Sexual Harassment Prevention

Introduction

Excelsior University (the “University”) is committed to maintaining a workplace free from sexual harassment. Sexual and other prohibited harassment is a form of workplace discrimination that consists of unwelcome conduct, whether verbal, written, visual or physical, that demonstrates hostility, intimidation, ridicule or insult towards an individual on the basis of the individual’s race, color, creed, religion, sex, sexual orientation, gender identity, transgender status, national origin, ancestry, age, physical or mental disability (including pregnancy-related conditions), genetic information, predisposition or carrier status, marital or familial status, domestic violence victim status, military or veteran status, known relationship or association with any member of a protected class, or any other characteristic protected by applicable law.

While this policy is focused on sexual harassment and gender discrimination, the methods for reporting and investigating discrimination based on other protected identities are the same. All employees are required to work in a manner that prevents sexual harassment of any individual in the workplace (including supervisors, co-workers, consultants, vendors, volunteers, and other nonemployees

Definitions

What is “Sexual Harassment”?

Sexual harassment is a form of sex discrimination and is unlawful under federal, state, and (where applicable) local law. Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.

Sexual harassment includes unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex when:

Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the reporting individual is not the intended target of the sexual harassment.

Such conduct is made either explicitly or implicitly a term or condition of employment;

Such conduct has the purpose or effect of subjecting an individual to inferior terms, conditions or privileges of employment; or Submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment.

Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.

A sexually harassing hostile work environment includes, but is not limited to, words, signs, jokes, pranks, intimidation, or physical violence which are of a sexual nature, or which are directed at an individual because of the individual’s sex. Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance. Sexual harassment also occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions, or privileges of employment. This is also called “quid pro quo” harassment.

Any employee who feels harassed should report it so that any violation of this policy can be corrected promptly. Any harassing conduct, even a single incident, can be addressed under this policy.

Examples of sexual harassment:

The following describe some of the types of acts that may constitute unlawful sexual harassment and that are strictly prohibited (note however, that this is not meant to be an exhaustive list and that certain conduct may be processed under the University’s Sex and Gender-Based Misconduct Policy (Title IX):

Physical acts of a sexual nature, such as:

• Touching, pinching, patting, kissing, hugging, grabbing, brushing against another employee’s body, or poking another employee’s body.
• Non-consensual sexual intercourse, sexual battery or non-consensual sexual contact, molestation or attempts to commit these assaults.
• Unwanted sexual advances or propositions, such as: Requests for sexual favors accompanied by implied or overt threats concerning the target’s job performance evaluation, a promotion or other job benefits or detriments.
• Subtle or obvious pressure for unwelcome sexual activities.
• Sexually oriented gestures, noises, remarks or jokes, or comments about a person’s sexuality or sexual experience, which create a hostile work environment.
• Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should look or act.
• Sexual or discriminatory displays or publications anywhere in the workplace, such as: Displaying pictures, posters, calendars, graffiti, objects, promotional material, reading materials or other materials that are sexually demeaning or pornographic. This includes such sexual displays on workplace computers or cell phones and sharing such displays while in the workplace.
• Hostile actions taken against an individual because of that individual’s sex, sexual orientation, gender identity and the status of being transgender, such as: Interfering with, destroying, or damaging a person’s workstation, tools, or equipment, or otherwise interfering with the individual’s ability to perform the job.
• Sabotaging an individual’s work.
• Bullying, yelling, name-calling.
• Repeated requests for dates or romantic gestures, including gift-giving.

Who can be a target:
Sexual harassment can occur between any individuals, regardless of their sex or gender. This policy and the law protects employees, faculty, paid or unpaid interns, and nonemployees, including independent contractors, and those employed by companies contracting to provide services in the workplace. Harassers can be a superior, a subordinate, a coworker or anyone in the workplace including an independent contractor, contract worker, vendor, client, student, customer, or visitor.

Where can sexual harassment occur?
Conduct prohibited by this policy is unacceptable in the physical workplace and in any work-related setting outside the workplace, such as during business trips, business meetings and business-related social events. Similarly, conduct prohibited by this policy is unacceptable when it occurs when working remotely from home, on calls, texts, emails, and social media even if it occurs away from the workplace premises, on personal devices or during non-work hours.

Bystander Intervention
Any employee, supervisor or manager witnessing harassment as a bystander is required to report it. There are several methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help.

A bystander can interrupt the harassment by engaging with the individual(s) engaging in the harassment or the individual being harassed and distracting them from the harassing behavior.

A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;

A bystander can record or take notes on the harassment incident;

A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and

If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.

Though not exhaustive, and dependent on the circumstances, the guidelines above can serve as a brief guide of how to react when witnessing harassment in the workplace.

The behavior of individuals engaging in such conduct, or supervisors or managers who knowingly allow such behavior to continue, will not be tolerated.

All alleged violations of this policy that involve students will be processed pursuant to the University’s Sex and Gender Based Misconduct Policy (Title IX.) Certain allegations of sexual harassment involving employees and all allegations of sexual misconduct involving employees will generally be processed under the University’s Sex and Gender-Based Misconduct Policy (Title IX.)

The University will provide ongoing access to this policy for all employees. This policy must be provided to all employees in person or digitally through the HRIS onboarding system upon hiring and will be posted prominently in a conspicuous area. It will also be provided to all employees during annual training.

Policy

This policy applies to all employees, faculty, applicants for employment, interns (whether paid or unpaid), volunteers, contractors, subcontractors, vendors, consultants, and other persons conducting business or providing services to the University in the workplace pursuant to a contract, regardless of immigration status. In the remainder of this document, the term “employees” refers to this collective group. Harassment is prohibited in all aspects of the employment relationship including recruitment, hiring, placement, promotion, transfer, training, compensation, benefits, and activities.

Discrimination of any kind, including sexual harassment, violates our policies and is offensive and unlawful, and subjects the University to potential liability. As discussed below, individuals who engage in harassment in violation of this policy may also be subject to individual liability under applicable law. Employees of every level who engage in sexual harassment, including managers and supervisors who engage in sexual harassment or who allow such behavior to continue, will be disciplined for such misconduct.

Reason For Policy
This policy is one component of the University’s commitment to a discrimination free work environment (see cross reference to related policies below). Such discrimination, including harassment of any kind, is prohibited by law and by the University.

Procedures

Procedure for Reporting Sexual Harassment

Preventing sexual harassment is everyone’s responsibility. The University cannot prevent or remedy sexual harassment unless it knows about it. If any employee believes that the actions or words of a supervisor/manager, fellow employee, student, customer, vendor, or other individual in the workplace constitutes sexual harassment in violation of this policy, the employee is expected to promptly report that behavior to a supervisor, Human Resources, or other appropriate management.

Any individual who believes they have been the victim of or has witnessed any form of sexual harassment, or otherwise is aware of a suspected violation of this policy, shall promptly report such conduct to one or all of the following:

• A supervisor
• Vice President of Human Resources
• Title IX Coordinator
• Deputy Title IX Coordinator
• General Counsel

Reports of sexual harassment may be made verbally or in writing using the Sexual Harassment Complaint Reporting Form. Employees may also file a complaint through the University’s concern site (EthicsPoint) at http://www.excelsior.ethicspoint.com or discuss it with their department management if preferred. All supervisors and managers are required to report all formal and informal complaints immediately to the Vice President of Human Resources, Title IX Coordinator, Deputy Title IX Coordinator, or General Counsel even when the complaining employee asks to keep the complaint confidential or indicates that they do not wish to file a formal complaint.

If an individual reports a suspected violation of this policy and the person to whom the report is made does not respond in a manner the individual deems satisfactory or consistent with this policy, the reporting individual is required to report the situation to the Vice President of Human Resources, Title IX Coordinator, Deputy Title IX Coordinator, or General Counsel or another member of management, other than the alleged wrongdoer and the individual to whom the report was previously made.

Supervisory Responsibilities
All supervisors and managers shall act promptly and appropriately to prevent (1) sexual harassment in the workplace, and (2) retaliation against those who complain of sexual harassment, or those who participate honestly and in good faith in either an investigation of a complaint or in opposition to illegal sexual harassment in the workplace. In addition to being subject to discipline if they engaged in sexually harassing or retaliatory conduct themselves, supervisors and managers will be subject to discipline for failing to report suspected violations of this policy or otherwise knowingly allowing such violations to continue.

Investigation of Policy Violations
All reports or information about sexual harassment will be investigated, whether that information was reported in verbal or written form. Investigations will be conducted promptly and confidential to the extent possible. The reporting party and accused individual will be given notice, in a timely fashion, of the outcome of the investigation of any formal or informal report. An investigation of any complaint, information or knowledge of suspected sexual harassment will be prompt and thorough, commenced immediately and completed as soon as possible. All persons involved, including complainants, witnesses and alleged harassers will be accorded due process, as outlined below, to protect their rights to a fair and impartial investigation. Any employee may be required to cooperate as needed in an investigation of suspected sexual harassment. The University will not tolerate retaliation against employees who file complaints in good faith, support another’s complaint or participate in an investigation regarding a violation of this policy. While the investigative process will vary depending on the particulars of each individual situation, the following general steps and guidelines will be applied:

Investigations will be prompt, thorough and completed as soon as possible and will generally include: an immediate review of the allegations and, where appropriate, interim actions; obtaining, reviewing and preserving relevant documentation; interviewing all parties involved, including relevant witnesses; and documenting the investigation and its resolution and preserving such. Once a determination regarding the reported behavior is made, it will be communicated to the individual(s) who reported the conduct and the individual(s) who were subjected to the conduct (if different), though all details of the action(s) taken may not be disclosed. If it is determined that a violation of the policy has occurred, the University will take effective remedial action commensurate with the circumstances. Appropriate action will also be taken to deter future harassment and prevent any acts of retaliation.

Remedial Measures
Any employee, regardless of position or title, determined to have subjected an individual to harassment or retaliation in violation of this policy, will be subject to counseling and/or discipline, up to and including termination of employment. If the University concludes that a non-employee has subjected an individual to conduct in violation of this policy, prompt and effective action will be taken to stop the behavior and deter any future prohibited conduct. The availability of this reporting procedure does not preclude individuals who believe they are being subjected to harassing conduct or other conduct that violates this policy from promptly advising the offender that their behavior is unwelcomed and requesting that it be discontinued.

Any employee who engages in conduct prohibited by this policy, including any supervisor or member of management who knew about such conduct but took no action to report or stop it, may be subject to disciplinary action, up to and including termination of employment.

Liability
Any employee who engages in conduct prohibited by this policy, including any manager or supervisor who knew about such but took no action to stop it, may be held personally liable. The University does not consider conduct in violation of this policy to be within the course and scope of employment or the direct consequence of the discharge of one’s duties. Accordingly, to the extent permitted by law, the University reserves the right not to provide a defense or pay damages assessed against employees for conduct in violation of this policy.

Legal Protections and External Remedies
Sexual harassment is not only prohibited by the University; it is also prohibited by state, federal, and, where applicable, local law. Aside from the internal process described herein, individuals may also choose to pursue legal remedies with the following governmental entities at any time.

The New York State Human Rights Law (HRL), codified as N.Y. Executive Law, art. 15, § 290 et seq., applies to all employers in New York State and protects employees and other covered individuals, regardless of immigration status. A complaint alleging a violation of the HRL may be filed either with the Division of Human Rights (DHR), subject to a one-year statute of limitations (three years in cases of sexual harassment), or in New York State Supreme Court, subject to a three-year statute of limitations. The DHR will investigate the complaint to determine whether there is probable cause to believe that harassment has occurred. . . Probable cause cases receive a public hearing before an administrative law judge. If sexual or other prohibited harassment is found at the hearing, DHR has the power to award relief., which may include requiring your employer to take action to stop the harassment, and redress the damage caused by paying monetary damages, attorney’s fees, and civil fines. DHR’s main office contact information is: NYS Division of Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York 10458, (718) 741-8400 www.dhr.ny.gov. The DHR can be contacted at (888) 392-3644. More information about filing a complaint is available at dhr.ny.gov/complaint. The website provides a complaint form and contact information for DHR’s regional offices across New York State. The State's confidential hotline for complaints of workplace sexual harassment can also be made directly to 1-800-HARASS-3.

The United States Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws, including Title VII of the 1964 federal Civil Rights Act (codified as 42 U.S.C. § 2000e et seq.). An employee must file a charge with the EEOC within 300 days from the conduct giving rise to the complaint. The EEOC also investigates complaints but does not hold hearings or award relief. The EEOC may take other action including pursuing cases in federal court on behalf of complaining parties or issuing a Right to Sue Letter that allows an individual to pursue their claims in federal court. Federal courts may award remedies if discrimination is found to have occurred. The EEOC can be contacted at 1-800-669-4000 (1-800-669-6820 (TTY)), via email at info@eeoc.gov, or by visiting their website at www.eeoc.gov. If an individual filed an administrative complaint with DHR, DHR will file the complaint with the EEOC to preserve the right to proceed in federal court. Many localities enforce laws protecting individuals from harassment and discrimination. An individual should contact the county, city, or town in which they live to find out if such a law exists.

Anti-Retaliation Policy
The University will not take any action in retaliation against an employee who, in good faith, reports sexual harassment or participates in an investigation of such a report.

Retaliation is a serious violation of the University policy and the law and must be reported immediately. Any persons found to have retaliated against an employee because such employee (1) reports harassment in good faith and with a genuine belief that they have been subjected to sexual harassment, (2) participated honestly and in good faith in any investigation into a sexual harassment report, and/or (3) in good faith opposed acts of sexual harassment in the workplace, will be subject to discipline, up to and including termination of employment.

Examples of retaliation may include, but are not limited to:

• Demotion, termination, denying accommodations, reduced hours, or the assignment of less desirable shifts;
• Publicly releasing personnel files;
• Undermining an individual’s immigration status; or
• Reducing work responsibilities or passing over for a promotion.

Individuals who knowingly bring false charges of discrimination, including harassment, against another employee or other individual shall be subject to disciplinary action.

Conclusion
Excelsior University has developed this policy and procedure to ensure that all its employees work in an environment free from sexual harassment of any kind. Any questions regarding this policy and procedure should be brought to the attention of the University Vice President of Human Resources.