FIU Nondiscrimination Policy

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FIU-105 Non-Discrimination Policy and Discrimination Complaint Procedure

  1. POLICY STATEMENT

Florida International University (FIU or the University) affirms its commitment to ensure that each member of the University community shall be permitted to work or study in an environment free from any form of illegal discrimination based on race, color, religion, age, disability, sex (including sexual misconduct), sexual orientation, gender identity or expression, national origin, marital status, veteran status, and/or any other legally protected status (collectively referred to as Protected Status1). The University recognizes its obligation to work towards a community in which diversity is valued and opportunity is equalized.

The University recognizes that discrimination and/or harassment based on a Protected Status undermines the integrity of the academic and work environment. All members of the University community should be able to work and/or learn in an atmosphere free from discrimination and/or harassment; and the University is committed to addressing conduct that violates these standards. The University encourages all community members to take reasonable and prudent actions to prevent or stop Prohibited Conduct. Taking action may include direct intervention when safe to do so, enlisting the assistance of friends, contacting law enforcement, or seeking assistance from a person in authority. Community members who chose to exercise this responsibility will be supported by the University and protected from Retaliation. It is the particular responsibility of those members of the University community who hold positions of authority over others to avoid actions that are, or can be considered, a violation of this Regulation or as unprofessional.

This Regulation prohibits all forms of Discrimination and Harassment based on Protected Status. It expressly, therefore, prohibits Sexual Violence and Sexual Exploitation, which by definition involves conduct of a sexual nature and is prohibited form of Sexual or Gender-Based Harassment. This Regulation further prohibits Dating Violence, Domestic Violence and/or Stalking, which does not need to be based on an individual’s Protected Status to be prohibited under this Regulation. Finally, this Regulation prohibits Complicity for knowingly assisting in an act that violates this Regulation and Retaliation against an individual because of his or her good-faith participation in the reporting, investigation, or adjudication of violations of this Regulation. University students and employees who violate this Regulation may face discipline up to and including expulsion or termination.

To foster a climate that encourages prevention and reporting of Discrimination, Harassment, and related misconduct, the University will actively promote prevention efforts, educate the community, respond to all reports promptly, provide Interim Protective Measures to address safety and emotional well- being, and act in a manner that recognizes the inherent dignity of the individuals involved.

The University is committed to the principles of free inquiry and expression. Vigorous discussion and debate are fundamental to this commitment, and this Regulation is not intended to restrict teaching methods or freedom of expression, nor will it be permitted to do so. Offensiveness of conduct, standing alone, is not sufficient for the conduct to constitute prohibited Harassment. The conduct must be sufficiently severe to interfere with an individual’s ability to participate in employment or educational program and activities from both a subjective and objective perspective. Prohibited Conduct under this Regulation is not a proper exercise of academic freedom and may not be legally protected expression. On the contrary, Prohibited Conduct compromises the University’s integrity as well as its tradition of intellectual freedom.

 SCOPE AND APPLICABILITY

This Regulation applies to the conduct of University students and employees, including faculty and staff. The non-discrimination provisions also apply to contractors and other third parties under circumstances within the University’s control. The Regulation provides for the prompt and equitable resolution of reports of Discrimination, Harassment, and related misconduct.

This Regulation applies to all Prohibited Conduct that occurs on campus. It also applies to Prohibited Conduct that occurs off campus, including online or electronic conduct, if: the conduct occurred in the context of an employment or education program or activity of the University, had continuing adverse effects on campus, or had continuing adverse effects in an off-campus employment or education program or activity. Examples of covered off-campus conduct include athletic competitions, University-sponsored study abroad, research, or internship programs. In determining whether the University has jurisdiction over off campus conduct that is not part of an educational program or activity of the University, the Title IX Coordinator/Director of the Equal Opportunity Programs/Diversity Office will consider the seriousness of the alleged conduct, the risk of harm involved, whether both parties are members of the campus community, and/or whether the off campus conduct is part of a series of actions that occurred both on and off campus.

Regardless of where the conduct occurred and with whom, the University will offer resources and assistance to community members who are subject to Prohibited Conduct. The University will also assist the Reporting Party in identifying and contacting external law enforcement agencies and community resources, as desired.

DEFINITIONS

  1. Reporting Party is defined as any individual who may have been the subject of any Prohibited Conduct by an individual or organization covered under the Regulation regardless of whether the Reporting Party makes a report or seeks action under the Regulation.
  2. Responding Party is defined as any individual who has been accused of violating the Regulation.
  3. Protected Statuses is defined as certain characteristics possessed by an individual that have been afforded protection by law, such as age, color, creed, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status.
  4. Age is defined as the number of years from the date of a person’s birth. With respect to employment, individuals who are forty (40) years of age or older are protected from Discrimination and Harassment. There is no age threshold for students or other participants in educational programs or activities.
  5. Color is defined as an individual’s skin pigmentation, complexion, shade, or tone.
  6. Creed is defined as a well-formed and thought-out set of beliefs held by more than one individual, which may not necessarily involve belief in a supreme being. The University will accommodate an individual’s observances and practices required by their creed unless it is unable to reasonably accommodate an individual’s creed-required observance or practice without undue hardship.
  7. Disability is defined as any person who has a physical or mental impairment that substantially limits one or more major life activities; or has a record of such impairment; or is regarded as having such impairment. A qualified person with a disability must be able to perform the essential functions of the employment or the academic, athletic, or extra-curricular program, with or without reasonable accommodation.
  8. Gender is defined as an individual’s socially constructed status based on the behavioral, cultural, or psychological traits typically associated with societal attribution of masculinity and femininity, typically related to one’s assigned sex at birth.
  9. Gender Expression is defined as how someone expresses gender through appearance, behavior, or mannerisms. A person’s Gender Expression may or may not be the same as the Gender Identity or Gender.
  10. Gender Identity is defined as the Gender with which an individual identifies psychologically regardless of what Gender was assigned at birth.
  11. Genetic Information is defined as the information about (i) an individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual. Genetic Information includes, with respect to any individual, any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services by such individual or any family member of such individual.
  12. National Origin is defined as an individual’s actual or perceived country or ethnicity of origin.
  13. Race is defined as an individual’s actual or perceived racial or ethnic ancestry or physical characteristics associated with a person’s race, such as a person’s color, hair, facial features, height, and weight. N. Religion is defined as all aspects of religious observance and practice as well as belief. O. Sex is defined as an individual’s biological status of male or female, including pregnancy. Conduct of a sexual nature is by definition based on Sex as a Protected Status. P. Sexual Orientation is defined as the inclination or capacity to develop intimate emotional, spiritual, physical, and/or sexual relationships with people of the same Sex or Gender, a different Sex or Gender, or irrespective of Sex or Gender. Q. Veteran’s Status is defined as disabled veterans, special disabled veterans, Veterans of the Vietnam era, and other protected Veterans as defined by federal and state law. R. Prohibited Conduct is defined as misconduct based on any form of Discrimination and Harassment based on a Protected Status and Domestic Violence, Dating Violence, Stalking, Complicity, and Retaliation. S. Sexual or Gender-Based Harassment is defined as those incidents that are sufficiently pervasive, persistent, or severe that a reasonable person would be adversely affected to a degree that interferes with his/her ability to participate in or to realize the intended benefits of a University activity, employment, or Sexual or Gender-Based Harassment includes (1) unwelcome sexual advances, requests for sexual favors and other verbal, physical, or electronic conduct of a sexual nature that creates a hostile, intimidating, or abusive environment; (2) verbal, physical, or electronic conduct based on Sex, Gender, Sexual Orientation, or sex-stereotyping that creates a hostile, intimidating, or abusive environment, even if those acts do not involve conduct of a sexual nature; or (3) exhibiting what is perceived as a stereotypical characteristic for one’s Sex or for failing to conform to stereotypical notions of masculinity and femininity, regardless of the actual or perceived Sex, Gender, Sexual Orientation, Gender Identity, or Gender Expression of the individuals involved. T. Sexual Assault2 or Sexual Violence is defined as forms of Sexual or Gender-Based Harassment that involve having or attempting to have Sexual Contact with another individual without Consent. U. Sexual Exploitation is defined as a form of Sexual or Gender-Based Harassment that involves one or more of the following behaviors committed for any purpose, including sexual arousal or gratification, financial gain, and/or other personal benefit: 2 The following terms included in this definitional section also have corresponding Florida statutory definitions because the behavior may constitute a crime: sexual assault, sexual exploitation, dating violence, domestic violence, stalking, and aggravated stalking. Some Florida criminal statutes overlap with the definitions contained in the Regulation and some may provide greater protection. (1) taking sexual advantage of another person without Consent; (2) taking advantage of another’s sexuality; or (3) extending the bounds of consensual Sexual Contact without the knowledge of the other individual.

Examples of Sexual Exploitation include, but are not limited to: threatening to disclose an individual’s Sexual Orientation, Gender Identity, or Gender Expression; observing another individual’s nudity or Sexual Contact, or allowing another to observe the same, without the knowledge and Consent of all parties involved; non-consensual streaming of images, photography, video, or audio recording of Sexual Contact or nudity, or distribution of such without the knowledge and/or Consent of all parties involved; prostituting another individual;

knowingly exposing another individual to a sexually transmitted infection, without the individual’s knowledge and/or Consent; knowingly failing to use contraception without the other party’s knowledge and/or Consent; and inducing Incapacitation for the purpose of taking sexual advantage of another person.

  1. Sexual Contact is defined as the intentional touching or penetration of another person’s clothed or unclothed body, including but not limited to the mouth, neck, buttocks, anus, genitalia, or breast, by another with any part of the body or any object in a sexual manner. Sexual Contact also includes causing another person to touch their own or another’s body in the manner described above.
  2. Consent is defined as an affirmative act or statement by each person that is informed, freely given and mutually understood. It is the responsibility of each person involved in any sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Consent must be ongoing throughout a sexual activity and can be revoked at any time. Within each sexual encounter, there may be separate individual sexual acts involved, and consent to one act by itself does not constitute consent to another act. Lack of protest or resistance does not mean consent, nor does silence mean consent has been granted. The existence of a dating relationship between the persons involved, or the fact of past sexual relations, should never by itself be assumed to be an indicator of consent for any current or future sexual encounter. If Coercion or Force is used, there is no consent. If a person is mentally or physically incapacitated so that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes but is not limited to conditions due to age, alcohol or drug consumption. Someone under 16 years of age cannot consent to sexual activity regardless of the age of the other person. Someone who is at least 16 years of age but less than 18 years of age cannot consent to sexual activity if the other person is 24 years of age or older. Whether one has taken advantage of a position of influence over another may be a factor in determining consent.
  3. Coercion or Force is defined to include conduct, intimidation, and/or express or implied threats of physical, emotional, or financial harm that would reasonably place an individual in fear of immediate or future harm and that is employed to persuade or compel someone to engage in Sexual Contact.

Examples of Coercion or Force include causing the deliberate Incapacitation of another person; conditioning an academic benefit or employment advantage on submission to the Sexual contact; threatening to harm oneself if the other party does not engage in Sexual Contact; or threatening to disclose an individual’s Sexual Orientation, Gender Identity, Gender Expression, or other personal sensitive information if the other party does not engage in the Sexual Contact.

  1. Incapacitation is defined as a temporary or permanent state in which a person cannot make informed, rational judgments because the person lacks the physical or mental capacity to understand the nature or consequences of his or her words and/or conduct and/or the person is unable to physically or verbally communicate consent.
  2. Dating Violence is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Reporting Party. The existence of such a relationship shall be determined based on the Reporting Party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

For the purpose of this definition—(1) Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. (2) Dating violence does not include acts covered under the definition of domestic violence.

  1. Domestic violence is defined as (1) A felony or misdemeanor crime of violence committed—(1)By a current or former spouse or intimate partner of the Reporting Party; (2) By a person with whom the Reporting Party shares a child in common; (3) By a person who is cohabitating with, or has cohabitated with, the Reporting Party as a spouse or intimate partner; (4) By a person similarly situated to a spouse of the Reporting Party under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or (5) By any other person against an adult or youth Reporting Party who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
  2. Stalking is defined as (i) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to– (A) fear for the person’s safety or the safety of others; or (B) suffer substantial emotional distress. (ii) For the purposes of this definition–(A) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. (B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the Reporting Party.
  3. Complicity is defined as any act that knowingly aids, facilitates, promotes, and/or encourages the commission of Prohibited Conduct by another person.
  4. Retaliation is defined as acts or words taken against an individual because of the individual’s participation in a protected activity that would discourage a reasonable person from engaging in protected activity. Protected activity includes an individual’s good faith: (i) participation in the reporting, investigation, and/or resolution of an alleged violation of this Regulation; (ii) opposition to policies, practices, and/or actions that the individual reasonably believes are in violation of the Regulation; or (iii) requests for accommodations on the basis of religion or disability. Retaliation may include intimidation, threats, Coercion, physical harm, or adverse employment or educational actions. Retaliation may be found even when an underlying report made in good faith was not substantiated. Retaliation may be committed by the Responding Party, the Reporting Party, or any other individual or group of individuals.
  5. Title IX Coordinator is defined as the individual who oversees FIU’s response to reports and complaints that involve sexual violence, dating violence, domestic violence, and/or stalking, who monitors the outcomes, identifies and addresses any patterns, and assesses the effects on the campus climate so the University can address such issues that affect the wider school community.

EE.Interim Protective Measures is defined as those temporary actions taken by the University to ensure equal access to its education programs and activities and to foster a more stable and safe environment during the process of reporting, investigating, and/or disciplining, if appropriate, a violation of this Regulation.

FF.Responsible Employee is defined as any employee who has the authority to take action to redress sexual violence, domestic violence, dating violence and/or stalking; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or who has been designated as Campus Security Authority.

  1. Campus Security Authorities is defined as those University employees who have a duty of reporting incidents of behavior that may constitute a Clery Crime to the Clery Coordinator (e.g., members of the University Police Department and those officials with significant responsibility for student and campus activities). An official with significant responsibility for student and campus activities is defined as any person who has the authority and the duty to take action or respond to particular issues on behalf of the institution.

Examples of Campus Security Authorities include: the Dean of Students, the Director of Campus Life, any Residential Life professionals (e.g., Resident Advisor), staff at the Office of Student Conduct and Conflict Resolution who oversee the student conduct process, the athletic coaches, a faculty advisor to a student organization.

  1. Clery Crimes are defined as: (i) Primary crimes include (A) Criminal homicide (i.e., murder, non-negligent manslaughter, negligent manslaughter) (B) Sex offenses (i.e., rape, fondling, incest, statutory rape) (C) Robbery (D) Aggravated assault (E) Burglary (F) Motor vehicle theft, and (G) Arson
  2.  (ii) Arrests and referrals for disciplinary actions, including (A) arrests for liquor law violations, drug law violations, and illegal weapons possession. (B) Persons not included (ii)(A) above but were referred for campus disciplinary action for liquor law violations, drug law violations, and illegal weapons possession. (iii) Hate crimes including (1) Larceny-theft (2) Simple assault (3) Intimidation, and (4) Destruction/damage/vandalism of property.

To constitute a hate crime, it must appear that the Reporting Party was intentionally selected because of the perpetrator’s bias against the Reporting Party. Bias includes the Reporting Party’s actual or perceived Race, Religion, Gender, Gender Identity, Sexual Orientation, Ethnicity, National Origin, and Disability, and (iv) Dating violence, domestic violence, and stalking

  1. Response Team is defined as a group of designated individuals who respond to a report of sexual misconduct, dating violence, domestic violence, and/or stalking.
  2. Minor is defined as a person who is under the age of 18 years old.
  3. Preponderance of the Evidence is defined as when the information that is presented supports a finding that it is more likely than not that a violation occurred.

III. PROHIBITED CONDUCT

  1. Discrimination and Harassment Based on All Protected Statuses Prohibited

This Regulation prohibits all forms of Discrimination and Harassment based on an individual’s Protected Status, including, Age, Color, Creed, Disability, Gender, Gender Expression, Gender Identity, Genetic Information, National Origin, Race, Religion, Sex, Sexual Orientation, Veteran’s Status and/or any other legally protected status. In addition, this Regulation prohibits related misconduct, including Domestic Violence, Dating Violence, Stalking, Complicity, and/or Retaliation.

This Regulation prohibits Discrimination, meaning any unlawful distinction, preference, or detriment to an individual as compared to others that is based on an individual’s Protected Status and that is sufficiently serious to unreasonably interfere with or limit:

  • An employee’s or applicant for employment’s access to employment or conditions and benefits of employment (e.g., hiring, advancement, assignment); or
  • A student’s or admission applicant’s ability to participate in, access, or benefit from educational programs, services, or activities (e.g., admission, academic standing, grades, assignment, campus housing).

Discrimination includes failing to provide reasonable accommodations, consistent with state and federal law, to a qualified person with a disability. This Regulation prohibits Harassment, which is a type of Discrimination that occurs when verbal, physical, electronic, or other conduct based on an individual’s Protected Status interferes with that individual’s (a) educational environment (e.g., admission, academic standing, grades, assignment); (b) work environment (e.g., hiring, advancement, assignment); (c) participation in a University program or activity (e.g., campus housing); and/or (d) receipt of legitimately requested services (e.g., disability or religious accommodations), thereby creating hostile environment harassment or quid pro quo harassment, as defined below.

Hostile environment harassment: Unwelcome conduct based on Protected Status that is so severe, persistent, or pervasive that it alters the conditions of education, employment, or participation in a University program or activity, thereby creating an environment that a reasonable person in similar circumstances and with a similar identity would find hostile, intimidating, or abusive. An isolated incident, unless sufficiently severe, does not amount to hostile environment harassment.

Quid pro quo harassment: Unwelcome conduct based on Protected Status where submission to or rejection of such conduct is used, explicitly or implicitly, as the basis for decisions affecting an individual’s education, employment, or participation in a University program or activity.

Consistent with the definitions provided above, below are examples of conduct that constitutes Discrimination and Harassment:

 May be blatant and involve an overt action, threat, or reprisal; or may be subtle and indirect, with a coercive aspect that is unstated but implied.

 May or may not include intent to harm.

 May not always be directed at a specific target.

 May be committed by anyone, regardless of Protected Status, position, or authority. While there may be a power differential between the Reporting Party and the Responding Party (perhaps due to differences in age or educational, employment, or social status), Discrimination and Harassment can occur in any context.

 May be committed by a stranger, an acquaintance, or someone with whom the Reporting Party has a current or previous relationship, including a romantic or sexual relationship.

 May be committed by or against an individual or by or against an organization or group.

 May occur in the classroom, in the workplace, in residential settings, or in any other setting.

 May be a pattern of behavior or, if sufficiently severe, a one-time event.

 May be committed in the presence of others when the Reporting Party and Responding Party are alone, or through remote communications, including email, text messages, or social media.

 May take the form of threats, assault, property damage, economic abuse, and violence or threats of violence.

 May include harassing or retaliatory behavior directed to a sexual or romantic partner, family member, friend, or pet of the Reporting Party.

The University strongly discourages amorous or sexual relations between employees (i.e., faculty and staff) and students. Such relationships, even when consensual, may be exploitive, and imperil the integrity of the educational process or work environment. They may also lead to charges of Sexual Harassment. However, when an individual evaluates (including academic evaluations) or directly supervises another individual with whom he or she has an amorous or sexual relationship, a conflict is created and that is Prohibited Conduct. The University will take action to resolve any conflict of interest created by these relationships.

Whenever a conflict of interest situation arises or is reasonably foreseen, the employee in a position of authority must resolve any potential conflict of interest by taking necessary steps, including, but not limited to, removing himself or herself from evaluative or academic decisions concerning the other individual. If he or she is unable to resolve personally the conflict of interest, he or she is required to inform the immediate supervisor promptly and seek advice and counsel in dealing with the conflict. The employee, along with the supervisor, is responsible for taking steps to ensure unbiased supervision or evaluation of the employee or student. Failure to resolve potential or actual conflict of interest situations as described in this Regulation may result in disciplinary action in accordance with University policies.

This Regulation does not preclude a division, college, or department from having a stronger policy against amorous or sexual relationship between employees or between faculty and/or staff with students provided that the policy is approved following the procedure set forth in University Policy 150.205 Developing University-Wide Policies.

  1. SEXUAL ASSAULT, SEXUAL VIOLENCE, DOMESTIC VIOLENCE, DATING  VIOLENCE, AND STALKING ARE PROHIBITED FORMS OF DISCRIMINATION

Just as the University’s prohibition of discrimination based on Protected Status (including Sexual Assault as a form of Sexual Harassment) is grounded in federal law, so is its prohibition against Domestic Violence, Dating Violence, and Stalking. The University’s response to Sexual Assault, Sexual Violence, Domestic Violence, Dating Violence, and Stalking is governed by the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (the Clery Act) and Section 304 of the 2013 Amendments to the Violence Against Women Act. Such acts violate the essential dignity of our community member(s) and are contrary to our institutional values. The University is committed to taking all appropriate steps to eliminate Sexual Assault, Sexual Violence, Domestic Violence, Dating Violence and Stalking; prevent the recurrence of such acts; and address their effects, both for the Reporting Party and the broader community. The University recognizes that Sexual Assault, Sexual Violence, Domestic Violence, Dating Violence, and Stalking encompass a broad spectrum of conduct and will respond according to both the severity of the offense and the threat it poses to the campus community.

  1. REPORTING OPTIONS

The University is committed to providing reporting options through multiple contact points across campus that are broadly accessible to all University community members. Any individual can make a report under this Regulation to the individuals or to the individuals/departments listed below. The report may be made in person, by telephone, in writing, by e-mail, electronically, or anonymously. All reports will be shared with the Title IX Coordinator and University’s Response Team. If the report involves a Minor, the Florida Department of Children and Families will be contacted as required by Florida Statutes Sections 39.201 and 39.205 and the University Mandatory Reporting of Child Abuse, Abandonment, and Neglect policy (see http://policies.fiu.edu/files/785.pdf).

REPORTING OPTIONS

Below is a list of University employees to which someone could report.

Shirlyon McWhorter
Title IX Coordinator
Director, Equal Opportunity Programs and Diversity
PC215 Phone: (305) 348-2785
E-Mail: eopd@fiu.edu

Kristen Kawczynski
Deputy Title IX Coordinator
Director, Student Conduct and Conflict Resolution
GC311A Phone: (305) 348-3939
E-Mail: kristen.kawczynski@fiu.edu
Julie Berg
Deputy Title IX Coordinator
Senior Associate Athletic Director
USCBA 202A Phone: (305) 348-2352
E-Mail: julie.berg-Mc_Graw@fiu.edu
Larry Lunsford
Vice President of Student Affairs
GC219K Phone: (305) 348-2797
E-Mail: Larry.Lunsford@fiu.edu
Cathy Akens
Associate Vice President of Student Affairs
Dean of Students
GC219E Phone: (305) 348-6726
E-Mail: Catherine.Akens@fiu.edu
Karyn Boston
University Compliance Officer
Office of University Compliance and Integrity
PC429 Phone: (305) 348-2216
E-Mail: karyn.boston@fiu.edu

9-12-08.