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Title IX Grievance Process

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Title IX Grievance Process Title IX Grievance Process

Effective as of January 2025

Contents

  1. Jurisdictional Requirements
    1. Within Title IX Definition
    2. Timing
    3. Additional Requirements
  2. Prior to the Grievance Process Hearing
    1. Scheduling
    2. Hearing Coordinator
    3. Decision-Makers
    4. Notice of Grievance Process Hearing
    5. Support Person/Advisor
    6. Accommodations
    7. Findings of Relevance
    8. Witnesses
    9. Pre-Hearing Conference
  3. Grievance Process Hearing
    1. A. Conducted Over Technology
    2. B. New Information
    3. C. Access to Report and Information from Investigative Procedure
    4. D. Presence at Hearing
    5. E. Recording
    6. F. Questions by Decision-Makers
    7. G. Questions by a Party at the Hearing
    8. H. Hearing Rules/Rules of Decorum
  4. Decision-Makers’ Finding
    1. A. Student Respondent Notice of Outcome
    2. B. Employee Respondent Notice of Outcome
  5. Appeal
  6. Other Considerations

The Title IX Grievance Process (Process) is applicable to student or employee (staff or faculty) conduct that falls under the definition of Title IX Sexual Harassment or Title IX Sexual Violence under the Policy Against Discrimination, Harassment & Sexual Violence (Policy) and which also meets the jurisdictional and timing requirements noted herein.1 To access this Process, the Complaint Resolution Process must first be initiated. This Process will only be used after a determination has been made, through the Complaint Resolution Process, that the alleged conduct has met all of the requirements necessary to access this Process (as discussed below). If the requirements for this Process are not met, then the allegations of Title IX Sexual Harassment and/or Title IX Sexual Violence will be dismissed and both parties will be notified of that dismissal in writing. If the alleged conduct in the Formal Complaint could violate another section of the Policy, the matter may still be adjudicated through the process in the Complaint Resolution Process. A determination of which process will be used will be made by the Associate Vice-President for Equity, Access & Equal Opportunity (AVP) (or their designee), as the Title IX Coordinator for the College. For more information about the determination process, please see the Complaint Resolution Process.

Jurisdictional Requirements

For the conduct alleged in the Formal Complaint to be subject to the Title IX Grievance Process (Process), the following requirements must be met:

Within Title IX Definition

Alleged conduct that will be addressed under this Process must fall under the definition of Title IX Sexual Harassment and/or Title IX Sexual Violence under the Policy Against Discrimination, Harassment & Sexual Violence (Policy). If the conduct does not fall within one of those definitions, it will not be adjudicated under this Process. If the alleged conduct falls under another definition included in the Policy, the matter may still be adjudicated through the process in the Complaint Resolution Process, as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee). For more information about the determination of which process applies to the alleged conduct, please see the Complaint Resolution Process.

Timing

Alleged conduct that will be addressed under this Process must have occurred after August 14, 2020. If the conduct occurred prior to August 14, 2020, it will be dismissed from this Process. If the alleged conduct still falls under the Policy, the matter may still be adjudicated through the Formal Complaint Resolution process in the Complaint Resolution Process, as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee). For more information about the process for determining which process applies to the alleged conduct, please see the Complaint Resolution Process.

Additional Requirements

Alleged conduct that will be addressed under this Process must also meet the three additional jurisdictional requirements outlined in the Title IX Regulations. If the alleged conduct does not meet all three jurisdictional requirements discussed below, it will not be adjudicated under this Process. If the alleged conduct still falls under the Policy, the matter may be adjudicated through the Formal Complaint Process as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee). For more information about the determination of which process applies to the alleged conduct, please see the Complaint Resolution Process.

United States

Alleged conduct that will be addressed under this Process must have happened against an Emerson community member (student, staff, faculty) while in the United States. If the conduct happened outside of the U.S., it does not meet this jurisdictional requirement and will not be adjudicated under this Process.2

College Program or Activity

Alleged conduct that will be addressed under this Process must have occurred in an Emerson College program or activity. This means the alleged conduct occurred in a location, event, or circumstance in which Emerson exercised substantial control over both the Respondent and the context in which the alleged conduct occurred. Examples of an Emerson location, program or activity include, but are not limited to, inside an Emerson residence hall or at an off-campus trip managed and sponsored by the College. If the conduct happened outside of a College program or activity (i.e. off-campus or in a non-Emerson program or activity), it does not meet these jurisdictional requirements and will not be adjudicated under this Process.3 The determination regarding whether the conduct occurred in an Emerson College program or activity will be made during the Process Determination under the Complaint Resolution Process.

Complainant Participating or Attempting to Participate

At the time that the Formal Complaint was filed, the Complainant must be participating in or attempting to participate in an educational program or activity of Emerson College. A student who has been admitted but is not yet attending Emerson is attempting to participate in a College educational program or activity. A person who is actively employed by the College is participating in an activity of Emerson. If the Complainant is not participating or attempting to participate in a College educational program or activity, their claim does not meet this jurisdictional requirement and will not be adjudicated under this Process.4 The determination regarding whether the Complainant was participating or attempting to participate in an Emerson College program or activity will be made during the Process Determination under the Complaint Resolution Process.

Prior to the Grievance Process Hearing

The Title IX Grievance Process (Process) involves a live Grievance Process Hearing (Hearing) for the resolution of a Formal Complaint. After the Investigative Procedure has closed under the Complaint Resolution Process and a determination has been made that the alleged conduct in the Formal Complaint meets the requirements for this Process, preparations for the Hearing will begin.

Scheduling

Once a matter is deemed eligible for this Process, the Hearing will be scheduled in a reasonably prompt timeframe. If the Process is started near or after the end of an academic semester or the Hearing cannot be completed prior to the end of the academic year, the Hearing will be held as soon as practical. This will typically be immediately after the end of the term, during a break or over the summer, depending on the availability of the parties, witnesses, and College officials. If the Respondent is scheduled to graduate prior to the resolution of a Formal Complaint under this Process, a hold may be placed on their graduation and/or official transcripts until the complaint is fully resolved (including any appeal).

Hearing Coordinator

The Office of Equal Opportunity (OEO) will act as the coordinator for the Hearing under the Process. OEO will be responsible for scheduling the Hearing, providing notifications to parties and witnesses, supporting the Hearing Chair, distributing any information from the Investigative Procedure, recording the Hearing, and any other administrative tasks necessary for the implementation of this Process. The Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee), as the Title IX Coordinator, will attend all meetings, conferences and hearings in this Process.

Decision-Makers

The decision of whether the Respondent is Responsible or Not Responsible for violating the Policy Against Discrimination, Harassment & Sexual Violence (Policy) based on the conduct alleged in the Notice of Formal Complaint (as amended) will be made by the Decision-Makers. The Decision-Makers will consist of one to three individuals who have been trained on the Process, issues of discrimination, harassment and sexual violence, how to conduct a hearing, issues of relevance, impartiality and any technology that will be used during the Hearing. The Decision-makers may be College employees (staff or faculty), someone from outside of the College, or a combination thereof. The Decision-Makers will be selected at the sole discretion of the Title IX Coordinator (or their designee). The names of the Decision-Makers will be communicated to the Complainant and Respondent prior to the Pre-Hearing Conference. If either the Complainant or Respondent believes there is a possible conflict of interest with any of the Decision-Makers, it must be communicated to the Title IX Coordinator within three (3) business days after notice of the names of Decision-Makers. The Title IX Coordinator then has the discretion to assign a different member to that panel. Once three (3) business days have passed since the Complainant/Respondent was notified of the names of the Decision-Makers, the panel will become final, and there will be no further opportunity to raise potential conflicts of interest with the Decision-Makers. One Decision-Maker will be named as the Hearing Chair, at the sole discretion of the Title IX Coordinator. Throughout this Process, the Decision-Maker and/or the Chair will have the ability to consult with the Title IX Coordinator as necessary.

The Decision-Makers will be given access to the Final Investigative Report and the supporting materials for consideration when making their finding. The Panel will not be given access to the gathered information from the Investigative Procedure that was not used in the Final Investigative Report. The Decision-Maker(s) will also not be given access to the interview transcripts, except that excerpts may be shared as needed to answer any questions the Decision-Makers may submit to the Title IX Coordinator. If a party feels that something in the gathered information5 or interview transcripts were improperly excluded from the Final Investigative Report and should be considered at the Hearing, they will need to present that information to the Hearing Chair for a review as to relevance during the Pre-Hearing Conference6 (as discussed below).

Notice of Grievance Process Hearing

After the Investigative Procedure has closed under the Complaint Resolution Process and a determination has been made that this Process applies to the Formal Complaint, the parties will receive a Notice of Hearing from the Title IX Coordinator (or their designee). This Notice will be provided at least ten (10) business days prior to the proposed date for the Hearing. The Notice will propose a date for the Pre-Hearing Conference and Hearing. With the Notice, the parties will again be given access to the Final Investigative Report, supporting documentation, and the gathered information, all of which was previously shared with the parties in the Investigative Procedure, under the Complaint Resolution Process, for review and written response. Upon written request from the Complainant/Respondent, these materials can also be shared with their respective support person/advisor.

Support Person/Advisor

To fully participate in the Hearing, the Respondent and Complainant must each have a support person/advisor. During the Hearing, only through their support person/advisor, the parties each have the right to submit questions to another party or to witnesses regarding information relevant to the resolution of the Formal Complaint, as determined by the Hearing Chair. A party cannot question another party or witness directly during the Hearing.

If a party does not have a support person/advisor, the College will provide the party with a support person/advisor, of the College’s choice, at no expense to the party. The College-provided support person/advisor may be an employee (staff or faculty) who is trained to act in this capacity or may be someone from outside of the College. The Title IX Coordinator (or their designee), at their sole discretion, will make the decision regarding who the College-assigned support person/advisor will be. The expectation is that any support person/advisor will be reasonably available for all meetings, the Pre-Hearing Conference and the Hearing, and will not cause a delay in the Process based on their lack of availability.

At least two (2) business days prior to any meeting in the Process, the Pre-Hearing Conference or the Hearing, a Complainant/Respondent must provide the Title IX Coordinator with the identity and contact information (e-mail and telephone) of the support person/advisor who will be accompanying them to that meeting. A party is not required to use the same support person/advisor at any stage in the Complaint Resolution Process or in this Process so long as they provide the Title IX Coordinator with timely notice of the change.

A support person/advisor does not make any presentations, or advocate for or otherwise represent the party during the Process. The support person/advisor’s primary role in the Process is only to provide support to the Party. The support person/advisor only actively participates in the Hearing when they are asking questions, on behalf of the party, to the other party and witnesses. The role of the support person/advisor is to read the questions submitted by the party in the hearing. The support person/advisor can only ask questions of the other party or witnesses subject to the Hearing Rules/Rules of Decorum (as discussed below). If at any point a support person/advisor becomes disruptive or is otherwise unable to abide by the requirements of the support person/advisor role or the Hearing Rules/Rules of Decorum, they will be asked to leave the hearing.

Accommodations

A Party or witness (student or employee) who has a disability that may require an accommodation during the Complaint Resolution Process should work with the appropriate office to determine what reasonable accommodations may be available. Students should work with Student Accessibility Services (SAS) (sas [at] emerson.edu (sas[at]emerson[dot]edu); 617-824-8592) to request an accommodation for the Process. Please note that any accommodations for the Complaint Resolution Process must be determined separately from any existing academic or housing disability accommodations. Employees (staff and faculty) should work with Human Resources (HR) (hr [at] emerson.edu (hr[at]emerson[dot]edu); 617-824-8580). All approved disability accommodations must be communicated to OEO (oeo [at] emerson.edu (oeo[at]emerson[dot]edu); 617-824-8999) in writing at least two (2) business days in advance of any meetings or hearings where the accommodations will be needed. Only accommodations approved by SAS or HR will be implemented during the Process.

Findings of Relevance

The final decision regarding whether information is relevant to a Formal Complaint will be made by the Hearing Chair, at their discretion. Only information that is considered relevant for inclusion in the Investigative Report to assist the Decision-maker(s) in deciding, at the conclusion of the process, whether the Policy was violated. The burden of proof in any process always remains with the College. The Investigator will consult with the AVP as needed throughout the Investigative Procedure.

During the Investigative Procedure, the Investigator may utilize some or all of the following information or procedures, at their discretion, and in whatever order the Investigator deems most appropriate.

  1. Documents: The Investigator will review any statements provided by the Complainant/ Respondent, as well as any relevant documents identified by the Parties or witnesses. Relevant documents may include, but are not limited to, both paper and digital items, such as text messages, journal entries, emails and social media communications. If a Party is not in possession of the documents they have identified, they should identify who may have those materials. It will be the responsibility of the Investigator to try, to the best of their ability, to gather the identified information outside the possession of the Parties. As determined by the Investigator, any documents or information relevant to the Formal Complaint and that will be used in the Investigative Report will be disclosed to both the Complainant and Respondent for comment or rebuttal during the course of the Investigation. All relevant documents obtained through the course of the Investigation, regardless of whether they will be included in the Investigative Report, will be shared with the Parties for review and comment during the Investigative Report Review.
  2. Complainant/Respondent Interviews: The Investigator will interview the Complainant and Respondent separately. This meeting is an opportunity for each Party to discuss their recollection of the event(s) in question, supplement any statements previously submitted, voice any concerns, and work with the Investigator to determine what additional information may be helpful to the Investigation. Each Party will receive written notice (usually via email) of the request for an interview. The Investigator may interview the Complainant and Respondent more than once, as necessary, at the discretion of the Investigator. During their interview, the Complainant/Respondent will have the opportunity to learn about the information gathered in the Investigation to date and the Investigator will provide them with an opportunity to comment or respond to that information. As discussed above, the Parties are expected to cooperate and meet with the Investigator in a timely manner. The Parties should also understand that, even if they choose not to participate, the Process will still move forward without the benefit of their input (as discussed above).
  3. Questions by Party: The Parties will have the option to submit questions for the other Party or witnesses. These questions must be submitted in writing to the Investigator who will determine whether each question is permissible and relevant to the pending Investigation. Questions that are repetitive of information already asked in the Investigative Procedure, or that can be considered abusive or badgering, as determined by the Investigator at their discretion, are not relevant. Each Party should understand that the Investigator may not be able to compel non-employee witnesses or the other Party to participate in an interview.
  4. Witnesses: The Investigator will attempt to interview relevant witnesses identified by the Complainant and/or Respondent. Please note that character witnesses are not considered relevant to the Process. The Complainant and Respondent will both have an equal opportunity to identify witnesses for the Investigator and can tell a person they have identified them as a witness and that they may be contacted by the Investigator. Witnesses should not be intimidated, threatened, or improperly influenced in any way by either the Complainant or Respondent or through others (e.g. friends, family members, attorneys, etc.). Any attempt to threaten, intimidate or otherwise improperly influence the testimony of a witness may result in a separate disciplinary action by the College. The Investigator may also interview any other person(s) they believe may have information relevant to this matter, at their discretion. The Investigator will employ best efforts to interview relevant witnesses who are no longer on campus or participating in an Emerson program, attempting to meet with them by phone or internet (i.e. Zoom). Witnesses will review the Privacy/Non-Retaliation Requirements, acknowledging that they have been advised about the prohibition against retaliation and that the unauthorized disclosure of information from this Process is prohibited. The Parties should understand that the Investigator may not be able to compel non-employee witnesses to participate in an interview.
  5. Expert Witnesses: The Investigator reserves the right, at their discretion, to consult with any experts which they deem necessary to the determination of the facts at issue in the Formal Complaint. An expert witness may be consulted to review or provide a professional opinion regarding information discovered in the Investigation including, but not limited to, evidence collection kits and toxicology reports. If a Party wants to offer (and pay for) an expert witness they believe is relevant, the Investigator has the option to interview that expert witness if they deem them to be relevant to the resolution of the Formal Complaint, at their discretion.

Pre-Hearing Conference

Prior to the Hearing, the Hearing Chair will schedule a time to meet with the Respondent and Complainant separately, with their respective support person/advisor, for a Pre-Hearing Conference. The Title IX Coordinator (or their designee) will also attend the Pre-Hearing Conference, as the Hearing Coordinator, to answer any procedural questions that may arise. This conference may be conducted in person or virtually, at the discretion of the Chair.

During the Pre-Hearing Conference, the Chair will review the information that will be considered at the Hearing, which generally will be the information contained in the Final Investigative Report. The Chair will also review any submissions by the parties regarding any witnesses they want to have at the Hearing, as discussed above. At this time, a party should share with the Chair any concerns they have about whether certain information is relevant or not relevant and any information they believe should be included or excluded from the Hearing. If a party believes that something in the gathered materials was improperly excluded from the Final Investigative Report, they should present that information to the Chair at the Pre-Hearing Conference for a finding as to relevance.7 The Chair has the option to confer with the other Decision-Makers and the Title IX Coordinator before making a decision as to relevance. The final decision regarding relevance will be made by the Chair, at their discretion. That decision can be made in the Pre-Hearing Conference or at the Hearing, at the discretion of the Chair.

If there is additional information a party wishes to include at the Hearing, beyond what has been included in the Final Investigative Report, the party must present that information to the Chair for consideration during the Pre-Hearing Conference. However, as discussed below, this information will be limited only to the information gathered during the Investigative Procedure (see New Information below). The Chair will make a finding as to whether the information raised by the party is relevant to the resolution of the Formal Complaint. The Chair has the discretion to confer with the other Decision-Makers and the Title IX Coordinator, but the final decision regarding relevance will be made by the Chair, at their discretion. The Chair also has the discretion to delay the decision on relevance until the Hearing. During the Hearing, a party may ask the Chair to reconsider their finding of non-relevance from the Pre-Hearing Conference based on the information offered at the Hearing. Again, the final decision regarding relevance at the Hearing will be made by the Chair, at their discretion. The Chair will document and share their rationale for their finding of non-relevance during the Pre-Hearing Conference and/or at the Hearing.

During the Pre-Hearing Conference, the parties will have the option to submit questions they would like to pose to a party or witness during the Hearing (See Questions by Party at the Hearing below). The Chair will then make a finding as to the relevance of any submitted questions and will approve questions in advance of the Hearing that a party will be allowed to ask. If a party chooses not to submit questions in advance of the Hearing or has additional questions that arise during the Hearing beyond those presented in the Pre-Hearing Conference, the Chair will make a finding on the relevance of each of those questions at the Hearing pursuant to the Process.

Grievance Process Hearing

The Title IX Grievance Process involves a live hearing which includes a review of the Final Investigative Report and any supporting materials and questioning of the parties and witnesses. All relevant information presented in the Hearing will be considered by the Decision-Makers in determining if the Respondent is Responsible or Not Responsible for violating the Policy Against Discrimination, Harassment & Sexual Violence (Policy). The final determination regarding what is relevant to the resolution of the Formal Complaint will be made by the Hearing Chair, at their discretion. The Chair has the discretion to confer with the other Decision-Makers and the Title IX Coordinator before making a final decision regarding relevance. Any questions regarding the Process during the Hearing will be addressed by the Hearing Chair or the Associate Vice-President of Equity, Access and Equal Opportunity (or their designee), as the Title IX Coordinator.

Conducted Over Technology

The Hearing will be conducted over video conferencing technology (i.e. Zoom). Every participant in the Hearing is expected to participate with their camera on, from a private location, with no one else present who can hear or see the Hearing. The only exception is that a party may participate in the Hearing with their support person/advisor present in the same location. The Decision-Makers also will have the option to conduct the Hearing with all the panel members in the same location. Any witnesses participating in the Hearing can either appear on their own (in a private location with no one else able to hear or see the Hearing) or in the same location as the Decision-Makers. All participants in the Hearing must identify themselves on the recording and appear at the Hearing over video (barring any technical complications). The presence of anyone not authorized to participate in the Hearing or who has not identified themselves at the Hearing is expressly prohibited at all times and is in violation of College policy. If any of the hearing participants do not have access to a suitably private location, they must inform the Title IX Coordinator (or their designee) at least two (2) business days in advance of the scheduled hearing, who will then make arrangements to provide access to a private location on-campus for the Hearing, as appropriate. The recording of the Hearing or any part of the Process by anyone, outside of the official recording by the Office of Equal Opportunity (OEO), is expressly prohibited, as discussed below. A party has the option to request, in writing, that the Hearing be conducted in person. A Hearing may be conducted in person at the discretion of the Title IX Coordinator and only if both parties agree to an in-person hearing.

New Information

The expectation is that all of the information relevant to the Formal Complaint and that a party intends to present at the Hearing was shared and considered in the Investigative Procedure under the Complaint Resolution Process. The parties will have been given ample opportunity to share all available information with the Investigator during the Investigative Procedure. The Hearing Chair has the discretion to exclude from the Hearing any information that was available, but not previously shared in the Investigative Procedure. The Hearing Chair also has the discretion to confer with the Investigator and/or Title IX Coordinator (or their designee) about the scope of the Investigative Procedure and whether the information was available during the Investigative Procedure. Under rare circumstances, and typically when it appears that the information may not have been available earlier, the Hearing Chair has the discretion, in consultation with the Title IX Coordinator, to either allow the information at the Hearing or to delay the Hearing to re-open the Investigative Procedure so that the Investigator may fully review and consider the new information. If the Investigation is reopened, the Investigator has the option, at their discretion, to create a new Investigative Report and to again offer the parties the opportunity to review and comment on the new report as outlined in the Investigative Procedure.

Access to Report and Information from Investigative Procedure

At least ten (10) business days before the Hearing, the parties will again be given access to the Final Investigative Report, supporting documentation and the gathered materials previously shared with the parties during the Investigative Procedure under the Complaint Resolution Process. The Final Investigative Report and supporting documentation will be shared with the Decision-Makers for review prior to the Hearing, except for the gathered materials not included in the Report or otherwise deemed irrelevant during the Pre-Hearing Conference. Upon written request from a party to the Title IX Coordinator (or their designee), that information can also be shared with their support person/advisor.

Presence at Hearing

All parties and witnesses will be given notice of the Hearing and an opportunity to participate in the Hearing. All parties and witnesses in the Hearing should appear for questioning by both the Decision-Makers and/or the support person/advisor for one or both parties. If a party or witness does not appear at the Hearing or does not agree to be questioned by both the Decision-Makers and/or the support person/advisor of a party, the Hearing may still be held in their absence. Decision-Makers may still consider any statements given by a party or witness prior to the Hearing, who then does not participate in questioning at the Hearing, at their discretion. During the Pre-Hearing Conference, the parties can agree to use a witness or party statement without asking them to appear at the Hearing. The Decision-Makers will draw no inferences from a party’s decision not to participate in the Hearing or questioning. If statements of a party who does not participate in questioning at the Hearing are the subject of the alleged conduct in the Formal Complaint (for example – verbal harassment), then those statements would still be included at the Hearing and will be fully considered by the Decision-Makers when making their finding.

Recording

The Hearing will be recorded, either as an audio or video recording (or both) at the discretion of the Title IX Coordinator (or their designee). The Office of Equal Opportunity (OEO) will be responsible for recording the Hearing. Any audio or video recording of the Hearing by anyone other than OEO (party, witness, support person/advisor, other individual) is expressly prohibited at all times during the Pre-Hearing Conference, the Hearing, and any other meetings under the Process, and are a violation of College policy. The Pre-Hearing Conference, the deliberations of the Decision-Makers, and any other meetings held under the Process will not be recorded. After the Hearing, OEO will be responsible for maintaining the recording in accordance with the maintenance of records provisions of the Complaint Resolution Process. A party seeking access to the recording after the Hearing or a transcript of the Hearing (if created at OEO’s discretion) should submit a written request to OEO.

Questions by Decision-Makers

Prior to the Hearing, the Decision-Makers will have had the opportunity to review and consider the Final Investigative Report and Supporting Materials. Based on that information, the panel will have the first opportunity to question any party or witness regarding the information they deem relevant to the resolution of the Formal Complaint. All questions from the Decision-Makers will be asked only by the Hearing Chair.

Questions by a Party at the Hearing

The parties each have the right to question, through their support person/advisor, the other party(s) and any witnesses who appear at the Hearing. A party cannot question another party or witness directly.9 The questioning by the support person/advisor will not involve direct examination, but rather will be limited to those questions that are deemed relevant by the Chair to the issue of credibility and/or the facts at issue in the pending complaint, at their discretion. A party has the option to submit questions in advance at the Pre-Hearing Conference for a finding of relevance by the Chair. Any pre-approved questions may be asked by the support person/advisor for that party at the Hearing in compliance with the Hearing Rules/Rules of Decorum. If a party has questions that have not been pre-approved by the Chair or if a party has additional questions at the Hearing beyond those that have been pre-approved, a finding of relevance must be made for each of those questions by the Chair before the question may be asked at the Hearing.

For questions that have not been pre-approved by the Chair during the Pre-Hearing Conference, a party’s support person/advisor will indicate to the Chair that they have a question for a party or witness. The Chair will then have the option to remove the party or witness to be questioned from the Hearing at their discretion. If a party is removed from the Hearing while a question is being considered by the Chair, that party’s support person/advisor has the option to stay in the Hearing to hear the discussion regarding relevance, at the party’s discretion. The support person/advisor will then present the question they wish to ask to the Chair who will make a finding as to whether the proposed question is relevant to the Formal Complaint. Questions that are repetitive of information already presented to the Decision-Makers (in the Hearing or through the Final Investigative Report) or that are abusive or badgering of a party or witness will be deemed irrelevant. The Chair will note on the recording their rationale for their finding of non-relevance for any specific question.

If a question is deemed to be relevant by the Chair, the party or witness will be brought back into the Hearing, (if they were removed) and the support person/advisor can ask the approved question. This process will be repeated for each question that has not been pre-approved but that a party wishes to ask of a party or witness during the Hearing. The questioning process can be expedited by a party submitting questions to the Chair for pre-approval during the Pre-Hearing Conference or prior to the Hearing. Pre-approved questions can be asked by a party’s support person/advisor without disruption, subject to the Hearing Rules/Rules of Decorum (see below). At no time may a party’s support person/advisor ask a question that has been deemed irrelevant and/or that has not been approved by the Chair.

Hearing Rules/Rules of Decorum

The Hearing is meant to be a forum for presenting relevant, factual information to the Decision-Makers that will be helpful in making a finding of whether the Respondent is Responsible or Not Responsible for violating the Policy. The Hearing is an administrative proceeding and is not meant to replicate a courtroom environment. As such, there is no room for what might be considered “courtroom theatrics” in the Hearing. The expectation is that all participants in the Hearing, including the parties and their support persons/advisors, will remain seated during the Hearing and will maintain a respectful and civilized tone towards all participants in the Process, including the Panel, Title IX Coordinator, other parties, and witnesses. There is no place in the Hearing for argument, badgering, abusive language, raised voices, or disrespectful treatment of any Hearing participant. There will be no opening or closing statements by the parties in the Hearing and no direct examination. The Chair will be responsible for letting a party, support person/advisor, or witness know when it is their turn to speak during the Hearing. The parties and their support persons/advisors are expected not to speak or comment during the Hearing unless they are told by the Chair that it is their turn to speak. Any participant, including parties and their support persons/advisors, who cannot comport themselves in a respectful manner and follow these Hearing Rules throughout the Hearing, as determined by the Chair and/or the Title IX Coordinator, at their discretion, may be removed from the Hearing or their participation in the Hearing may be limited (i.e. controlling when they can un-mute). If a support person/advisor is removed from the Hearing for violating these terms, the Hearing may be suspended until the party in question can be provided with a new support person/advisor, at the discretion of the Title IX Coordinator.

Decision-Makers’ Finding

After the Hearing has been concluded, the Decision-Makers will review the information submitted through the Complaint Resolution Process and the Hearing to make a finding as to whether the Respondent is Responsible or Not Responsible for violating the Policy Against Discrimination, Harassment & Sexual Violence (Policy). The decision of the panel will be made based on the preponderance of the evidence standard -- that is, whether the facts presented in the Complaint Resolution Process and Hearing support a finding that it is more likely than not that the Policy was violated. The Decision-Makers will base their findings solely on the information presented in the Final Investigative Report and supporting materials and at the Hearing, pursuant to this Process. There is no presumption of responsibility for the Respondent. Instead, the question of whether the Respondent has violated the Policy will be made at the conclusion of the Hearing by the panel based on the information noted. The finding of the Decision-Makers will be made by a majority, with each Panel member having an equal vote (including the Hearing Chair).8

The Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee), as the Title IX Coordinator, will consult with the Decision-Makers on questions about the Policy, the Complaint Resolution Process, the Title IX Grievance Process and/or the Hearing as they consider the information to make their finding. However, the decision regarding whether the Policy was violated will be made only by the Decision-Makers.

While the Decision-Makers are solely responsible for making the finding, the Title IX Coordinator will assist the Panel in drafting their findings. The Panel will issue their written findings on the Formal Complaint to the Title IX Coordinator. The written findings by the panel will outline any factual determinations made, any credibility assessments from the Hearing, and the rationale used to reach the finding.

Student Respondent Notice of Outcome

If a student Respondent is found Not Responsible by the Decision-Makers for violating the Policy, the Complainant and Respondent will both be notified by the Office of Community Standards reasonably simultaneously in writing of the outcome, the option to appeal, an explanation of when that outcome becomes final, and the findings from the Decision-Making Panel. The Notice of Outcome will be issued to the parties within seven (7) business days after the findings have been made by the Decision-Makers.

If a student Respondent is found Responsible for a violation of the Policy, the matter will be referred to the Office of Community Standards who will determine and assign the appropriate sanctions or remedies, in consultation with other offices as appropriate, based on the findings of the Decision-Makers. The determination regarding sanctions will include a consideration of the Respondent’s disciplinary history with the College as outlined in the Code of Community Standards. Sanctions for a Responsible finding may include, but are not limited to, loss of privileges, formal warning, disciplinary probation, educational sanctions, suspension, removal from the College and any other sanction noted in the Code of Community Standards. Both the Complainant and Respondent will be notified in writing of the Notice of Outcome which includes the findings from the Decision-Makers, the option to appeal, and an explanation of when that outcome becomes final. The Notice of Outcome letter to the Respondent will include any assigned sanctions. Due to privacy considerations, the Complainant may not be notified of the assigned sanctions, unless they relate to the Complainant (such as a No Contact Order as the sanction), at the discretion of the AVP.

The Notice of Outcome will be issued to the parties within seven (7) business days of the assignment of the sanction. Upon written request, the Title IX Coordinator (or their designee) has the discretion to again give the Respondent/Complainant access to the Final Investigative Report, any supporting documentation, gathered information or information from the Hearing after the Notice of Outcome has been issued.

Employee Respondent Notice of Outcome

If an employee Respondent is found Not Responsible for violating the Policy, the Complainant and Respondent will be notified by Human Resources, and the Respondent’s supervisor or the Provost (or designee), as appropriate, in writing of the outcome, the option to appeal and an explanation of when the outcome becomes final. The written outcome will include the findings from the Decision-Makers. The Notice of Outcome will be issued to the parties within seven (7) business days after the findings have been made by the Decision-Makers.

If an employee Respondent is found Responsible for a violation of the Policy, the Decision-Maker(s) will also decide the appropriate sanctions or remedies based on that finding. The determination regarding sanctions will include consideration of the Respondent’s disciplinary history with the College. Sanctions for a Responsible finding may include, but are not limited to, warnings (verbal or written), censures, training or other educational responses, final warnings, reassignment, demotions, suspensions, and termination. The Respondent will be notified by Human Resources, in writing, of the Notice of Outcome, which includes their findings, the assigned sanction, the option to appeal, and an explanation of when that outcome becomes final. Upon written request, after the Notice of Outcome has been issued, the AVP may again give the Respondent access to the Investigative Report and exhibits and/or the interview transcripts, at the AVP’s discretion. If there is a Complainant, they may also be notified by Human Resources or the AVP of the findings, the option to appeal, and an explanation of when the outcome becomes final, at the AVP’s discretion. Due to privacy considerations, the Complainant will not be notified of the assigned sanctions unless they relate to the Complainant (such as a No Contact Order as the sanction). In the case of a College-Initiated Formal Complaint, an Impacted Party may receive some information about the outcome at the AVP’s discretion.

For employees (faculty and staff), the College reserves the right to issue disciplinary action with respect to conduct that it deems inappropriate regardless of whether it rises to the level of a violation of the Policy or the law.

Appeal

Both the Complainant and Respondent (student, staff or faculty) are entitled to one appeal of the outcome to the Formal Complaint. The filing of an appeal will not stay imposition of any assigned sanction. If the Complainant or Respondent did not participate in the Investigative Procedure, as determined by the Office of Equal Opportunity (OEO), that Party will not have a right to appeal the final outcome. An Impacted Party in an College-Initiated Complaint does not have appeal rights under this process19. An appeal must be submitted in writing to OEO (oeo [at] emerson.edu (oeo[at]emerson[dot]edu)) within five (5) business days of the receipt of the written outcome. The individual who files an appeal is known as the Appellant. The Appellant must submit an Appeal Form with their appeal which is available from OEO. If an appeal is not received within five (5) business days, the outcome will be considered final, and the Complaint Resolution Process will be closed.

An appeal can only be submitted by the Complainant or Respondent in writing. Appeals submitted by third parties (e.g. friends, family, attorneys) will not be considered.

There are only three grounds on which an appeal can be filed – procedural irregularity, new information, or conflict of interest/bias. The appeal is not a new fact-finding process. Although a Complainant/Respondent may disagree with the finding or the sanction, that alone is not a basis for appeal. The written appeal must specifically state under which of the three grounds the appeal is being filed and how the requirements for that basis (noted below) are met Appeals that do not comply with these requirements, including failing to state proper grounds for appeal or being untimely, will not be considered, as determined by the AVP (or their designee) at their discretion. If an appeal will not be considered, and the five (5) business days to appeal have passed, the outcome is considered final, and the Complaint Resolution Process will be closed.

If the appeal is to be heard, the non-appealing Party will be given a copy of the relevant portions of the appeal and will have an opportunity to respond to the assertions made by the Appellant, in writing, within five (5) business days after receipt. The non-appealing Party may also request, in writing, access again to the Investigative Report, exhibits, and/or interview transcripts for purposes of responding to the appeal. Submissions after the five (5) business day period will not be considered, as determined by the AVP (or their designee).

The three grounds for appeal are:

  1. Procedural Error: The appellant alleges that (i) the procedural requirements of the Complaint Resolution Process were not followed and (ii) the deviation from the process had an adverse impact on the outcome of the Formal Complaint against the Appellant.
  2. New Information: The Appellant alleges that, subsequent to the issuing of the Investigative Report, new information about the alleged conduct has become available which could have changed the outcome of the Formal Complaint. The Appellant must: (i) present the new information; (ii) show why it was unavailable prior to completion of the Investigative Report; and (iii) show how the new information could have altered the outcome of the complaint. If new information is presented, the Appeal Panel has the option to ask the Investigator to reopen the Investigation regarding that information.
  3. Conflict of Interest/Bias: The Appellant alleges that the AVP, the Investigator, or the Decision-Maker(s) had a conflict of interest or bias for or against complainants or respondents generally or against the specific Parties to the Formal Complaint, that could have changed the outcome of the Formal Complaint. The Appellant must (i) specifically identify who is alleged to have the conflict of interest or bias; (ii) present specific information regarding the nature of the conflict of interest or bias for each individual identified; and (iii) show how the conflict of interest or bias could have changed the outcome of the Formal Complaint against the Appellant.

Appeals that are timely and state proper grounds for appeal, as determined by the AVP (or their designee), will be decided by an Appeals Panel of one to three employees (staff or faculty) or someone from outside the College, who have been trained regarding the process, the resolution of issues of discrimination, harassment and sexual violence and how to decide appeals. The Appeals Panel will include different individuals from those who served as the Decision-Maker(s). The Appeals Panel will be chosen at the sole discretion of the AVP (or their designee), who will communicate the name(s) to the Appellant and the non-appealing Party (as applicable). If either Party believes there is a possible conflict of interest with the Appeal Panel, they must communicate that to the AVP immediately, and no later than three (3) business days after notice of the name(s) of the Appeal Panel. The AVP then has the discretion to assign a different member to the Appeals Panel. Once the appeal has been submitted to the Appeals Panel for consideration, there will be no further opportunity to raise potential conflicts of interest.

In reviewing an appeal, the Appeals Panel will be given the Investigative Report and exhibits, and any interview transcripts or excerpts shared with the Decision-Maker(s), the written outcome, the appeal submission and any response, and the results of any additional investigation requested, as applicable. The Appeals Panel will make its finding based on its review of these documents. The AVP will consult with the Appeals Panel on questions about the Policy Against Discrimination, Harassment & Sexual Violence, the Complaint Resolution Process, and/or the Appeal process as they consider the appeal. The Appeals Panel may also submit questions to or request information from the Investigator or the Parties if needed to make their determination on the appeal.

The Appeals Panel has the option to Dismiss the appeal by finding that the requirements for the appeal grounds chosen have not been met. The Appeals Panel also has the option to Grant the appeal when it finds the requirements of the appeal grounds have been met.

If the Appeals Panel grants the appeal for a matter involving a student Respondent, the matter will be referred to the Office of Community Standards who will decide whether to uphold or modify the final outcome of the complaint based on the findings of the Appeals Panel, and in consultation with the original Decision-Maker(s), as appropriate. The AVP may consult with the Office of Community Standards and the original Decision-Maker(s) as necessary throughout the appeal process. The Office of Community Standards will then issue a Notice of Outcome of Appeal with the Appeals Panel’s finding and the decision on whether to uphold or modify the outcome. If the Appeals Panel dismisses the appeal for a student Appellant, the Office of Community Standards will issue a Notice of Outcome of Appeal with the Appeals Panel’s finding.

If the Appeals Panel grants the appeal for a matter involving an employee Respondent, the matter will be referred to the Chief Human Resources Officer (or their designee) and/or the Provost (or their designee) who will decide whether to uphold or modify the final outcome of the complaint based on the findings of the Appeals Panel, and in consultation with the Decision-Maker(s), as appropriate. If the Appeals Panel dismisses the appeal for an employee Appellant, the Chief Human Resources Officer and/or the Provost will issue a Notice of Outcome of Appeal with the Appeals Panel’s finding. The Parties will be notified in writing of the Notice of Outcome of Appeal. Certain employees (faculty and staff) may have additional appeal rights outside the Complaint Resolution Process.

Other Considerations

Parties should refer to the Complaint Resolution Process for information regarding the Amnesty/Help Seeking Policy, the College’s right to investigate and decide other conduct violations that may arise during the Process, how criminal conduct may factor into any process, whether there will be any family notification or communication about the Process, transcript notations and the maintenance of records at the conclusion of this Process. All of those sections are incorporated into this Process by reference.

Notes

  • 1 See 34 CFR Part 106.30 and 106.44.
  • 2 If the alleged conduct happened outside the United States but still falls under the Policy, the matter may still be adjudicated through the Formal Resolution Process , under the Complaint Resolution Process, as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee).
  • 3 If the alleged conduct happened outside a College program or activity, but still falls under the Policy, the matter may be adjudicated through the Formal Resolution Process, under the Complaint Resolution Process, as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee).
  • 4 Alleged conduct reported by a Complainant found not to be participating/attempting to participate, but that falls under the Policy, may still be adjudicated through the Formal Resolution Process, under the Complaint Resolution Process, as determined by the Associate Vice-President for Equity, Access and Equal Opportunity (or their designee).
  • 5 See the Complaint Resolution Process for more information about what constitutes “gathered information.”
  • 6 Under the Complaint Resolution Process, during the Investigative Report and Review stage, the parties were previously given the opportunity to request that something in the gathered information be included in the Final Investigative Report.
  • 7 Under the Complaint Resolution Process, during the Investigative Report and Review stage, the parties were previously given the opportunity to request that something in the gathered information be included in the Final Investigative Report.
  • 8 The Panel may also have reviewed information from the gathered material that was deemed relevant or any new information that was allowed by the Chair during the Pre-Hearing Conference.
  • 9 This type of questioning is sometimes referred to as cross-examination.