Sexual Harassment and Sexual Assault

Approval Date: 2017-10-04

Effective Date: 2017-11-01

Review Date: 2021-10-04

Authority:
President, through the Sexual Harassment Advisor.

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Principle:

Memorial University of Newfoundland (The University) recognizes its ethical and legal responsibility to provide a work, learning and living environment that is free of all forms of Sexual Harassment, including Sexual Assault. Students, Faculty, and Staff at the University have the right to an environment that is free from sexual harassment and sexual assault.

Purpose:

To protect Members of the University community by outlining provisions which aim to:

  • prevent sexual harassment and sexual assault;
  • educate on sexual harassment and sexual assault;
  • address sexual harassment and sexual assault when it occurs;
  • Identify methods for the resolution of concerns and complaints; and
  • mitigate the effects of sexual harassment and sexual assault.

Scope:

All members of the University community.

Definitions:

Administrators - President, Vice-Presidents, Associate Vice-Presidents, Executive Directors, Directors, Deans or any other administrator not covered by a collective agreement or the University Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees.

Advisor - Sexual Harassment Advisor.

Bystander - Member of the University community who witnesses or is aware of an incident(s) of Sexual Harassment or Sexual Assault.

Complainant - A Member of the University community or Non-University Person who considers themselves to have been subjected to any/all forms of Sexual Harassment, and who has chosen to present with a Concern or Complaint against a Member of the University community in accordance with this Policy.

Complaint - Statement of allegation concerning any form of Sexual Harassment, by a Complainant seeking recourse pursuant to this Policy. 

Concern - A situation which is of concern to a Complainant regarding any form of Sexual Harassment.

Consent - An active, direct, voluntary, unimpaired, on-going and conscious choice and agreement, expressed by word or conduct, between and among persons to engage in sexual activity. A person can only consent for themselves. Consent cannot be given or received while under the influence of alcohol or drugs, while incapacitated, unconscious or otherwise incapable of consenting. Consent cannot be induced by abusing a position of power, trust or authority. (See Section 3.0 Power Differences). Consent can be withdrawn at any time. In addition, silence is not consent.

Day(s) - A day, other than a Saturday or Sunday, statutory holiday, or other day on which the University is not open for administrative business. A day is inclusive of the day referenced.

Formal Resolution - A process in which an external investigator conducts an investigation with the goal of achieving a finding of whether or not Sexual Harassment or Sexual Assault has occurred. It is a means of resolution designed to address Concerns and Complaints of Sexual Harassment and does not require consent of the parties.

Frivolous - Devoid of merit.

Informal Resolution - Processes that are considered with the Advisor with the goal of achieving a resolution of Concerns and Complaints of Sexual Harassment. Some informal resolution options requlre consent of the parties. Informal resolutions may not be appropriate in all circumstances.

Legal Authorities - The legal entities, external to the University community, who have the responsibility and jurisdiction to uphold and enforce the law including the Criminal Code. R.S.C., 1985. c. C-46as amended (The Criminal Code).

Mediation - A process, in which an external mediator facilitates a collaborative, controlled discussion between and with the agreement of a Complainant and Respondent in a setting that is deemed as safe as possible, with the goal of achieving an effective resolution. Mediation requires consent of both parties and may not be appropriate in all circumstances.

Members of the University Community - Any person who teaches, conducts research, studies or works at or under the auspices of the University and includes, without limitation, all employees, all students; and any other person(s) while they are acting on behalf of or at the request of the University. Students and employees include former students and employees while they were still members of the University if reported incidents of sexual harassment occurred within the time limits set out in this Policy.

Non-University Person - Includes but is not limited to volunteers, contractors, their employees and agents, vendors of goods and services and their employees and agents, and visitors to the University, who have an association with the University.

Power Differential - The real or perceived difference between or among Members of the University community in terms of authority, academic status, employment status, or citizenship status. Examples of power differentials may include but are not limited to: instructor or teaching assistant and student, supervisor and employee, graduate supervisor and graduate student.

President - Shall mean the President of Memorial University of Newfoundland or their delegate.

Respondent(s) - Member(s) of the University community or a Non-University person(s) whose reported conduct or comments are the subject of a Concern or Complaint.

Retaliation - Any threat of reprisal, attempt to intimidate or adverse behaviour or action, taken against a Member of the University community or Non-University person, in response to that initial person having:

  • invoked this Policy;
  • participated or cooperated in any process under this Policy; or
  • been associated with a Member of the University community or Non-University person who has invoked this Policy or participated in any of its processes.

Sexual Assault - Is a criminal offence under the Criminal Code R.S.C., 1985, c. C-46 of Canada. It is any type of unwanted sexual act characterized by the use of force, threat(s), or control of a person or carried out in circumstances where the person has not freely consented. {See definition of Consent.)

Sexual Harassment - Conduct or comments of a sexually-oriented or gender-oriented nature based on gender expression, gender identity, sex or sexual orientation directed at a person or group of persons by another person or persons, who knows or ought reasonably to know that such conduct or comments are unwelcome or unwanted. It includes Sexual Assault and assisting in Sexual Harassment.

Conduct or comments constitute sexual harassment when:

  • submission to such conduct or comments are made either explicitly or implicitly a term or condition of a person's employment, academic status, academic accreditation, or
  • submission to or rejection of such conduct or comments by a person is used as the basis for employment, or for academic performance, status or accreditation decisions affecting such person, or
  • such conduct or comments interferes with, or adversely affect, directly or indirectly, a person's work or academic environment or performance.

Examples of Sexual Harassment may include but are not limited to:                 

  • Visual displays of sexual images;
  • Unwelcome innuendos or taunting about a person's sex, sexual orientation, gender identity, gender expression (including pregnancy and breastfeeding);
  • Unwelcome remarks or demands for sexual favours;
  • Voyeurism;
  • Stalking.

Sexual Harassment may occur:

  • during a single incident, or a series of single incidents. Whether or not a single incident constitutes sexual harassment will depend on the nature and type of incident(s);
  • between persons regardless of sex, sexual orientatlon, gender identity and gender expression;
  • in the course of work, learning or living whether that occurred on-campus, off-campus or online;
  • during social interactions whether on-campus, off-campus or online;
  • through participation in University-related Activities, whether they occur on-campus, off­ campus or online.

Off-campus settings include, but are not limited to: field trips, athletic road trips, conferences or training events, and social functions whether or not they are University-related Activities.

Online settings include, but are not limited to, social media, email, websites and any other form of electronic communications.

Sexual Harassment is contrary to the Newfoundland and Labrador Human Rights Act, SNL 2010, CH-13.1, as amended (the "Human Rights Act") and may be contrary to the Criminal Code. The Human Rights Act, expressly prohibits discrimination on grounds including but not limited to sex, sexual orientation, gender identity and gender expression. Other statutes may apply depending upon the jurisdiction in which the incident(s) occurs.

The University - Memorial University of Newfoundland.

Unit - Academic or administrative units as defined in the University Calendar.

Unit Assessment - An independent third-party review of the work, study or research environment that seeks to gather information relating to issues of Sexual Harassment in the Unit and to identify causes and effects and to make recommendations with respect to the Unit.

University-related Activity - Any activity, event, program, organization or undertaking in which a Member of the University community participates which has a substantial connection to the University, or any activity, event, program, organization or undertaking involving Members of the University Community where the actions of those Members may reasonably reflect upon or affect the University or its Members.

Vexatious - To intentionally annoy, embarrass, harass or harm.

Policy:

1.0 Responsibilities and Duties
1.1 Sexual Harassment, including Sexual Assault, by any Member of the University Community or a Non­-University person is prohibited. The University takes steps to prevent where possible, or otherwise minimize, Sexual Harassment and to deal expeditiously with behaviour that violates this Policy.

1.2 Prevention of Sexual Harassment is a shared responsibility of all Members of the University Community.

1.3 All Members of the University Community shall:

a. know what constitutes Sexual Harassment and Sexual Assault;
b. model respectful behaviour and refuse to engage in or condone behavior contrary to this Policy;
c. encourage an environment which is free of Sexual Harassment and Sexual Assault;
d. participate in and facilitate participation in education and training about this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints;
e. familiarize themselves and comply with this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault concerns and complaints;
f. where and when appropriate, advise others of this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints;
g. consult with the Advisor to obtain advice and guidance regarding possible situations of Sexual Harassment and Sexual Assault and refer persons to the Advisor.

1.4 In addition, those Members of the University Community with academic or administrative authority bear the responsibility to maintain work and learning environments free from Sexual Harassment or Sexual Assault by initiating positive measures and taking prompt action should Sexual Harassment or Sexual Assault occur. This includes but is not limited to:

a. educating themselves and those in their unit with respect to Sexual Harassment and Sexual Assault;
b. seeking advice from the Advisor in order to facilitate addressing Concerns and Complaints of Sexual Harassment and Sexual Assault in a prompt, confidential and fair manner;
c. addressing incidents of possible Sexual Harassment and Sexual Assault that occur in the unit in a timely and confidential manner; 
d. upon request, participating in the resolution of Complaints; and
e. implementing any recommendations from an Informal or Formal Resolution Process, which may include disciplinary action.

1.5 The Advisor has the primary responsibililty for the implementation of the Sexual Harassment and Sexual Assault Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints and plays a key, University-wide role in preventing and dealing with Sexual Harassment. In addition, the Advisor is responsible for ensuring that the Sexual Harassment Office performs an educational role in the University community. The Advisor shall maintain impartiality in relation to the Policy and Procedures and be as accessible as possible to the University community. The Advisor reports directly to the President and works in collaboration with the Sexual Harassment Board.

1.6 The Sexual Harassment Board, in collaboration with the Advisor, oversees the implementation of and reviews the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints. The Board is representative of the identified University constituency groups as stated in the Terms of Reference for the Sexual Harassment Board.

2.0 Reporting of Sexual Harassment and Sexual Assault
2.1 Members of the University Community and Non-University Persons may bring forward Concerns or Complaints of Sexual Harassment, including Sexual Assault against a Member of the University Community or against a Non-University Person. Bystanders may bring forward Concerns or Complaints under this Policy.

2.2 This Policy and accompanying University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints do not restrict the right of persons to file a separate complaint with the Newfoundland and Labrador Human Rights Commission, invoke the Criminal Code of Canada or the appropriate collective agreements, or legal rights.

2.3 In cases of reported Sexual Assault, persons are encouraged to contact the appropriate Legal Authorities immediately. In addition, they should refer Concerns to the Advisor and consult the University-wide Sexual Assault Support and Response Guide. The Advisor shall provide information, support, advice and guidance. As Sexual Assault is a criminal offence, at the Complainant's request, the Advisor shall refer the allegation to appropriate Legal Authorities or to other community resources.

2.4 If the President has grounds to believe that the well-being, safety or security of Member(s) of the University community is at risk with regards to sexual harassment or sexual assault, the University shall initiate an external investigation and/or inform Legal Authorities. Such investigation or referrals may be made without a Complainant's consent. In these situations, confidentiality is protected to the extent possible and in accordance with Section 5.4.

2.5 Where there is a report that a minor has experienced Sexual Harassment or Sexual Assault, the University shall take appropriate steps.

2.6 Students are advised to report incidents of Sexual Harassment or Sexual Assault that occur during work terms, placements, internships, instructional field courses or practica outside the University. Students may avail of the support, advice and guidance of the Advisor to do so.

2.7 Non-University Persons who are Complainants may invoke this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints.

2.8 A Concern or Complaint of any form of Sexual Harassment against a Non-University Person should be reported to the Advisor. Where a Complaint has been made against a Non-University Person, the Advisor will determine, in consultation with the Complainant, the appropriate steps to be taken. The Advisor may also seek advice or guidance. Sexual Harassment by a Non-University Person may result in suspension of privileges, such as access to campus or other appropriate action.

2.9 Where circumstances warrant, the President or a Vice-President, on the advice of the Advisor, may authorize a Unit Assessment, as defined in this Policy.

3.0 Power Differences
3.1 Anyone in a relationship with a person where a Power Differential exists is advised that, if a Complaint of Sexual Harassment or Sexual Assault is subsequently filed, the Power Differential may be construed against the person in power.

3.2 When power differentials exist, those holding positions of authority must respect the power with which they are entrusted. Consent is a required element of such a relationship.

3.3 Pursuant to the Newfoundland and Labrador Human Rights Actsexual solicitation by a person in a position to confer, grant or deny a benefit or advancement to another person shall not engage in sexual solicitation or make a sexual advance to that person. A person who is in a position to confer or deny a benefit or advancement to another person shall not penalize, punish or threaten reprisal against that person for the rejection of a sexual solicitation or advance.

4.0 Conflict of Interest
4.1 Members of the University community are subject to and must comply with the University's Conflict of Interest policy and procedures. See the Conflict of Interest Situations section of the Conflict of Interest policy. Members should also refer to any conflict of Interest provisions and relevant clauses in the appropriate collective agreement, University Guide for Non-Bargaining, Management and Professional and Senior Administrative Management Employees or other applicable documents.

5.0 Confidentiality
5.1 All persons involved in any process related to this Policy are required to maintain confidentiality. Confidential matters are handled in accordance with the Access to Information and Protection of Privacy Act, 2015, cA-1.2 (the "Access to Information and Privacy Act''), other privacy legislation to which the University is subject, and University policies. Nothing in this section shall be construed so as to prevent a Complainant or Respondent from seeking advice and guidance.

5.2 Only persons with a bona fide need to know the details of a situation will have access to such information and access is limited to the scope of their responsibilities. Third parties attempting to gain or gaining access to personal information with respect to a Concern or Complaint, where such information is not needed to perform the scope of their responsibilities, does so in violation of this Policy and may be in violation of the Access to Information and Protection of Privacy Act.

5.3 A breach of confidentiality by persons involved in any process related to this Policy may be subject to discipline or other appropriate action.

5.4 In cases where the Respondent is an employee of the University, the Respondent and Complainant are entitled to have access to all relevant information created or gathered for a Sexual Harassment or Sexual Assault investigation. In addition, witnesses who participate in an investigation may request information that relates to their statements to the investigator.

5.5  Confidentiality may not apply to persons subject to extra-University judicial processes, or where disclosure is permitted or required by law, or where the well-being, safety and security of a person or persons is a concern. In such circumstances, information, as appropriate, would only be shared with those with a bona fide need to know.

6.0 Process
6.1 The processes as outlined in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints can be availed of by any Member of the University Community or Non­-University Person(s) who wish to report a Concern or Complaint and are explained to all persons prior to electing the process to follow. The person may choose to proceed through:

i. consultation with the Advisor,
ii. the Informal Resolution Process,
iii. mediation,
iv. the Formal Resolution Process,or
v. referring to the University-wide Sexual Assault Support and Response Guide.

6.2 If a Complainant wishes to file a Complaint, normally it would be filed within a year of the incident(s) or a year of when the Complainant reasonably became aware of the incident(s). Recognizing that time and reflection may be needed for a Complaint to decide whether to file a Complaint, the Advisor has the discretion to extend the time limit. Legal and civil proceedings may have a different prescribed time period. Events prior to the one-year period may be referenced by the Complainant if the incident(s) is relevant and part of a series of Incidents. However, the passage of time may affect the University's ability to address the matter.

6.3 A Complaint is considered withdrawn when:

i.  the Complainant withdraws the Complaint at any stage of the process, by informing the Advisor.
ii. the Complainant chooses not to participate in any of the processes outlined in 6.1.

7.0 Interim Measures
7.1 Where a Concern or Complaint of Sexual Harassment or Sexual Assault has been reported, the University will exercise care to protect and respect the rights of the Complainant and the Respondent. The University understands that Complainants may wish to control whether and how their experience will be dealt with. In certain circumstances, the President and the Advisor may take interim measures to protect the well-being, safety and security of the Complainant, Respondent, or both, or to protect other members of the University community while a situation is being resolved, investigated or decided. The Advisor may make recommendations to the President regarding any interim measures deemed appropriate in the circumstances.

7.2 Any decision and action by the President or the Advisor to take interim measures in response to a request from a Complainant or Respondent shall be without prejudice to the rights of the Complainant or the Respondent under these Procedures, and shall not in any way be deemed to be an indication of bias or evidence, on the part of the Advisor or President towards either the Complainant or Respondent.

7.3 Failure to comply with conditions of an interim measure may become part of any investigation.

7.4 The President, in consultation with the Advisor, may make changes to the interim measures, where necessary. If a change is made to interim measures, notice of the change shall be provided by the President or the Advisor in the same manner as the original notice of interim measures.

8.0 Accommodation
8.1 In certain circumstances the duty to accommodate for services, facilities and academic purposes may be required, under the provisions of the Newfoundland and Labrador Human Rights Act. In these circumstances, the Advisor will facilitate the process of accommodation, whlle maintaining confidentiality. See also the University's Workplace Accommodation policy and Accommodations for Students with Disabilities policy.

9.0 Support Services
9.1 The University makes support and services, including providing information, counselling, access or referrals to medical services, academic and other accommodations, available to Members of the University community who have experienced Sexual Harassment or Sexual Assault. Support services are also available to Members who are Respondents.

10.0 Records and Retention
10.1 All records are handled in accordance with the University's Information Management policy, the Privacy policy, the Access to Information and Protection of Privacy Act  and other applicable legislation.

10.2 The Advisor keeps a confidential record of consultations, any advice given and any outcome achieved. Any reports of a general nature generated by the Advisor will only include non-identifying information, for statistical purposes only.

10.3 Record retention is in accordance with the Procedure for Record-Keeping in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints

11.0  Appeals
Complainants and Respondents have the right to appeal or grieve decisions or discipline imposed, in accordance with the following:

11.1  In the case of students:

a. if the matter has been dealt with under this Policy, the appeal shall be directed to the Board of Regents by notice, in writing, delivered to the Secretary of the Board of Regents within fifteen (15) days of the President's notification of the action to be taken.
b. if the matter has been referred to the Student Conduct Coordinator by the Advisor under the Offences section of the Student Code of Conduct, appeals shall be dealt with in accordance with the Appeals section of the Student Code of Conduct.

11.2 In the case of non-bargaining unit staff members, appeals shall be filed in accordance with Level IV of the Complaint and Appeal Procedures as outlined in the Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees.

11.3 In the case of Members of the University who are members of bargaining units, the Respondent has the right to file a grievance regarding the discipline and the decision of the President under the terms of the applicable collective agreement where these apply. The Complainant may have the right to file a grievance regarding the President's finding as to whether Sexual Harassment has occurred or not under the terms of the applicable collective agreement.

11.4 In the case of Administrators who are not members of a bargaining unit, the appeal shall be directed to the Board of Regents by notice, in writing, delivered to the Secretary of the Board of Regents within fifteen (15) days of the President's notification of the action to be taken.

12.0 Frivolous or Vexatious Complaints
12.1 If a review or investigation determines that a complaint is Frivolous or Vexatious, disciplinary action may be taken against the Complainant.

12.2 Any imposed discipline related to Frivolous or Vexatious Complaints will be taken in accordance with the Procedure for Discipline in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints. 

13.0 Retaliation
13.1 No person shall retaliate against another for initiating a consultation, for bringing forward a concern or complaint of Sexual Harassment or Sexual Assault or for being involved in any process under this Policy, including as a witness. The University considers retaliation at any stage to be a serious offence. Where there is evidence of retaliation, the same route as for dealing with Concerns and Complaints of Sexual Harassment, including Sexual Assault will be followed.

13.2 A breach of confidentiality by any person with respect to a Concern or Complaint may also constitute retaliation.

13.3 Any imposed discipline related to retaliation will be taken in accordance with the Procedure forDiscipline in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints

Related Documents:

Sexual Harassment Office
Sexual Assault Support and Response Guide
Form #1 Sexual Harassment Complaint
Form #2 Request for an Informal Resolution
Form #3 Request for an Investigation
Form #4 Release of Information
Form #5 Acknowledgement of Notification of Advice to Members of Bargaining Units
Form #6 Request for Mediation
Form #7 Consent for a Support Person to Attend Consultation
Electronic Data Security policy
Appropriate Use of Computing Resources policy
Privacy policy
Respectful Workplace policy
Conflict of Interest policy
Protected Disclosure policy
Accommodations for Students with Disabilities policy
Workplace Accommodation policy
Student Code of Conduct 
Assessment and Care Protocol

Procedures:

For inquiries related to this policy:

Sexual Harassment Office, 709-864-2015.

Sponsor: General Counsel

Category: Human Rights

Previous Versions:

There is at least one previous version of this policy. Contact the Policy Office to view earlier version(s):


Approval Date:2010-12-09, Effective Date:2010-12-09


Contact

University Policies

230 Elizabeth Ave

St. John's, NL A1B 3X9 CANADA

Tel: (709) 864-2530

Fax: (709) 864-2552

becomestudent@mun.ca