B.1.b. Non-Discrimination Investigations & Resolutions Procedure
Except as otherwise specified herein, this Non-Discrimination Investigations & Resolutions Procedure (“Procedure”) applies to faculty, staff, students, and applicants (for employment at Middlebury or to Middlebury's programs; hereinafter referred to as "applicants") as well as to others who participate in Middlebury programs and activities, including the undergraduate college, the Language Schools, the School of the Environment, MiddCore, Bread Loaf School of English, Bread Loaf Writers’ Conference, Middlebury College Schools Abroad, and the Middlebury Institute of International Studies at Monterey (“the Middlebury Institute”). The policy also applies to volunteers, interns and persons providing services pursuant to a contract to the extent required by applicable local law.
See also Addendum applicable to California employees only, in this document below.
This Procedure is available online at go/antiharassment. Printed copies may be requested from the Civil Rights and Title IX Coordinator.
There are many resources available to individuals who are involved in some way with an incident of discrimination, retaliation, or harassment, including sexual harassment. Please see Appendix A for contact information.
Any individual has the right to pursue discrimination and harassment complaints, including sexual harassment and related retaliation utilizing local, state, or federal enforcement agencies, including local and state police agencies, as appropriate, regardless of whether they choose to file a complaint with Middlebury (see contact information available on the Civil Rights and Title IX website). The agencies listed on the Civil Rights and Title IX website can conduct impartial investigations, and facilitate conciliation, and, if an agency finds that there is probable cause or reasonable grounds to believe that unlawful harassment, discrimination, or retaliation has occurred, it may take the case to court.
a. Criminal Complaints
Any student or employee may pursue criminal charges with local, state, or federal law enforcement agencies. Middlebury will offer and, upon request, provide assistance to individuals covered under this procedure with notifying law enforcement agencies. These options are available regardless of whether an individual chooses to file a complaint with Middlebury. Individuals have the option to notify such agencies with or without assistance from Middlebury, and have the option not to personally notify such authorities.
b. Orders of Protection
Middlebury does not have the authority to issue Relief From Abuse Orders, Orders of Protection or Restraining Orders as these are granted by the court system. Individuals who have experienced Title IX Sexual Harassment may be eligible to pursue Orders of Protection, Restraining Orders and/or Relief from Abuse Orders from courts in the United States or courts outside of the United States as applicable. Middlebury will offer its support to individuals if they request Middlebury’s assistance with making contact with law enforcement authorities and other external resources to seek such orders. Middlebury will respect such orders to the extent applicable.
c. Assistance by Middlebury
Requests for assistance with contacting law enforcement authorities or obtaining an Order of Protection, a Relief from Abuse Order, a Restraining Order or other lawful order may be made in person, via email, phone or teleconference to the CRTIX Coordinator, an HRO, or Public Safety For additional information regarding making reports to the police and/or obtaining an Order of Protection, Restraining Order, or Relief from Abuse Order.
This Non-Discrimination Investigations & Resolutions Procedure is intended to address instances of prohibited discrimination, including sexual harassment and other harassment, as defined in Middlebury’s Non-Discrimination Policy that are not required by the Department of Education to be handled under Middlebury’s Title IX Investigation & Resolutions Procedure.
Middlebury may, in exceptional circumstances, vary from this Procedure. So long as such a variation is consistent with relevant law and allows for fundamental fairness in the processes followed, variations from this process under those circumstances will not invalidate an outcome.
Middlebury complies with all applicable provisions of state and federal law which prohibit discrimination in employment, or in admission or access to its educational or extracurricular programs, activities, or facilities. With respect to Middlebury programs operating in states other than Vermont (e.g., California, New Mexico, and Washington D.C.), discrimination shall be defined as stated in the Non-Discrimination Policy unless the local law applicable to the program at issue mandates a broader definition, in which case such law will apply.
Retaliation against an individual for raising an allegation of discrimination, for cooperating in an investigation of such a complaint, or for opposing discriminatory practices is prohibited under the Non-Discrimination Policy.
Certain Middlebury employees may maintain confidentiality, but most cannot. Although strict confidentiality may therefore not be guaranteed, in all cases Middlebury will handle information in a sensitive manner and will endeavor to protect the privacy of individuals and maintain confidentiality to the extent possible consistent with its obligations to respond to reports of discrimination, harassment and/or related retaliation.
This section is intended to inform students, faculty, and staff of the various reporting and confidential disclosure options available to them, so that they can make informed choices about where to go for help.
a. Confidential Resources
A confidential resource is an individual who is legally and ethically bound to keep confidential all information shared with them in the course of providing counsel and support, except under the circumstances noted below. Middlebury respects that the decision to come forward may be difficult and that individuals may wish to seek assistance from someone who can provide confidential information and support, and who can provide assurances that what is disclosed will not be acted on except in the circumstances outlined below. (For a list of confidential resources, see the Civil Rights and Title IX website).
In general, the law recognizes and protects the confidentiality of communications between a person seeking care and a medical or mental health professional, religious advisor or MiddSafe Advocate. The medical, mental health, religious professionals and MiddSafe advocates at Middlebury and their off-campus counterparts respect and protect confidential communications from students, faculty, and staff to the extent they are legally able to do so. These professionals may have to breach a confidence, however, when they perceive a serious risk of danger or threat to any person or property. In addition, medical and mental health professionals may be required by law to report certain crimes (e.g., any allegation of sexual and/or physical abuse of a person under 18). These exceptions to confidentiality are governed by the law of the state in which the confidential resource is located.
An individual who speaks to a confidential resource must understand that, if they want to maintain confidentiality, Middlebury will be unable to conduct an investigation into the particular incident or pursue disciplinary action against the individual who is alleged to have violated this policy.
b. Non-Confidential Resources
Non-confidential resources are all faculty or staff members, including ombudpersons and residential life staff who are not medical or counseling professionals, clergy, or MiddSafe Advocates, and are therefore not permitted to honor requests for confidentiality. Non-confidential faculty or staff who learn of an incident of discrimination, harassment or related retaliation involving a student are required to report that information to the HRO. (See Section B.1. for more information).
Faculty and staff who are “Campus Security Authorities” are required to report certain crimes to the Department of Public Safety for the purpose of compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.
Employees with supervisory responsibility are expected to report all incidents of harassment, discrimination and related retaliation involving employees to the HRO and/or to Human Resources.
General inquiries to Middlebury officials about policies or procedures, and conversations in which the alleged wrongdoer is not identified by name or by implication from the circumstances may remain private. Otherwise, individuals who want to maintain confidentiality should seek a confidential resource.
Middlebury is responsible for providing a safe and nondiscriminatory environment for students, faculty and staff. Outside of the Confidential Resources outlined above, Middlebury will take reasonable steps to avoid disclosure of the identity of a complainant. Depending on a number of factors including the specifics of a concern, the identity of a complainant may become readily apparent. Middlebury will only disclose information regarding a concern of discrimination on a need to know basis or as required to by law.
d. Other Disclosures Required by Law
Middlebury will not include the names of complainants or other identifying information in publicly available reports as required by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. In certain circumstances, Middlebury may need to report an incident to law enforcement authorities. Such circumstances include but are not limited to incidents that warrant the undertaking of safety and security measures for the protection of the individual and/or the campus community, instances involving abuse of minors, or situations in which there is clear and imminent danger and/or a weapon may be involved.
Middlebury encourages individuals to report incidents of discrimination, harassment and related retaliation so that they can obtain support and information and so that Middlebury can respond appropriately. Individuals are encouraged to report their concerns to the Civil Rights and Title IX Coordinator.
All members of Middlebury’s community are expected to promote an environment free from prohibited discrimination, harassment, including sexual harassment, and related retaliation.
Any faculty or staff member who learns of an incident of discrimination, harassment, or related retaliation involving a student must report this information to a Middlebury Human Relations Officer or the Civil Rights and Title IX Coordinator (see Appendix A for contact information), or the appropriate dean or program director in cases involving the Language Schools, Schools Abroad, Bread Loaf, the Middlebury Institute, MiddCore, School of the Environment, or other Middlebury program, as applicable, unless their status as a confidential resource precludes this disclosure. Confidential resources include the staff of the Center for Health and Wellness, the staff of the Chaplain’s Office, MiddSafe Advocates, or other medical, counseling, support or religious personnel and volunteers who are required by law to maintain confidentiality. Please see Section A.5. Confidentiality for more information.
Employees with supervisory responsibility must report incidents of discrimination, harassment, including sexual harassment, or retaliation, and, if directed by HR or another appropriate official, take appropriate remedial action should such matters come to their attention. Supervisors should report any complaints or suspected acts of harassment, discrimination, or retaliation (even if they do not involve direct reports) to a HRO, Human Resources, or the Civil Rights and Title IX Coordinator in accordance with Section 2, below. Depending upon the circumstances of a given situation, supervisors may be responsible for taking steps such as, by way of example but not limitation, addressing issues directly with staff, faculty, or students whom they supervise, facilitating informal resolution or mediation of issues, providing information on avenues to address questions of harassment, discrimination, and/or retaliation, or pursuing complaints under the complaint procedures described here.
Failure to report or address harassment, discrimination, or retaliation complaints or suspected acts of harassment, discrimination, or retaliation appropriately in accordance with this section may be considered a violation of Middlebury’s policy.
Any Middlebury student, faculty member, staff member or applicant (for employment or to any Middlebury program) who has reasonable cause to believe that discrimination or harassment, including sexual harassment, has occurred or is occurring, or who believes that a student, faculty member, staff member or applicant has been subjected to retaliation for having brought or supported a complaint of discrimination or harassment, is encouraged to bring that information to the immediate attention of the official who is designated to receive such reports in the Middlebury program at issue (reports or complaints can be made verbally or in writing). Reports may also be made to the Civil Rights and Title IX Coordinator or any HRO (student, faculty and staff matters), or to Human Resources (employees).
If the designated HRO is unavailable, or if the HRO has a conflict of interest, the report should be made to the designated alternate HRO for the program at issue. The alternate shall have the same authority as the designated HRO to oversee investigations and adjudicate harassment, discrimination, and retaliation complaints. The names and contact information for offices and/or individuals serving as Human Relations Officers and alternate Human Relations Officers in Middlebury’s various programs and locations are listed on the Civil Rights and Title IX website.
Middlebury encourages students, faculty, staff and applicants to report instances of unwelcome protected-characteristic-related conduct (including unwelcome conduct of a sexual nature) even if the conduct is not sufficiently severe such that it undermines and detracts from or interferes with an individual’s education, work performance, or access to Middlebury resources, or creates an intimidating, hostile, or offensive educational, work, or living environment. Middlebury encourages such reports, including through our online form, so that the behavior can be addressed before it creates a hostile environment for the affected individual. In such instances, the HRO and/or other Middlebury officials, to the extent appropriate, will address the conduct in a manner that is reasonably calculated to prevent its reoccurrence.
When the HRO receives actual notice – i.e., a written or oral complaint or report directed to the HRO – of conduct that may constitute prohibited discrimination or harassment (including sexual harassment) or related retaliation that may be investigated and adjudicated under this Procedure, Middlebury will initiate the following process, except as otherwise provided in subsection 5, below:
a. The HRO will promptly determine initially whether the report or complaint alleges conduct that is prohibited by the Non-Discrimination Policy and whether an investigation and adjudication should proceed under this Procedure.
b. If the HRO determines that the report or complaint does fall within the scope of the Non-Discrimination Policy and that an investigation and adjudication should proceed, a copy of the Non-Discrimination Policy and this Procedure will be provided to the complainant and the respondent and the parties will be notified that Middlebury is investigating the possibility that the respondent has violated the Non-Discrimination Policy using this Procedure (absent extenuating circumstances). The HRO will then, individually or in conjunction with other Middlebury offices or individuals (including, if warranted, independent investigators), promptly and equitably conduct or supervise an investigation that is appropriate under the circumstances. The investigation will be conducted in a prompt, thorough, fair, timely, equitable, and impartial manner.
The investigator is authorized to contact any and all individuals; Middlebury recognizes, however, that individuals who are bound by legal privileges may not be able to disclose privileged information, unless an exception applies. The investigator is authorized to access relevant records, except those legally protected as confidential or privileged, and may collect any additional evidence relevant to the complaint. The nature and scope of the investigation is within the sole discretion of the investigator and/or the HRO.
All witnesses identified in connection with an investigation under this Procedure are expected to cooperate fully in the investigation by providing complete, accurate, and truthful information. Middlebury policy prohibits intentionally making a false report or providing false or misleading information in any investigation under this Procedure. Complainants will not be deemed to have provided false or misleading information under this policy if their factual allegations are intended to be truthful and are made in good faith, regardless of whether the conduct complained of is ultimately found to constitute a policy violation.
Witnesses may be expected to sign statements or other documents memorializing the information provided in the course of the investigation and may be asked to keep the substance of the investigation interview confidential. Failure to cooperate fully with the investigator or other Middlebury official (including but not limited to providing false information, as described above) may subject the employee or student to the full range of disciplinary actions available to the supervising authority or responsible official in accordance with the program’s existing policies and/or contracts, as applicable, up to and including termination of employment or suspension or expulsion from Middlebury.
The parties may retain legal counsel at any time, although legal counsel is not permitted to participate in Middlebury’s investigation and adjudication process under this Procedure. Attorneys who wish to communicate about a case may contact Middlebury’s legal counsel directly.
In cases where the student is a respondent, if at any point prior to or during the investigation and adjudication process, the HRO becomes aware that other Middlebury policies may have been violated in relation to the matter under investigation, these alleged policy violations may, where appropriate, also be resolved through the investigation and adjudication process in this Procedure. The decision to investigate and adjudicate other alleged policy violations is within the sole discretion of the HRO. In all cases the parties will be notified if the HRO determines that additional alleged policy violations will be investigated and adjudicated in accordance with the procedures set forth herein.
c. The HROs, Civil Rights and Title IX Coordinator, Vice President for Academic Affairs/Dean of Faculty (“VPAA”), Human Resources Department, Vice President for Student Affairs and Dean of Students, Vice president for Academic Affairs and Dean of the Language Schools, Dean of International Programs, RDs, public safety staff, or other supervisory authority for the program at issue (or their designees) may also at any time take appropriate steps, including by way of example only, issuance of No Contact Orders, temporary changes in assignment of duties or housing, changes in class schedules or class requirements, or other accommodations, as appropriate, to protect complaining parties on an interim basis.
d. After the investigation is completed, the investigator shall issue a report to the adjudicating HRO, together with recommended findings, based on a preponderance of the evidence standard, i.e., whether it was more likely than not that the Non-Discrimination Policy (or other Middlebury policies, if applicable) was violated. The report may be issued orally or in writing depending on the nature and complexity of the information.
e. The adjudicating HRO is not bound by the investigator’s report. Rather, it is advisory to the HRO. The adjudicating HRO may accept or reject the investigator’s recommended finding in whole or in part, and may request additional relevant information before making a determination. The HRO should avoid duplicating the efforts of the investigator, as well as accepting the investigator’s recommended finding without careful review of all of the evidence.
f. Either party may choose to meet individually with the adjudicating HRO prior to the HRO’s determination. The HRO may also request an individual meeting with either party or any other person(s) as appropriate.
g. After review of the investigator’s report and recommended finding, the HRO shall issue a determination as to whether a violation of the Non-Discrimination Policy occurred. The HRO’s determination will be based on a preponderance of the evidence standard, and the HRO will reach a reasonable conclusion based on the evidence presented.
h. If the HRO finds that a staff or faculty member has engaged in conduct that violates the Non-Discrimination Policy the HRO will refer the matter to the appropriate supervisory authority (e.g., the Middlebury College VPAA or designee, Provost, the Middlebury Institute’s Chief Academic Officer or designee [“the Middlebury Institute’s CAO”], Vice President for Academic Affairs and Dean of the Language Schools, Dean of International Programs, in the case of a faculty member, as applicable to the program at issue, and/or the Middlebury College Human Resources Department, or the Middlebury Institute’s Human Resources Department, as applicable, in the case of a staff member) to take appropriate remedial measures. The supervisory authority may impose disciplinary action under existing policies and/or contracts, as applicable (e.g., verbal warnings, written warnings, written reprimands, or termination of employment), or other action as deemed appropriate under the circumstances.
i. If the HRO finds that a student has engaged in conduct that violates the Non-Discrimination Policy (or other Middlebury policies under investigation, if applicable), the HRO will refer the matter to the supervisory authority for the program in which the student is enrolled at the time of the misconduct and the supervisory authority for any other Middlebury program in which the student is or will be enrolled (e.g., the Vice President for Student Affairs and Dean of Students, Vice President for Academic Affairs and Dean of the Language Schools, Dean of International Programs, Dean of the Institute, Director of the Bread Loaf School of English, Director of the Bread Loaf Writer’s Conference, etc.), as applicable, for disciplinary action. Such disciplinary action could include warnings, written reprimands, probationary status, official college discipline, or suspension or expulsion from any or all Middlebury program(s) in which the student is or will be enrolled or participating, or other action as deemed appropriate under the circumstances (e.g. remedies applied to the respondent to address the needs of the complainant, including but not limited to room changes, class changes, building restrictions, extracurricular activity restrictions, modification of No Contact Orders to favor the complainant, and other actions to preserve the rights of the complainant to a discrimination-free environment). Additional non-disciplinary outcomes, such as extending and modifying mutual No Contact Orders, may also be imposed regardless of the finding.
If the conduct occurred during the course and scope of the student’s employment at Middlebury, the matter will be referred jointly to the Human Resources Department and the appropriate supervisory authority for the program(s) at issue, as applicable, for disciplinary action up to and including termination of employment and expulsion from Middlebury, or other action as deemed appropriate under the circumstances (see above).
j. To the extent permitted by law, the complainant and respondent will be afforded the same rights and opportunities throughout the investigation and adjudication process, including the opportunity to present witnesses and other evidence. However, the decision to interview particular witnesses or consider evidence offered by the parties is within the sole discretion of the HRO and/or investigator.
k. The complainant and respondent will ordinarily be notified of the HRO’s determination as to whether there was a policy violation. In sexual harassment cases involving student complainants, both parties will be notified of the HRO’s determination simultaneously in writing, to the extent permitted by law. However, information regarding discipline or sanctions will not be shared with any complainant under this policy except as permitted or required by law.
Middlebury works to resolve all complaints handled under this Procedure in a timely manner. The investigation will be documented, and the HRO will track the investigation for reasonable and timely progress. Both the complainant and respondent will be informed when the investigation is complete, a determination has been issued, and, where appropriate, a sanction has been imposed.
Middlebury will not wait for the conclusion of a criminal investigation or proceeding to begin its own investigation and resolve complaints under this policy. Middlebury will, however, comply with valid requests by law enforcement for cooperation in a criminal investigation. As such, Middlebury may need to delay temporarily an investigation under this policy while law enforcement is in the process of gathering evidence. Once law enforcement has completed gathering evidence, Middlebury will promptly resume and complete its investigation. Middlebury may also take interim measures to ensure the safety and well-being of the complainant and the school community while law enforcement is gathering evidence.
In cases where the respondent is a student, the complainant and respondent each has the right to appeal the outcome under the circumstances described below. The right of appeal is only available to a respondent or complainant who participated in the investigative process.
The purpose of an appeal is to review the adjudication process.
Appeals are accepted on the basis of one or more of the following:
- discovery of significant new factual material not available to the HRO that could have affected the original outcome; however, prior omission of factual information that the appealing party knew or reasonably should have known is not a ground for an appeal;
- procedural error where the error prevented fundamental fairness;
- The HRO, investigator(s), or another decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally, or the individual complainant or respondent, that affected the outcome of the matter.
An appeal must be made in writing to the appellate officer for the program in connection with which the finding of responsibility was made. Therefore, an appeal must be directed to the VPAA (complaints against undergraduate students and complaints against MiddCore students), the Provost (complaints against Language Schools, Schools Abroad, Bread Loaf School of English, Bread Loaf Writers' Conference, and School of the Environment students) or the Middlebury Institute’s CAO (complaints against Institute students), as applicable.
Appeals must be made within 5 days of receipt of notice of the HRO’s determination and must include the grounds for appeal and an outline of any supporting evidence.
The Middlebury official responsible for hearing the appeal (i.e., VPAA, Provost, or the Middlebury Institute’s CAO, as applicable) will invite an informational response to the appeal from the HRO and the other party (to the extent permitted by law), who may respond within 5 business days of the request. The Middlebury official may request assistance from the original investigator, or from a new investigator, or any other relevant individual, as necessary.
The Middlebury official may deny the appeal, or if one or more of the appeal grounds have been met, may:
- return the case to the original HRO for reconsideration; or
- appoint an alternate HRO to review the case, which will ordinarily occur when the original outcome was deemed to be affected by an official's bias.
It is the responsibility of the Middlebury official to determine which aspects of the case merit a new review, and to direct the HRO accordingly.
Absent extenuating circumstances, the Middlebury official will notify the complainant and respondent of the appeal decision simultaneously in writing within 15 days, to the extent permitted by law, and will notify the HRO in writing of instructions for any further action.
All decisions by the Middlebury official following a second review of the case are final.
At all stages of the investigation and determination processes, Middlebury officials, when appropriate, may make available to complainants informal resolution options for resolving complaints. In assessing whether alternative dispute resolution is appropriate, Middlebury officials may consider factors such as, for example, (1) the nature of the allegations, (2) the agreement of the complainant and the respondent, (3) other relevant factors such as any disability of the complainant or the respondent, or any history of misconduct or other policy violations by the respondent. A complainant will not be required to engage in alternative dispute resolution and may end the alternative dispute resolution process at any time. If the complainant ends the alternative resolution process or if the process is either not appropriate or is unsuccessful, Middlebury officials shall continue to respond to the allegations in accordance with this Procedure.
If at any point before or during the investigation, a student respondent chooses to accept responsibility under this policy, the HRO may issue a determination and refer the matter to the appropriate supervisory authority for the program at issue in accordance with Section B.2.i., above. The supervisory authority may issue a sanction and/or take other action that is reasonably calculated to address the harassment or discriminatory conduct and prevent its recurrence.
Students will be held accountable for the Scope of Oversight provision in section II.B.2.a.iii. of the Handbook.
Middlebury retains sole discretion to determine whether to initiate an investigation and adjudication under this Procedure regardless of the outcome of any disciplinary proceeding conducted by a non-Middlebury institution or program and/or the outcome of any law enforcement investigation or court proceeding.
In cases where a student is found responsible for a policy violation while participating in any Middlebury program, the finding of responsibility may also be referred to the appropriate authority overseeing any additional Middlebury program or other school or program in which the student is or will also be enrolled for other action as deemed appropriate (see also Section B.2.i., above). This may include but is not limited to: further investigation; additional adjudication under existing policies (using only information gathered in the first disciplinary process, or using subsequently gathered information, or both, as deemed appropriate by the overseeing authority); disciplinary action; or other remedies or processes deemed appropriate by the authority overseeing the additional Middlebury and/or other program or school in which the student is or will be enrolled.
Middlebury’s Emergency Removals Policy is found at section I.C.3 of the Handbook.
In any case in which a finding of harassment, discrimination, or retaliation has been issued, violation of a plan or directive to address the harassment, discrimination, or retaliation may be grounds for further discipline.
The Non-Discrimination Policy and this Procedure may be amended from time to time; the policies and procedures published on Middlebury’s Website should be consulted for any updates. Amended policies and procedures, as published through Middlebury’s Website, shall supersede wholly any prior versions. Reasonable accommodations will be provided for persons with disabilities who need assistance in reviewing the Non-Discrimination Policy and this Procedure and/or filing or pursuing a complaint under this Procedure, upon request.
A student may file a complaint of discrimination, harassment, including sexual harassment, or related retaliation relating to the conduct of the HRO, Civil Rights and Title IX Coordinator, or investigator appointed under this policy with Miguel Fernandez, Chief Diversity Officer (802.443.5792; email@example.com), or the appropriate supervisory authority for the Institute, as appropriate given the program at issue. Faculty and staff may file complaints relating to the conduct of the HRO, Civil Rights and Title IX Coordinator, or investigator appointed under this policy with Miguel Fernandez, Chief Diversity Officer (802.443.5792; firstname.lastname@example.org). These officials may appoint an individual to serve as a special alternate HRO, as appropriate.
The HRO may keep confidential records or reports developed under this Procedure and the actions taken in response to those reports, and use them for purposes such as to identify individuals or departments likely to benefit from training. Information about the HRO is available at several college offices: Human Relations Office, Civil Rights and Title IX Coordinator/Compliance Officer, Vice President for Student Affairs and Dean of Students, Student Life deans, Vice President for Academic Affairs and Dean of the Faculty, Public Safety, Human Resources, program directors, and the Middlebury Institute’s HROs.
California law has specific requirements for what must be set forth in a harassment/discrimination policy applicable to employees. In accordance with California’s Fair Employment and Housing Act Regulations (“FEHA”), and in addition to the policy provisions set forth above, this addendum applies to faculty, staff and other employees who are employed by the Middlebury Institute of International Studies at Monterey, Middlebury’s Language Schools at Mills College and any other Middlebury program that is located in California.
With respect to protections of individuals from unlawful harassment, the term “employee” shall include unpaid interns, volunteers, and persons providing services pursuant to a contract. With respect to protections of individuals from unlawful discrimination, the term “employee” shall include a person who serves in an unpaid internship or any other limited-duration program that provides work experience.
Discrimination is defined as conduct directed at an individual based on their perceived or actual race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (includes pregnancy, childbirth, breastfeeding, and related medical conditions), gender, gender identity, gender expression, age (over 40), sexual orientation, or military and veteran status of any person and/or any other status or characteristic as defined and to the extent protected by law.
Discrimination is established if a preponderance of the evidence demonstrates that an enumerated basis (see above definition) was a substantial motivating factor in the denial of an employment benefit to that individual by the employer or other covered entity, and the denial is not justified by a permissible defense. This standard applies only to claims of discrimination on a basis above (see also Government Code Section 12940, subdivision (a)), and to claims of retaliation under Government Code section 12940 subdivision (h). A substantial factor motivating the denial of the employment benefit is a factor that a reasonable person would consider to have contributed to the denial. It must be more than a remote or trivial factor. It does not have to be the only cause of denial.
Harassment is defined as verbal, written, visual, or physical conduct based on or motivated by an individual's actual or perceived race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (includes pregnancy, childbirth, breastfeeding, and related medical conditions), gender, gender identity, gender expression, age (over 40), sexual orientation, or military and veteran status of any person and/or any other status or characteristic as defined and to the extent protected by law in the location where a particular program is operating, that has the purpose or effect, from the point of view of a reasonable person, of objectively and substantially:
- undermining and detracting from or interfering with an individual's educational or work performance or access to Middlebury resources; or
- creating an intimidating, hostile, or offensive educational, work, or living environment.
Harassment may include but is not limited to:
- Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the above;
- Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated above;
- Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated above; or
- Sexual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.
(a) National origin includes, but is not limited to, the individual’s or ancestors’ actual or perceived:
(1) Physical, cultural, or linguistic characteristics associated with a national origin group;
(2) marriage to or association with persons of a national origin group;
(3) tribal affiliation;
(4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
(5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
(6) name that is associated with a national origin group.
(b) “National origin groups” include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.
(c) “Undocumented applicant or employee” means an applicant or employee who lacks legal authorization under federal law to be present and/or to work in the United States.
Retaliation against any individual because the individual has opposed discrimination or harassment on the basis of any protected category, has participated in the filing of a complaint, or has testified, assisted, or participated in any other manner in a proceeding in which discrimination, harassment, or retaliation has been alleged is prohibited.
Retaliation may include, but is not limited to:
(1) threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, applicant, or a family member (e.g., spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great-grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant; or
(2) taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.
Prohibited Conduct (Coworkers, Third Parties, Supervisors and Managers)
The law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes in contact from engaging in unlawful harassment, discrimination, or retaliation.
2. Complaint Process
Employees may complain orally or in writing. The complaint reporting process is described in more detail in Section B above. In addition to those procedures, the parties involved in a harassment, discrimination or related retaliation complaint will receive a designation of confidentiality, to the extent possible. Confidentiality will be kept by Middlebury to the extent possible, although Middlebury cannot promise absolute confidentiality.
When Middlebury receives allegations of misconduct under this policy, it will conduct a fair, timely, and thorough investigation and reach reasonable conclusions based on the evidence presented.
Supervisors must report any complaints of misconduct under this policy to a Human Relations Officer so that Middlebury can try to resolve the claim internally. (This provision does not preclude employees from filing complaints with external agencies. See the Civil Rights and Title IX website for more information.).
If at the end of the investigation misconduct under this policy is found, appropriate remedial measures shall be taken.
The investigation will be documented, and the Human Relations Officer will track the investigation for reasonable progress.
3. Dissemination of the Policy
This addendum, along with the full text of Middlebury’s Non-Discrimination Investigations & Resolutions Procedure, will be disseminated to all California employees via email with an acknowledgement return form.
The integrity and trust of the faculty-student relationship is central to Middlebury’s educational mission. Amorous relationships, defined as any dating, sexual, or other romantic relationship of any length between a faculty member and a student, even if they are not directly in any advisory or teaching role, involve a power differential, and therefore raise serious questions about unfair grading or other imbalanced evaluation practices, conflicts of interest, favoritism and bias. These concerns have an adverse impact on the educational environment of other students, as well as the student directly involved.
A seemingly consensual relationship between any employee with a student may meet the legal definition of sexual harassment, as lack of mutual consent may be inferred from the power differential between the employee – whether faculty or staff – and a student. Accordingly, amorous relationships between all Middlebury employees – faculty and staff – and all students enrolled in any Middlebury program are prohibited.
In exceptional cases falling outside of the anticipated scope of this policy, such as a relationship between an employee and a graduate student in an unrelated Middlebury program, exemptions to this policy may be granted by the Vice President for Academic Affairs/Dean of Faculty (“VPAA/DoF”), or their designee(s), for faculty members, and the Vice President of Human Resources (“VPHR”), or their designee(s), for staff members. Any employee, whether faculty or staff, who wishes to request such an exemption, shall submit a written statement to the VPAA/DoF or the VPHR, as applicable, explaining the reasons for the request. The VPAA/DoF or the VPHR will consult with the student and then respond in writing to the faculty or staff member with their decision and any conditions of approval that may apply, as applicable.
Questions about this policy shall be directed to the VPAA/DoF for faculty, or the VPHR for staff.
If Middlebury receives information that a faculty or staff member has violated this policy, the procedures laid out in the applicable misconduct policy shall be followed. If the employee is found to have violated this policy, the faculty or staff member will be subject to all appropriate discipline, including termination, consistent with the procedures of the applicable policy.
Middlebury is a community of learners and as such recognizes and affirms that free intellectual inquiry, debate, and constructive dialogue are vital to Middlebury’s academic mission and must be protected even when the views expressed are unpopular or controversial. Middlebury’s Non-Discrimination Policy and this Procedure are meant neither to proscribe nor to inhibit discussions, in or out of the classroom, of complex, controversial, or sensitive matters, including sex, sexual orientation, gender identity or expression, race, color, ethnicity, religion, marital status, place of birth, ancestry, national origin, age, or disability, when in the judgment of a reasonable person they arise appropriately and with respect for the dignity of others. Middlebury also recognizes that verbal conduct can be used specifically to intimidate or coerce and to inhibit genuine discourse, free inquiry, and learning. Such abuses are unacceptable. The "reasonable person standard" is to be used in judging whether harassment has occurred.
Human Relations Officer
The Human Relations Officer (“HRO”) is the administrator responsible for overseeing investigations and adjudicating complaints under this policy.
Civil Rights and Title IX Coordinator
The Civil Rights and Title IX Coordinator is the administrator responsible for receiving initial complaints and concerns about any form of discrimination and/or harassment, as well as coordinating training, outreach, etc.
A complainant is usually an individual who has alleged a violation(s) of Middlebury’s Non-Discrimination Policy that can be investigated and adjudicated under this Procedure. In some cases (such as, e.g., cases in which a person involved in an incident of an alleged policy violation does not wish to participate in the process but Middlebury decides that the alleged misconduct needs to be addressed), Middlebury may serve as the complainant or may pursue an investigation and adjudication under this Procedure without a designated complainant. In these cases, Middlebury may extend the full rights of the complainant as defined in this Procedure to affected parties as deemed appropriate by the HRO.
A respondent is an individual whose alleged conduct is being investigated to determine if it is in violation of the Non-Discrimination Policy or other Middlebury policies, if applicable. See also B.6.Scope of Oversight of this policy for more information.
Confidential resources include the staff of the Parton Center for Health and Wellness, the staff of the Chaplain’s office, Middlebury Safe and Confidential Advocates (“MiddSafe” ) or other medical, counseling, support or religious personnel and volunteers who are required by law to maintain confidentiality. For more information, see Section A.5. Confidentiality.
No Contact Order
When harassment or other forms of interpersonal misconduct have been alleged, or when otherwise deemed appropriate under the circumstances, the vice president for student affairs and dean of students, vice president for academic affairs and dean of language schools, dean of international programs, RDs, Civil Rights and Title IX Coordinator, HRO, Public Safety staff, or appropriate supervisory authority for the program at issue may issue No Contact Orders to the persons involved, whether or not disciplinary action is taken. A No Contact Order is used to restrict encounters between individuals. While a No Contact Order in and of itself does not constitute discipline and will not appear in an employee’s personnel file or on a student’s disciplinary record, refusal to adhere to the order after written or verbal notification of its terms is prohibited and may result in disciplinary action.
No Trespass Notice
A No Trespass Notice prohibits the presence of an individual on Middlebury property, or other properties on which Middlebury programs are occurring. No Trespass Notices are legally enforceable and may lead to the arrest of individuals in violation.
Unless otherwise noted, “days” indicates calendar days, regardless of whether the majority of Middlebury’s administrative offices are open. “Business days” indicates days on which the majority of Middlebury’s administrative offices are open, and generally connotes Mondays through Fridays.
Inquiries concerning the application of Title IX may be referred to Middlebury’s Civil Rights and Title IX Coordinator or to the United States Department of Education Office for Civil Rights. The full text of Middlebury’s Nondiscrimination Statement is available at https:www.middlebury.edu/pages/general/nondiscrimination. Printed copies may be obtained from the offices of the Vice President for Student Affairs, the Student Life deans, the Civil Rights and Title IX Coordinator, human relations officer(s) or the supervisory authority for the program at issue. Reasonable accommodations will be provided for persons with disabilities who need assistance in reviewing Middlebury’s Nondiscrimination Statement and its Non-Discrimination policies and procedures.
The Civil Rights and Title IX Coordinator is the administrator responsible for coordinating Middlebury’s efforts to comply with and carry out its responsibilities under Title IX. The Civil Rights and Title IX Coordinator’s responsibilities include overseeing the process for handling all Title IX complaints and identifying and addressing any patterns or systemic problems that arise during the review of such complaints.
Middlebury’s Human Relations Officers serve as the Civil Rights and Title IX Coordinator’s designees for the purposes of overseeing investigations and adjudicating sexual harassment and related retaliation complaints under this policy and sexual misconduct and related retaliation complaints under Middlebury’s Non-Discrimination Policy. Middlebury’s Alternate Human Relations Officers serve in a similar capacity as the Title IX Coordinator’s designee(s) when the Human Relations Officers are unavailable or have a conflict of interest.
Civil Rights & Title IX Coordinator
Butterfly Blaise Boire
Human Relations Officer
Thaddeus Watulak, J.D.