D. Complaint and Investigation Procedure

1. Employees

a. An employee who believes that he or she has been subjected to discrimination or sexual harassment by anyone is encouraged—but it is neither necessary nor required, particularly if it may be confrontational—to promptly tell the person that the conduct is unwelcome and ask the person to stop the conduct. An employee is not required to do this before filing a complaint. A person who receives such a request must immediately comply with it and must not retaliate against the employee.

b. The employee may file a discrimination or sexual harassment complaint with his or her immediate supervisor, who will in turn immediately contact one of the officials listed in Section D above.

c. If the employee fees uncomfortable about discussing the incident with the immediate supervisor, the employee should feel free to bypass the supervisor and file a complaint with one of the other listed officials or with any other supervisor.

d. After receiving any employee’s complaint of an incident of alleged discrimination or sexual harassment, the supervisor will immediately contact any of the individuals listed in Section D above to forward the complaint, to discuss it and/or to report the action taken. The supervisor has a responsibility to act even if the individuals involved do not report the complaint to that supervisor.

2. Students

a. A student who believes that he or she has been subjected to discrimination or sexual harassment by anyone is encouraged—but it is neither necessary nor required particularly if it may be confrontational—to promptly tell the person that the conduct is unwelcome and ask the person to stop the conduct. A student is not required to do this before filing a complaint. A person who receives such a request must immediately comply with it and must not retaliate against the student.

b. The student may file a complaint with his or her major department chair or director of an administrative unit, who will in turn immediately contact one of the officials listed in Section D above.

c. If the student feels uncomfortable about discussing the incident with the department chair or director of an administrative unit, the student should feel free to bypass the person and file a complaint with one of the above officials in Section D or to any chair, dean, or director of an administrative unit who will in turn immediately contact one of the officials listed above in Section D to forward the complaint, to discuss it and/or to report the action taken. The chair, dean or director of an administrative unit has a responsibility to act even if the individuals involved do not report to that person.

3. Non-Employees and Non-Students

Individuals who are neither NSHE employees nor NSHE students and who believe they have been subjected to discrimination or sexual harassment by a NSHE employee during the employee’s work hours or by a NSHE student on campus or at a NSHE-sponsored event may utilize any of the complaint processes set forth above in this Section D.
 

4. Training, Investigation and Resolution

a. General Requirements. The Title IX coordinator, executives, administrators designated to receive complaints, primary officer or designee, and appropriate management with decision-making authority shall have training or experience in handling discrimination and sexual misconduct complaints, and in the operation of the NSHE and Nevada Administrative Code disciplinary procedures.

b. Primary Prevention and Awareness Training. Institutions must offer new students and new employees primary prevention and awareness training that promotes awareness of rape, domestic violence, dating violence, sexual assault and stalking as defined in this policy. The training must address safe and positive options for bystander intervention to prevent harm or intervene in risky situations and the recognition of abusive behavior and how to avoid potential attacks.

c. Special Training With Regard to Sexual Violence. The training for each of the individuals identified in paragraph 4.a above, should include annual training on how to investigate and conduct hearings in a manner that protects the safety of complainants and promotes accountability; information on working with and interviewing persons subjected to sexual violence; information on particular types of conduct that would constitute sexual violence, including stalking and same-sex sexual violence; the proper standard of review for sexual violence complaints (preponderance of the evidence); information on risk reduction; information on consent and the role drugs or alcohol can play in the ability to consent; the importance of accountability for individuals found to have committed sexual violence; the need for remedial actions for the respondent, complainant, and institution community; how to determine credibility; how to evaluate evidence and weigh it in an impartial manner; how to conduct investigations; confidentiality; the effects of trauma, including neurobiological change; and cultural awareness training regarding how sexual violence may impact students differently depending on their cultural backgrounds.

d. Investigation. After receiving a complaint of the incident or behavior, the primary officer, or designee, will initiate an investigation to gather information about the incident. If the primary officer is unable to initiate an investigation, due to a conflict or for any other reason, the president shall designate another individual to act as primary officer for the matter. Each institution may set guidelines for the manner in which an investigation shall be conducted. The guidelines shall provide for the prompt, thorough, impartial, and equitable investigation and resolution of complaints, and shall identify the appropriate management level with final decision-making authority. The guidelines shall, at a minimum, provide the person subject to the complaint with information as to the nature of the complaint, and shall further provide that the person filing the complaint and the person who is the subject of the complaint have equal rights to be interviewed, identify witnesses and provide documentation pertaining to the complaint. In most cases, an investigation should be completed within 45 calendar days of receipt of the complaint.

e. Standard of Review. The standard for evaluating complaints shall be a preponderance of the evidence (i.e., the evidence establishes that it is more likely than not that the prohibited conduct occurred). At the completion of the investigation, findings and a recommendation will be made to the appropriate management regarding the resolution of the matter. The recommendation is advisory only.

f. Management Determination. After the recommendation has been made, a determination will be made by appropriate management regarding the resolution of the matter. If warranted, disciplinary action up to and including involuntary termination or expulsion will be taken. Any such disciplinary action shall be taken, as applicable, in accordance with NSHE Code Chapter 6, Chapter 8 or Chapter 10 (or applicable Student Code of Conduct), or, in the case of classified employees, Nevada Administrative Code (NAC) Chapter 284, or in the case of DRI technologists, the Technologists Manual. Other appropriate actions will be taken to correct problems and remedy effects, if any, caused by the conduct, if appropriate. If proceedings are initiated under Title 2, Chapter 6, Chapter 8 or Chapter 10, the applicable Student Code of Conduct, the NAC Chapter 284, or Technologists Manual, the investigation conducted pursuant to this policy may be used as part of such investigations. The administrative officer, in his or her discretion, may also supplement the investigation with additional investigation. In any disciplinary hearings conducted pursuant to a Student Code of Conduct or under Title 2, Chapter 6, Chapter 8, Chapter 10, the NAC Chapter 284, or Technologists Manual, the standard of evidence shall be by a preponderance of the evidence, (i.e., the evidence establishes that it is more likely than not that the prohibited conduct occurred). In connection with any such disciplinary hearings, the person filing the complaint and the person who is the subject of the complaint have equal rights to be interviewed, identify witnesses, and provide and receive documentation and witness lists pertaining to the complaint, and if an appeal is provided, to appeal the decision.

g. Parties to be Informed. After the appropriate management has made a determination regarding the resolution of the matter, and depending on the circumstances, both parties may be informed concurrently of the resolution (see subparagraph i below).

h.Confidentiality of Actions Taken. In the event actions are taken against an individual under NSHE Code Title 2, Chapter 6, Chapter 8 or Chapter 10 (or applicable Student Code of Conduct) or NAC Chapter 284, or the Technologists Manual, such matters generally remain confidential under those sections, except that final decisions following hearings or appeals of professional employees and State of Nevada personnel hearings involving classified employees are public records. Student matters generally remain confidential under the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, 34 CFR Part 99 (FERPA).

i. Crime of Violence Exception to the Family Educational Rights and Privacy Act (FERPA). When discriminatory conduct or sexual harassment involves a crime of violence or a non-forcible sexual offense, FERPA permits the institution to disclose to the complainant the final results (limited to the name of the respondent, any violation found to have been committed, and any sanction imposed) of a disciplinary proceeding against the respondent, regardless of whether the institution concluded that a violation was committed. With respect to an institutional disciplinary proceeding alleging sexual violence, domestic violence, dating violence or stalking offense, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. §1092 (f). 34 CFR 668.46 (Clery Act) requires that the accuser and the accused must be simultaneously informed of the outcome.

j. Disclosure of Sanction Imposed. In the event a student is found to have engaged in sexual harassment of another student, the institution shall disclose to the student who was harassed, information about the sanction imposed on the student who was found to have engaged in harassment when the sanction directly relates to the harassed student.

k. Resignation of Employee or Withdrawal of Student. If a student respondent withdraws from the institution or an employee respondent ends employment (e.g., resigns, retires) while an investigation of a complaint involving gender discrimination or sexual harassment is pending under this policy, the Title IX coordinator shall take appropriate action, which may include completing the investigation to the extent reasonably practicable, in order to prevent the reoccurrence of and to remedy the effects of the alleged misconduct.

l. Title IX Coordinator Monitoring. The institution Title IX coordinator has primary responsibility for coordinating the institution’s efforts to comply with and carry out its responsibilities under Title IX. The Title IX coordinator is responsible for monitoring all aspects of the investigation and any disciplinary process to help ensure that:

1. the process is fair and equitable to both the complainant and the respondent;
2. the applicable policies and procedures of NSHE and of the institution are followed; and
3. the interim measures and final remedies are followed.

5. Prompt Attention

Complaints of discrimination or sexual harassment are taken seriously and will be dealt with promptly, thoroughly, impartially, and equitably. Where discrimination is found to have occurred, the NSHE institution or unit where it occurred will act to stop the discrimination or sexual harassment, to prevent its recurrence, to remedy its effects, if any, and to discipline those responsible.
 

6. Confidentiality

The NSHE recognizes that confidentiality is important. However, in some limited circumstances confidentiality cannot be guaranteed. The administrators, faculty or staff responsible for implementing this policy will respect the privacy of individuals reporting or accused of discrimination or sexual harassment to the extent reasonably possible and will maintain confidentiality to the extent possible. Examples of situations where confidentiality cannot be maintained include, but are not limited to, necessary disclosures during an investigation, circumstances where the NSHE is required by law to disclose information (such as in response to legal process), or when an individual is in harm’s way.
a. Confidentiality in Complaints Involving Sexual Violence. In complaints involving sexual violence the following applies:

1. Varying Confidentiality Obligations. Complainants who are victims of sexual violence are encouraged to talk to somebody about what happened in order for them to receive the support they need, and so the institution can respond appropriately. Different individuals at the institution have different abilities to maintain a complainant’s confidentiality:

• Some are required to maintain near complete confidentiality; talking to them is sometimes called a “privileged communication.”
• Other employees may talk to a complainant in confidence, and generally only report to the institution that an incident occurred without revealing any personally identifying information. Disclosures to these employees will not trigger investigation into an incident against the complainant’s wishes, except in certain circumstances discussed below.
• Complainants are encouraged to talk to one of the individuals identified in this Section 6.
• Some employees are required to report all the details of an incident (including the identities of both the complainant and all others involved) to the Title IX coordinator. A report to these employees (called “responsible employees”) constitutes a report to the institution – and generally obligates the institution to investigate the incident and take appropriate steps to address the situation.

   This policy is intended to make employees, students and others aware of the various reporting and confidential disclosure options available to them so they can make informed choices about where to turn should they want to report an act of sexual violence. The institution encourages such complainants to talk to someone identified in one or more of these groups.

2. Privileged and Confidential Communications. A complainant or respondent may wish to consult with professional counselors, pastoral counselors or others. Certain professionals are not required to report incidents unless they have been granted permission:

• Professional Counselors. Professional, licensed counselors who provide mental-health counseling to members of the institution community (and including those who act in that role under the supervision of a licensed counselor) are not required to report any information about an incident to the Title IX coordinator without a complainant’s permission.
• Pastoral Counselors. A complainant and/or a respondent may choose to consult with a non-institution pastoral counselor and is encouraged to discuss confidentiality with that individual.
• Under Nevada law other professionals who may maintain confidentiality include lawyers, psychologists, doctors, social workers, and victim advocates employed by non-profit entities.

3. Complainant Options

    A complainant who reports an act of sexual violence to a professional listed above in Section 6.a.2 must understand that, if they want to maintain confidentiality, the institution will be unable to conduct a full investigation into the incident and will likely be unable to pursue disciplinary action against the respondent.

   A complainant who at first requests confidentiality may later decide to file a complaint with the institution or report the incident to local law enforcement, and thus have the incident fully investigated. A complainant shall be assisted in reporting the incident to local law enforcement if the complainant requests such assistance.

   Other Reporting Obligations: While professional counselors may maintain a complainant’s confidentiality vis-à-vis the institution, they may have reporting or other obligations under state law. For example, there may be an obligation to report child abuse, an immediate threat of harm to self or others, or to report in the case of hospitalization for mental illness.

   NSHE Employee Assistance Program providers would follow these guidelines, as would professionals in NSHE institution student counseling and psychological services areas, and professionals in community health clinics that reside on or are associated with NSHE institutions.

b. Reporting to "Responsible Employees"

1. “Responsible Employees” Defined and Duties. A “responsible employee” is an employee who has the duty to report incidents of sexual violence or other sexual misconduct, or who a complainant could reasonably believe has this authority or duty. When a complainant reports an incident of sexual violence to a responsible employee, the complainant has the right to expect the institution to take prompt and appropriate steps to investigate what happened and to resolve the matter promptly and equitably.

   A responsible employee must report to the Title IX coordinator all relevant details about the alleged sexual violence shared by the complainant and that the institution will need to determine what happened – including the name(s) of the complainant, respondent(s) and any witnesses, and any other relevant facts, including the date, time and specific location of the alleged incident. To the extent possible, information reported to a responsible employee will be shared only with people responsible for handling the institution’s response to the report. A responsible employee should not share information with law enforcement without the complainant’s consent or unless the complainant has also reported the incident to law enforcement.

   Institutions must identify in their policies those employees who are designated as “responsible employees” and may also designate those employees who are not considered “responsible employees.” Responsible employees may include but are not limited to the following employees (or categories of employees):

• Title IX Coordinator
• Anyone in a supervisory, managerial, administrative or executive role or positions, such as a provost, vice provost, vice president, dean, department chair, director of a unit, resident director, resident assistant, supervisor, student advocate or faculty advisors to student clubs.
  
  Before a complainant reveals any information to a responsible employee, the employee will inform the complainant of the employee’s reporting obligations. If the complainant wants to maintain confidentiality, the employee will direct the complainant to confidential resources.
  
  If the complainant wants to tell the responsible employee what happened but also wants to maintain confidentiality, the employee will inform the complainant that the institution will consider the request, but cannot guarantee that the institution will honor it. In reporting the details of the incident to the Title IX coordinator, the responsible employee will also inform the coordinator of the complainant’s request for confidentiality.
  
  Responsible employees will not pressure a complainant regarding the extent of the report the complainant wants to make. Responsible employees will not pressure a complainant to request confidentiality, but will honor and support the complainant’s wishes, including for the institution to fully investigate an incident. By the same token, responsible employees will not pressure a complainant to make a full report if the complainant is not ready to make such a report.

2. Requesting Confidentiality From the Institution: How the Institution Will Weigh the Request and Respond.

• Request for Confidentiality. If a complainant discloses an incident to a responsible employee but wishes to maintain confidentiality or requests that no investigation into a particular incident be conducted or disciplinary action taken, the institution will weigh that request against the institution’s obligation to provide a safe, non-discriminatory environment for everyone, including the complainant. If the Institution honors the request for confidentiality, a complainant will be informed that the institution’s ability to investigate the incident and pursue disciplinary action against the respondent may be limited.
  
  There are times when, in order to provide a safe, nondiscriminatory environment for all, the institution may not be able to honor a complainant’s request for confidentiality. The institution shall designate an individual to evaluate requests for confidentiality made by a complainant.
• Factors to Be Considered. When weighing a complainant’s request for confidentiality or a complainant’s request that no investigation or discipline be pursued, the institution will consider a range of factors, including the following:
• The increased risk that the identified respondent will commit additional acts of sexual or other violence, such as: whether there have been other sexual violence complaints about the same respondent;
  • Whether the reported sexual violence was committed with a weapon;
  • Whether the complainant is a minor; 
  • Whether the institution possesses other means to obtain relevant evidence of the reported sexual violence (e.g., security cameras or personnel, physical evidence);
• Whether the complainant’s information reveals a pattern of behavior (e.g., illicit use of drugs, alcohol, coercion, intimidation) at a given location or by a particular group;
• Other factors determined by the institution that indicate the respondent may repeat the behavior or that others may be at risk. Based on one or more of these factors, the institution may decide to investigate and, if appropriate, pursue disciplinary action even though the complainant requested confidentiality or requested that no investigation or disciplinary action be undertaken. If none of these factors is present, the institution will work to respect the complainant’s request for confidentiality.

c. Actions After Decision to Disclose. If the institution decides that a complainant’s confidentiality cannot be maintained, the institution will inform the complainant in writing or via email prior to starting an investigation and the institution will, to the extent possible, only share information with people responsible for handling the institution’s response.

    The institution will inform the respondent that retaliation against the complainant is prohibited and will take ongoing steps to protect the complainant from retaliation or harm and work with the complainant to create a safety plan. Retaliation against the complainant, whether by the respondent, or employees, students or others, will not be tolerated. The institution will also:

1. assist the complainant in accessing other available advocacy, academic support, counseling, disability, health or mental health services, and legal assistance both on and off institution property; 
2. provide other security and support, which could include issuing a no contact order, helping arrange a change of living or working arrangements or course schedules (including for the respondent pending the outcome of an investigation) or adjustments for assignments or tests; 
3. inform the complainant of the right to report a crime to the institution and/or local law enforcement and to have a criminal investigation proceed simultaneously; and 
4. provide the complainant with assistance if the complainant wishes to report a crime.

   The institution will not require a complainant or a respondent to participate in any investigation or disciplinary proceeding.

   Because the institution is under a continuing obligation to address the issue of sexual violence institution-wide, reports of sexual violence (including nonidentifying reports) will also prompt the institution to consider broader remedial action – such as increased monitoring, supervision or security at locations where the reported sexual violence occurred; increasing education and prevention efforts, including to targeted population groups; conducting climate assessments/ complainant surveys; and/or revisiting its policies and practices.

    Issuance of Timely Warning: If the institution determines that the respondent poses a serious and immediate threat to the institution community, police or security services may be called upon to issue a timely warning to the community. Any such warning will not include any information that identifies the complainant.

d. Reports to Other NSHE Institutions. If a responsible employee receives a complaint about sexual misconduct that has occurred at another NSHE institution, the responsible employee shall report the information to his or her Title IX coordinator, who shall provide the information to the Title IX coordinator at the other NSHE institution.

e. Public Awareness Events—Not Notice to the Institution. Public awareness events such as “Take Back the Night,” the Clothesline Project, candlelight vigils, protests, “survivor speak outs” or other forums in which complainants disclose incidents of sexual violence, are not considered notice to the institution of sexual violence for purposes of triggering the institution’s obligation to investigate any particular incident(s). Such events may, however, inform the need for institution-wide education and prevention efforts, and the Institution will provide information about complainants’ Title IX rights at these events.

f. Off-Institution Counselors and Advocates. Off-institution counselors, advocates, and health care providers will also generally maintain confidentiality and will not share information with the institution unless the complainant requests the disclosure and signs a consent or waiver form

7. Retaliation

Retaliation against an individual who in good faith complains of alleged discrimination or sexual harassment or provides information in an investigation about behavior that may violate this policy is against the law, will not be tolerated, and may be grounds for discipline. Retaliation in violation of this policy may result in discipline up to and including termination and/or expulsion. Any employee or student bringing a discrimination or sexual harassment complaint or assisting in the investigation of such a complaint will not be adversely affected in terms and conditions of employment and/or academic standing, nor discriminated against, terminated, or expelled because of the complaint. Intentionally providing false information is also grounds for discipline. “Retaliation” may include, but is not limited to, such conduct as:

• the denial of adequate personnel to perform duties;
• frequent replacement of members of the staff;
• frequent and undesirable changes in the location of an office;
• the refusal to assign meaningful work;
• unwarranted disciplinary action;
• unfair work performance evaluations;
• a reduction in pay;
• the denial of a promotion;
• a dismissal;
• a transfer;
• frequent changes in working hours or workdays;
• an unfair grade;
• an unfavorable reference letter.

a. Employees

1. An employee who believes that he or she has been subjected to retaliation may file a retaliation complaint with his or her immediate supervisor, who will in turn immediately contact the Title IX coordinator or any other responsible employee designated by the institution.
2. If the employee feels uncomfortable about discussing the alleged retaliation with the immediate supervisor, the employee should feel free to bypass the supervisor and file a complaint with the Title IX coordinator, any responsible employee designated by the institution or with any other supervisor.
3. After receiving any employee’s complaint of an incident of alleged retaliation, the supervisor will immediately contact the Title IX coordinator or a responsible employee designated by the institution to forward the complaint, to discuss it and/or to report the action taken. The supervisor has a responsibility to act even if the individuals involved do not report to that supervisor.

b. Students

1. A student who believes that he or she has been subjected to retaliation may file a retaliation complaint with his or her major department chair or director of an administrative unit, who will in turn immediately contact the Title IX coordinator or any responsible employee designated by the institution.
2. If the student feels uncomfortable about discussing the alleged retaliation with the department chair or director of an administrative unit, the student should feel free to bypass the person and file a complaint with the Title IX coordinator, a responsible employee designated by the institution, or to any chair, dean, or director of an administrative unit who will in turn immediately contact one of the those officials to forward the complaint, to discuss it and/or to report the action taken. The chair, dean or director of an administrative unit has a responsibility to act even if the individuals involved do not report to that person.

c. Complaints of retaliation under Title IX must be immediately provided to the Title IX coordinator.
 

8. False Reports

Because discrimination and sexual harassment frequently involve interactions between persons that are not witnessed by others, reports of discrimination or sexual harassment cannot always be substantiated by additional evidence. Lack of corroborating evidence or "proof" should not discourage individuals from reporting discrimination or sexual harassment under this policy. However, individuals who make reports that are later found to have been intentionally false or made maliciously without regard for truth, may be subject to disciplinary action under the applicable institution and Board of Regents disciplinary procedures. This provision does not apply to reports made in good faith, even if the facts alleged in the report cannot be substantiated by subsequent investigation.
 

9. Supervisor Responsibilities

a. Every supervisor of employees has responsibility to take reasonable steps intended to prevent acts of discrimination or sexual harassment, which include, but are not limited to:

b. Monitoring the work and school environment for signs that discrimination or harassment may be occurring;

c. Refraining from participation in, or encouragement of actions that could be perceived as discrimination or harassment (verbal or otherwise);

d. Stopping any observed acts that may be considered discrimination or harassment, and taking appropriate steps to intervene, whether or not the involved individuals are within his/her line of supervision; and

e. Taking immediate action to minimize or eliminate the work and/or school contact between the two individuals where there has been a complaint of sexual harassment, pending investigation.

If a supervisor receives a complaint of alleged discrimination or sexual harassment, or observes or becomes aware of conduct that may constitute discrimination or sexual harassment, the supervisor must immediately contact the Title IX coordinator or a responsible employee designated by the institution to forward the complaint, to discuss it and/or to report the action taken.

Failure to take action to prevent the occurrence of or stop known discrimination or harassment may be grounds for disciplinary action.
 

10. Relationship to Freedom of Expression

The NSHE is committed to the principles of free inquiry and free expression. Vigorous discussion and debate are fundamental rights and this policy is not intended to stifle teaching methods or freedom of expression. Discrimination or sexual harassment, however, is neither legally protected expression nor the proper exercise of academic freedom; it compromises the integrity of institutions, the tradition of intellectual freedom and the trust placed in the institutions by their members.