate body part. It is not a violation of the Consensual Sexual Relations Policy yet as she has not consented to date him nor does the interest in dating appear mutual. If the facts were different, and she were interested in dating him, he would need to cease being her supervisor through a management control plan.

34. Test Questions • Yes • No John and Mary are both students at the University at the University and go out for drinks one evening. Mary drinks 5 shots and has begun slurring her speech and is off-balance when she walks. Mary is very flirtatious with John and is making suggestive comments to him such that he thinks she is interested in an intimate relationship that evening. John is tipsy too and takes her to his apartment. He undresses her and has intercourse with her. She has not indicated she wishes to engage in the act. She does not push him away or say “no”. She remained conscious throughout the incident. Is this a policy violation?

35. Yes. The facts reveal that Mary was likely incapacitated at the time of the intercourse and there is no clear evidence that she willingly and voluntarily consented. Silence and passivity are insufficient to establish consent. Even if Mary acted interested prior to the incident, consent may be withdrawn at any time. Her failure to say no and his intoxication are not defenses to this policy violation, particularly where, as here, he knows how many drinks she consumed.

36. Test Questions • Yes • No • Mary tells Alice, a staff assistant in Student Affairs, about the incident. Alice tells Mary she thinks this is nonconsensual sexual intercourse in violation of the University’s policy, but Mary begs her not to tell anyone as she is embarrassed. Is Alice required to report this to the Sexual Misconduct Officer?

37. Yes. Alice is a University employee and is considered a mandatory reporter for incidents either occurring on-campus or between University affiliated individuals whether on-campus or off-campus. Here, both Mary and John are also University students; thus, the nonconsensual sexual intercourse is a policy violation and Alice must advise the Sexual Misconduct Officer. Alice may initially advise the Sexual Misconduct Officer that the person does not wish to be identified. The Sexual Misconduct Officer will inquire of Alice about the nature of the event to determine whether a threat to the larger community is present if the names of the individuals are not released. The Sexual Misconduct Officer will encourage Alice to advise Mary about the services of the Sexual Misconduct Office with respect to issuing “No Contact Orders” between the parties, ensuring John and others do not retaliate against Mary for bringing a claim, and ensuring that Mary knows all of the available resources both on-campus and off-campus.

38. Test Questions Belinda is an assistant in your department. Several of the female assistants have friended one another on Facebook and text each other at least every other evening. They often go to happy hour together after work. One evening, a man begins flirting with Belinda and asks her out. Unbeknownst to Belinda, her female colleagues see this. He is one of their boyfriends. Belinda begins receiving hateful posts on her Facebook page from her colleagues saying she is such a “B&*+h” and “what a sl*t”. At work, they have begun snubbing her and not speaking to her. Throughout the week, each of them periodically will text her things like “we know what you did this week with him” and “you better watch out; you never know when something will happen to you.” Which potential policy violation has occurred? Sexual Exploitation Sexual Coercion Sexual Harassment Gender-Based Bullying Both C and D.

39. E. Gender-based bullying is repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person physically or mentally. This also creates a sexually hostile work environment. This type of behavior can have a negative impact on the workplace environment and you should report the incident to either your department chair/dean/supervisor and/or the Sexual Misconduct Office, even in instances where you are not considered a mandatory reporter. The University can do a variety of things to cease the behavior, including issuing “No Contact Orders”.

40. Test Questions • Yes • No One day your co-worker tells you about what is clearly a rape that occurred off-campus at a non-University related event by someone not employed by or affiliated with the University. Do you need to report this?

41. No. Where the incident does not occur on campus or where both the victim and perpetrator are not affiliated with the University, there is no duty to report the matter even where the victim is a University employee. However, as a colleague, it would be helpful to provide her/him with information for available resources, such as counseling on-campus and off-campus. SART is always available for University individuals: (405) 615-0013. Tulsa (918) 660-3163.

42. Test Questions • Nothing. There is no evidence Donnie has actually dated a student so there is nothing to report. • Talk to Donnie about his behavior and indicate to him that a policy violation may have occurred. • Call the Sexual Misconduct Officer and report a potential policy violation. • Both B and C Donnie is a tenured University professor and often invites certain of his male students to lunch and dinner, implying that he wishes to assist them in furthering their careers. However, at these lunches and dinners, the conversation is purely personal and has no academic or career counseling content. The students feel he is interested in dating them. He texts these students several times during the week in the evenings, asking them what they are up to and whether they are dating anyone. The students who do not respond to his texts or don’t join him for lunch or dinner are never asked to participate in additional activities or research that will further their academic and career development. Donnie also makes it apparent during class that these students are on his bad side, and they are the only ones who receive poor grades on assignments. Their work product appears to be at least as good as the favored students, if not better. The disfavored students come to you as the department chair to complain. What should you do?

43. D. Both B and C. As the department chair, you have an obligation to ensure that faculty do not engage in conduct that places students at risk. Here, you have enough facts to warrant a discussion with Donnie about his potential policy violation. You should advise him that he should take no retaliatory action against the students for complaining and if the facts are true as stated, a potential policy violation could have occurred. As a department chair, you are a mandatory reporter of potential sexual harassment claims and should report this to the Sexual Misconduct Officer. If the facts are as alleged, Donnie may have engaged in quid pro quo sexual harassment, tying grades to submission to his sexual advances.

44. Test Questions • Mary Sue is a faculty member engaged in discussions with one of her male students about going to graduate school. She tells him he is too handsome to go to graduate school and should concentrate on being a male model instead. She suggests that for his final paper in her class, he should dress in a speedo and gauge other people’s reactions to him. He feels very uncomfortable talking to Mary Sue and feels that her discussions with him are demeaning. He tells her that he doesn’t think this is funny and that he is serious about graduate school. She laughs at him and tells him he should be flattered, and she would be willing to tutor him at home “if he knows what she means.” Is this a policy violation? • Yes • No

45. Yes. The Sexual Misconduct, Discrimination and Harassment Policy applies equally to men and women. Mary Sue’s discussion about how her student looks and suggesting he wear revealing clothes along with her invitation and suggestions are not only unprofessional, but unwelcome sexual advances and are likely severe and pervasive enough as his instructor to constitute sexual harassment.

46. Test Questions • Yes • No You and your graduate student are dating one another. You are married and do not wish anyone to know about your dating relationship. You decide not to advise anyone about the situation and continue to supervise your graduate student. Is this a policy violation?

47. Yes. You are in a position of authority over your graduate students (as you are over your students and any employees or assistants you supervise). The Consensual Sexual Relations Policy prohibits your continuing to supervise someone with whom you have a relationship. You need not indicate why you need a management control plan in place, but you must request one from your supervisor (e.g., your department chair, associate dean, dean, provost).

48. Test Questions • Yes • No You are a faculty member and one of your students has filed a sexual harassment claim against you with the Sexual Misconduct Office and another student of yours has testified as a witness in the complaint mid-semester. You believe the witness-student is simply attempting to stir the pot and you do not believe you can continue teaching either student so you ask them both to withdraw from your class. Is this problematic?

49. Yes. Before taking any adverse action against someone for being a witness to (or filing of) a complaint, you should discuss the matter with the Title IX Officer and Legal Counsel, as it is likely that requesting a withdrawal by these students under the facts as noted above would be considered retaliation. This is a separate policy violation and could result in individual liability for you.

50. Test Questions • OUPD • Sexual Misconduct Office • DHS • A, B and C You are in charge of a summer enrichment program at the University at which 12 and 13 year olds attend. One day you learn a male camper is sexually harassing a female camper on University property. Who should you call?