ACAB
SEXUAL HARASSMENT
Definitions
In the employment context, sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment under Massachusetts law when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's advancement (quid pro quo harassment);
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions;
Such conduct interferes with an individual's job duties; or
The conduct creates an intimidating, hostile or offensive work environment.
In the educational context, sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct (“quid pro quo harassment”);
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity (“hostile environment harassment”); or
“Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30)
The Ashburnham-Westminster Regional School District will promptly investigate all allegations of sexual harassment of which it has actual knowledge and which are alleged to occur in the school’s programs and activities, including locations, events, and/ or circumstances in which the school district exercises substantial control, in a way that is not deliberately indifferent.
The following additional definitions apply:
“Actual knowledge” means notice of sexual harassment or allegations of sexual harassment to any employee of the district, except that this standard is not met when the only official of the district with actual knowledge is the respondent (where the respondent is an employee). Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. Complaints will be addressed whenever the district has actual knowledge of the allegation.
“Administrative leave” means placing an employee on leave pursuant to state law. Nothing in the Title IX regulations precludes a recipient from placing a non-student employee respondent on administrative leave during the pendency of a grievance process, provided that Massachusetts laws are followed.
“Consent” means cooperation in act or attitude pursuant to an exercise of free will of a conscious person with informed knowledge of the nature of the act or actions. A current or previous relationship shall not be sufficient to constitute consent. Consent will not be found when submission to the act or actions is undertaken due the influence of fear, fraud, forcible compulsion, threats, and/ or the complainant possessed any legal incapacity to consent at the time of the act or actions. Consent is a defense to all types of sexual harassment.
“Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
“Deliberate indifference” means a response to sexual harassment that is clearly unreasonable in light of the known circumstances.
“Emergency removal” means the suspension or expulsion of a student on an emergency basis, consistent with state law. Nothing in the Title IX regulations precludes a district from removing a respondent from the district’s education program or activity on an emergency basis, provided that the district follows all procedures under Massachusetts law, undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.
“Formal complaint” means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment and requesting that the district investigate the allegation of sexual harassment.
“Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
“Supportive measures” means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The district must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures
Complaints and Reports of Sexual Harassment
Upon receiving actual notice of alleged sexual harassment without a formal complaint, staff members must notify the Title IX Coordinator. The Title IX Coordinator must then contact the complainant within two school days of receiving the complaint and do the following:
Discuss and offer supportive measures;
Consider the complainant’s wishes with respect to supportive measures;
Explain that supportive measures may be received with or without filing a formal complaint;
Determine whether the complainant wishes to file a formal complaint; and
Explain to the complainant the purpose of filing a formal complaint.
The Title IX Coordinator must document in writing the supportive measures offered/provided or why no supportive measures were offered/provided. Complainant and respondents must be offered supportive measures even if they do not file a formal complaint.
If the complainant declines to file a formal complaint, the Title IX Coordinator must consider whether to sign a formal complaint and start an investigation despite the complainant’s preferences. This decision may be appropriate when safety or similar concerns lead the district to conclude that a non-deliberately indifferent response to actual knowledge of Title IX sexual harassment could reasonably require the school district to investigate and potentially sanction a respondent. A Title IX Coordinator’s decision to override the complainant’s decision not to file a formal complaint must be documented in writing along with an explanation of why this decision was necessary in order to avoid deliberate indifference.
Formal complaints may also be filed directly with the Title IX Coordinator by a complainant in person, by mail, by email, or by telephone at any time, including during non-business hours.
The contact information for the Title IX Coordinator is:
Jeffrey Lizotte, Principal Stacey Christiano, Director of Human Resources
Oakmont Regional High School District Central Office
9 Oakmont Drive 11 Oakmont Drive
Ashburnham, MA 01430 Ashburnham, MA 01430
978-827-5907 978-827-5969
duminski@awrsd.org schristiano@awrsd.org
The complaint may be written by the complainant, or it will be reduced to writing by either the school employee who receives the complaint, the building Principal, or the Title IX Coordinator. Whether the complaint is reduced to writing by a student, parent, or staff member, the written complaint should include the name of the complainant, the name of the alleged victim (if different), the name of the respondent, the location of the school/department where the alleged discriminatory action occurred, the basis for the complaint, witnesses (if any), and the corrective action the complainant is seeking. This information will be made on or transferred to a discrimination/ harassment complaint form maintained by the District.
There is no time limit or statute of limitation on timing to file a formal complaint. However, at the time of filing a formal complaint, an alleged victim must be participating or attempting to participate in a program or activity of the District. Additionally, the District has discretion to dismiss a formal complaint where the passage of time would result in the district’s inability to gather evidence sufficient to reach a determination regarding responsibility, or when the district loses responsibility for the respondent (e.g., the respondent no longer attends or is employed by the District).
If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy even if proved, did not occur in the school district’s education program or activity, or did not occur against a person in the United States, then the school district must dismiss the formal complaint under these procedures, but could investigate it under other policies and procedures. The District must send written notice of any dismissal.
Investigations to allegations of sexual harassment will be prompt and the formal process will be completed within a sixty day timeframe where feasible. There may be a temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
Written Notice
Before any investigation can begin, the district must send written notice to both parties including sufficient details. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known. The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence. The written notice must inform the parties that the District’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
If additional allegations are added during the course of the investigation, additional written notice must be provided.
Informal Resolution
Where appropriate, after notice has been issued, the Title IX Coordinator should also consider offering the parties an option for informal resolution (e.g., mediation). Informal resolution may only be offered after a formal complaint is filed, and the parties must give written consent to engage in this process. Informal resolution may not be used if the allegation is against an employee respondent. Facilitators of informal resolution will be designated by the Title IX Coordinator and must not be biased against any of the parties.
Informal resolution is entirely voluntary. Complainants may elect to pursue formal procedures at any step in the process of making their complaint, even if informal resolution has already begun. Similarly, respondents may elect to follow formal procedures and decline informal resolution.
If the complainant and the respondent feel that their grievances have been sufficiently addressed via informal resolution, then no further action needs to be taken. This voluntary conversation must occur within five (5) school days after receiving the complaint of discrimination or harassment, unless both parties agree otherwise. The results of an informal resolution shall be maintained by the facilitator, in writing.
If the complainant is not satisfied with the resolution from the informal process, or if he/she does not choose informal resolution, then he/she can begin the formal complaint procedure described below.
Investigation
If informal resolution is not offered to or accepted by the parties, the Title IX Coordinator will designate an investigator and a decision maker, who may not be the same person. The Title IX Coordinator is free to cast himself/ herself in either role, where appropriate.
The investigator must not be biased against any of the parties at the outset of the investigation. The investigator will be responsible for interviewing parties and witnesses, finding facts, and making determinations related to credibility, all of which will go into a written report. The investigator must avoid all questions that are protected by legal privilege, unless the privilege has been waived, and should avoid asking about the complainant’s sexual history unless it is directly relevant to prove consent to the conduct at issue or to prove that the conduct was committed by someone other than the respondent.
Prior to completion of the investigative report, the school district will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.
The investigator must avoid making any final determinations of responsibility for sexual harassment.
Findings should be written in a factual way in an investigative report. Credibility determinations may not be based on an individual’s status as complainant, witness, or respondent.
During the investigative process and any further hearings, complainants and respondents have a right to have advisors of their choice participate in all aspects of the proceedings. The district will provide both parties with written notice of investigative interviews, meetings, and hearings, with sufficient time to prepare.
The investigation will not require, allow, rely upon, or otherwise use questions or evidence that
constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
Findings of Responsibility
After the investigator has completed the investigation, the designated decision-maker will be assigned to determine final responsibility or lack thereof for violating Title IX. The decision-maker must not be biased against any of the parties at the outset of this process.
Before the district can determine responsibility, an investigative report will be sent to the parties and the decision-maker will offer both the complainant and respondent the opportunity to submit proposed relevant, written questions to ask of any party or witness, to respond to questions posed by another party, and to offer additional limited follow-up. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant.
After this process is complete, the decision-maker will create a written determination regarding whether sexual harassment has occurred using a preponderance of the evidence standard.
A “preponderance of the evidence” means that it is more likely than not that the alleged conduct occurred. The decision-maker shall further recommend what action, if any, is required. If it is determined that sexual harassment occurred, the District will take steps to prevent the recurrence of the harassment and correct its discriminatory effect on the complainant and others if appropriate.
The written determination must be issued to both parties simultaneously and must include:
(A) Identification of the allegations potentially constituting sexual harassment;
(B) A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient’s code of conduct to the facts;
(E) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
(F) The district’s procedures and permissible bases for the complainant and respondent to appeal (a copy of, or direct reference to, this policy will suffice).
If there is a finding that sexual harassment occurred, the school district will provide remedies to the complainant designed to restore or preserve equal access to the school district’s education program or activity. Such remedies may include supportive measures.
Formal disciplinary actions may be imposed in the event that the preponderance of the evidence indicates a violation of this policy, up to and including expulsion or termination. Any disciplinary action will be in accordance with due process rights under State law and any applicable collective bargaining agreement.
As indicated above, these procedures do not limit the District from removing a student or employee from a program or activity on an emergency basis based on immediate threats to people’s physical health or safety or placing an employee on administrative leave during the pendency of the investigation.
Records
A record will be maintained for a period of seven years of any actions, including supportive measures, taken in response to a report or formal complaint of sexual harassment and district staff will document the basis for the district’s conclusion that its response was not deliberately indifferent.
Training
The district will ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
The district will ensure that decision-makers receive training on any technology to be used in interviews and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant,.
The district also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.
These training materials will be posted on the school district’s website.
Appeals
Any party may appeal the decision in writing to the Superintendent within fifteen (15) school days of receipt of the findings of the formal procedure or a dismissal on the following bases:
(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or 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.
The school district will notify the other party in writing when an appeal is filed and implement
appeal procedures equally for both parties. Both parties will have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.
The Superintendent or designee, as a further impartial decision-maker, will review the comprehensiveness and accuracy of the investigation and the conclusions, and issue written findings to both the complainant and respondent within thirty (30) school days of the appeal.
Contact information for the Superintendent:
Todd Stewart
11 Oakmont Drive
Ashburnham, MA 01430
978) 827-1434
External Grievance Procedure
Any student, parent or employee who chooses not to use the District's internal grievance procedures or who is not satisfied with the District's internal grievance procedures may file a complaint of discrimination or harassment with an appropriate state or federal agency.
For complaints related to discrimination/harassment of students:
The Office for Civil Rights, US Department of Education
5 Post Office Square, 8th Floor
Boston, MA 02109-3921
617-289-0111, FAX: 617-289-0150, TDD: 877-521-2172
OR
The Massachusetts Commission Against Discrimination
One Ashburton Place
Sixth Floor, Room 601
Boston, MA 02108
617-994-6000, TIY: 617-994-6196
For complaints related to discrimination/harassment of parents:
The Office for Civil Rights, US Department of Education
5 Post Office Square, 8th Floor
Boston, MA 02109-3921
617-289-0111, FAX: 617-289-0150, TDD: 877-521-2172
For complaints related to discrimination/harassment of employees:
The Office for Civil Rights, US Department of Education
5 Post Office Square, 8th Floor
Boston, MA 02109-3921
617-289-0111, FAX: 617-289-0150, TDD: 877-521-2172
OR
The Massachusetts Commission Against Discrimination
One Ashburton Place
Sixth Floor, Room 601
Boston, MA 02108
617-994-6000, TIY: 617-994-6196
OR
The Equal Employment Opportunities Commission
John F. Kennedy Federal Building
475 Government Center
Boston, MA 02203
800-669-4000
Referral to Law Enforcement, Other Agencies
Some alleged conduct may constitute both a violation of District policies and criminal activity. The building Principal, coordinator, Superintendent, or designee will refer matters to law enforcement and other agencies as appropriate under the law or District policy, and inform the complainant/ alleged victim of the right to file a criminal complaint.
Retaliation
Complainants and those who participate in the complaint resolution process or who otherwise oppose in a reasonable manner an act or policy believed to constitute discrimination are protected from retaliation by law and District policy. The coordinator or designee will inform all involved individuals that retaliation is prohibited, and that anyone who feels that they have experienced retaliation for filing a complaint or participating in the resolution process should inform the coordinator. The coordinator will investigate reports of retaliation and, where retaliation is found, take separate remedial and disciplinary action. -
Source: Murphy, Hesse, Toomey & Lehane, LLP
CROSS REF: ACAC - Nondiscrimination on the Basis of Gender Identity
Exhibit: ACAB-E Sexual Harassment Handout
First Reading: 09/16/20 Second Reading: 09/29/20 ADOPTED: 10/27/20