Formal Complaint Process: Policy Against Discrimination, Harassment & Sexual Violence, Emerson College

Effective August 2023

Last updated November 21, 2023

Jurisdiction
Initial Assessment/Educational Response
Initiating a Formal Complaint
Notice to the Respondent
Informal Resolution Process
Investigative Procedure
Process Determination/Dismissal
Formal Resolution Process (Non-Title IX)
Other Considerations

The Formal Complaint Process (Process) includes the process and procedures that are available to students, employees (staff and faculty) and, in some cases, third-parties who may have experienced conduct in violation of the Policy Against Discrimination, Harassment & Sexual Violence (Policy). When Emerson is notified of a possible violation of the Policy, the Office of Equal Opportunity (OEO) will attempt to communicate with the person who experienced the conduct, who is referred to as the Impacted Party.¹ This person may be the same or a different person than the Reporting Party, who is the individual who brought the matter to the attention of the College. OEO will inform the Impacted Party of support resources and supportive/interim measures, which are available (without fee or charge) regardless of whether a formal complaint will be filed, or a process is being pursued. OEO will also inform the Impacted Party of the available options for addressing the conduct within the College. Generally the Impacted Party controls what steps might be taken to address any conduct. An Impacted Party may also have the option to concurrently pursue separate legal remedies outside of the College, including filing criminal charges with the police, filing a civil legal action and/or filing an administrative complaint. When the College receives notice of a report of conduct that may implicate the Policy, the Impacted Party may have the option to file a Formal Complaint and may choose to initiate the Investigative Procedure and/or the Informal Resolution Process. In cases where the person who engaged in the alleged conduct is a College employee, the Institution may sometimes need to pursue a Formal Complaint even if the Impacted Party is not interested in pursuing action. If the Investigative Procedure is initiated under this Process, a determination will be at the Process Determination/Dismissal stage regarding the applicable adjudication process (either the Formal Resolution Process or Title IX Grievance Process) that will be used to decide whether the Policy was violated.

I. Jurisdiction

The Policy Against Discrimination, Harassment & Sexual Violence (Policy) applies to all students², employees (staff and faculty)³ and any other individuals who participate in the College’s programs or activities. This Formal Complaint Process (Process) is applicable to discrimination, harassment and/or sexual violence (sexual assault, relationship violence, stalking, sexual exploitation) that occurred on-campus and/or in off-campus Emerson programs, activities or events (including, but not limited to, any national or international College-sponsored programs or College-led trips)⁴. This Process may also apply to discrimination, harassment and/or sexual violence that occurred off-campus but that has an impact on the Emerson community. There is no time limitation for the submission of a Formal Complaint alleging a violation of the Policy. Matters will be adjudicated under the Process in effect at the time the complaint is initiated, subject to the time restrictions outlined in the Title IX Grievance Process, as applicable.

The College has jurisdiction over the person accused of the alleged conduct so long as they continue to be affiliated with Emerson as a student or employee (staff or faculty). On occasion, the person accused of discrimination, harassment, or sexual violence may be someone who is not affiliated with, or is no longer affiliated with, Emerson College. Under those circumstances, the College’s ability to respond to the incident may be limited. Emerson can provide information about support resources and supportive/interim measures available, both on and off campus, to an Impacted Party who is a member of the Emerson community. The College can also provide information regarding any off-campus options that may be available to address the conduct, including referring the matter to law enforcement or another institution. When appropriate, Emerson has the discretion to restrict a non-affiliated person’s access to campus or other Emerson property.

There may also be occasions where a non-affiliated person, a formerly affiliated person or a third party has experienced discrimination, harassment or sexual violence which is alleged to have been committed by an Emerson student or employee, which may or may not have occurred on campus or at a College program, activity or event. When the person who experienced the conduct is not (or no longer is) a College affiliate, Emerson maintains the option to exercise discretionary jurisdiction over that incident under certain circumstances. Concerns that are raised by a non-affiliated person or third party should be referred to the Office of Equal Opportunity (OEO) (oeo [at] emerson.edu (oeo[at]emerson[dot]edu) 617-824-8999) for a determination regarding whether Emerson will exercise discretionary jurisdiction over a non-affiliate complaint. In determining whether to exercise discretionary jurisdiction over these types of matters, Emerson will consider many factors, including any impact the conduct may have on the College community and the information that may be available regarding the alleged conduct. The College reserves the right to conduct an initial assessment into the allegations before making a determination regarding whether to exercise discretionary jurisdiction over the matter.

II. Initial Assessment/Educational Response

When notified of an alleged violation of the Policy Against Discrimination, Harassment & Sexual Violence, the Office of Equal Opportunity (or their designee) (OEO) will conduct a review and assessment of the reported conduct. This assessment is a means of informally gathering information to initially determine whether the alleged conduct could be a violation of the Policy and/or whether the Formal Complaint Process (Process) is an available option to address the reported concerns. The decision regarding whether a matter is appropriate for the Process will be made by OEO, at their discretion, based on the available information. In situations where the available information at that time regarding the alleged conduct suggests it may not fully implicate the Policy, but it is still something of concern to the College, OEO has the option to meet with the individual accused of the alleged conduct to discuss the concerns. This conversation is meant to alert the accused individual to the concerns that were reported and to give them an opportunity to respond to those items. In situations where the accused individual is an employee (staff or faculty), their supervisor, dean or other appropriate official may also participate in this conversation. The purpose of this conversation is to educate the accused individual about the Policy and to provide them with an opportunity to make any changes necessary to avoid violating the Policy in the future. This conversation is meant to be educational in nature and may be the only response to the reported concerns at that time. During the conversation, the accused individuals will be reminded about the prohibition against retaliation. A record of the conversation will be maintained by OEO and may be taken into consideration should future concerns be reported. If additional information regarding these allegations is reported to OEO, additional steps maybe taken regarding that conduct in the future, including the initiation of a Formal Complaint, as appropriate.

III. Initiating a Formal Complaint

In order to pursue action for violation of the Policy Against Discrimination, Harassment & Sexual Violence (Policy), the Impacted Party (student, staff or faculty) will need to meet with the Office of Equal Opportunity (OEO) to initiate a Formal Complaint. Once the Formal Complaint has been filed with OEO, that individual can then access the Informal Resolution Process and/or the Investigative Procedure. The Formal Complaint Process is not meant to be an adversarial process between the parties, but rather provide an administrative process by which Emerson determines if the Policy was violated. The Impacted Party who experienced the alleged conduct, and who is initiating the Formal Complaint, will be referred to as the Complainant. The person against whom the Formal Complaint is filed will be referred to as the Respondent. As discussed below, at the conclusion of the Investigative Procedure, a determination will be made regarding whether the final adjudication of the complaint will be made through the Formal Resolution Process or the Title IX Grievance Process, as applicable.

A. Support Person/Advisor

The College recognizes that going through the Formal Complaint Process can be stressful for all involved (students, staff and faculty). To help support the Complainant and Respondent through this process, each is allowed to have one support person or advisor of their choice present at each meeting with OEO, in the Informal Resolution Process, the Investigative Procedure, the Formal Resolution Process and/or the Title IX Grievance Process, as applicable. Witnesses are not allowed a support person or advisor nor can they act as a support person/advisor within these processes. A support person/advisor is someone whom the Complainant/Respondent trusts to provide advice and support. A support person/advisor can be any person the Complainant/Respondent feels comfortable confiding in, and need not be affiliated with the College (e.g. a friend, a family member, a person from a support or advocacy agency, legal counsel, etc.). Within two (2) business days prior to any meeting under this Process, a Complainant/Respondent must provide the Associate Vice-President of Equity, Access & Equal Opportunity (or their designee) (AVP) and/or the Investigator with the identity and contact information (e-mail and telephone) of the support person/advisor who will be accompanying them to that meeting.

The support person/advisor’s role in this Process is to observe the proceedings and provide passive support to the Complainant/Respondent, but not to participate. All conversations under this Process will occur only with the Complainant/Respondent directly. A support person/advisor does not join in any of the conversations that are the subject of that meeting, but instead provides support to the Complainant/Respondent solely through their presence. A support person/advisor is not allowed to speak on behalf of the Complainant/Respondent during the meetings, and is present primarily to provide emotional support.⁵ If at any point a support person/advisor becomes disruptive or is otherwise unable to comport themselves within the parameters of the support person/advisor role, they will be asked to leave the meeting. Any documentation, statement or comments submitted in this Process must be written by the Parties. Submissions by support person/advisors, including friends, family, advisors or attorneys, will not be considered.

B. Complainant-Initiated Formal Complaint

Whether the Complainant chooses to initiate an Informal Resolution Process or the Investigative Procedure, they will need to meet with the Office of Equal Opportunity (OEO) to create a Formal Complaint. The Formal Complaint is a document that is created by OEO from information provided by the Complainant. The Formal Complaint can only be initiated after meeting with OEO, and information can be submitted to OEO in person, virtually, by mail, or through email (oeo [at] emerson.edu (oeo[at]emerson[dot]edu)).

OEO will conduct an initial assessment (as discussed above) of the submitted information to determine whether the alleged conduct could be a violation of the Policy and/or whether the Formal Complaint Process (Process) is an available option to address the reported concerns. If the matter is not subject to this Process, OEO will work with the Impacted Party to discuss alternate responses to that conduct. The decision regarding whether a matter is appropriate for the Process will be made by OEO, at their discretion.

Statement: The Complainant must provide a statement (written or oral) to OEO outlining the details of the alleged incident(s) that is believed to have violated the Policy, including the name of the Respondent(s) and the date(s) (or approximate dates) and location(s) of the incident(s). From the information provided by the Complainant, a written Formal Complaint will be created. The Formal Complaint must be signed by the Complainant, or otherwise indicate that the Complainant is initiating the complaint. If the Formal Complaint is submitted in a form that does not meet these requirements, OEO will work with the Complainant to make any correction and/or collect additional information that is needed.
Witnesses and Documents: With the Formal Complaint, the Complainant should provide OEO with the names and contact information for any witnesses who may have relevant information about the alleged incident(s). The Complainant should include a brief description of what information a witness might have related to the alleged conduct. The Complainant should also identify to OEO any documents that may be available regarding the incident(s), including, but not limited to, emails, text messages, journal entries or social media posts. Both parties should understand that any information gathered through the course of this Formal Complaint Process will be shared with the other party.
Review Privacy/Non-Retaliation Requirements: Each Party (and witness) will review a document containing information about the requirements of the Process regarding privacy and non-retaliation. Through a review of this document, the parties and witnesses should understand that while parties are not restricted from discussing the allegations to gather information relevant to the Formal Complaint, they have been advised that there is a prohibition against retaliation and that they have been advised about the importance of maintaining discretion and privacy regarding the complaint to protect the integrity of the Process.

C. College-Initiated Administrative Formal Complaint

Emerson has the option to independently initiate an Administrative Formal Complaint against a student or employee (staff or faculty) under the Formal Complaint Process. This type of complaint may be initiated in situations where the Impacted Party(s) is unable or uninterested in initiating the process and/or the conduct at issue poses a threat to campus safety (which includes, but is not limited to, the involvement of physical violence, the use of weapons, an ongoing threat, or the involvement of minors or repeat offenders/multiple victims). This type of complaint can also be initiated when the conduct is discovered by the College (rather than through a report), when allegations are made against a College employee, or when the allegations are made by a non-affiliate (including a former affiliate) or third-party. Most alleged violations of the Policy by employees will be addressed through an Administrative Formal Complaint, at the discretion of OEO. OEO has the option to initiate an Administrative Formal Complaint when sufficient information is available regarding the incident to provide the Respondent with adequate notice (as discussed below). To obtain sufficient information about the incident, usually an account of the incident from the Impacted Party(s) will be required. If the College decides to proceed with an Administrative Formal Complaint, OEO will make sure the Impacted Party is informed before the process is initiated.

In this type of complaint, the College will act in lieu of the Complainant, and the Administrative Formal Complaint will be signed by the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee) physically or electronically. The Impacted Party who experienced the alleged conduct will be considered the Impacted Witness in an Administrative Formal Complaint. For Administrative Formal Complaints involving alleged Title IX Sexual Harassment/Sexual Violence under the Policy, the Impacted Witness may still have the rights of a party to the complaint, as decided at the discretion of the AVP.

IV. Notice to the Respondent

After a Formal Complaint has been initiated by the Office of Equal Opportunity (OEO), the Respondent (student, staff or faculty) will receive a written Notice of Formal Complaint. The Notice of Formal Complaint will include the identities of the parties involved (if known), the specific section(s) of the Policy Against Discrimination, Harassment & Sexual Violence (Policy) alleged to have been violated, a brief description of the alleged conduct, and the date(s) (or approximate dates) and location(s) of the alleged conduct. The Respondent will receive the Notice of Formal Complaint in a meeting with OEO where they will review and discuss the Notice of Formal Complaint, the Informal Resolution Process, Investigative Procedure, Formal Resolution Process and/or Title IX Grievance Process, as applicable. This initial meeting will only be to provide the Respondent with the Notice of Formal Complaint and review the Formal Complaint Process, and not to talk about the substance of the complaint. The Respondent will have the opportunity to share information about the factual allegations in the Formal Complaint later during the Investigative Procedure (discussed below).

At this point in the process, the Respondent has the option to accept responsibility for the conduct outlined in the Notice of Formal Complaint. Such acceptance of responsibility must be submitted to OEO in writing. If the Respondent accepts responsibility, the Formal Complaint would be referred to the Office of Community Standards for students (who will consult with other offices as appropriate) or Human Resources for employees (who will work with the employee’s supervisor), for sanctioning in accordance with the appropriate sanctioning process. If the Respondent chooses to accept responsibility, such acceptance cannot be withdrawn.

The Investigative Procedure (as discussed below) is meant to gather relevant information about the alleged conduct to assist the decision-makers in making a determination of whether the Policy was violated at the conclusion of the Formal Resolution Process or Title IX Grievance Process, as applicable. The Respondent is presumed not responsible unless and until a determination is made otherwise after the completion of one of those processes. If additional possible Policy violations are identified at any point during the Investigative Procedure, the Respondent will be notified of those additional allegations in writing through an Amended Notice of Formal Complaint.

If the Respondent does not accept responsibility for the alleged conduct, then:

Statement: The Respondent can provide an optional written statement to OEO outlining their response to the Notice of Formal Complaint. If the respondent chooses to exercise this option, this statement must be submitted to OEO within ten (10) business days. The Investigative Procedure may be started before the Respondent submits their statement.
Witnesses and Documents: The Respondent should provide OEO with the name and contact information of any witnesses who may have relevant information about the alleged incident(s). The Respondent should include a brief description of what information a witness might have related to the alleged conduct. The Respondent should also identify to OEO any documents that may be available regarding the incident(s), including, but not limited to, emails, text messages, journal entries or social media posts. This information should be submitted to OEO within ten (10) business days after the receipt of the Formal Notice of Complaint. The Investigative Procedure may be started before the Respondent submits their witnesses and documents. Both parties should understand that any information gathered through the course of the Formal Complaint Process will be shared with the other party.
Review Privacy/Non-Retaliation Requirements: Each Party (and witnesses) will review a document containing information about the requirements of the Process regarding privacy and non-retaliation. Through a review of this document, the parties and witnesses should understand that while parties are not restricted from discussing the allegations in order to be able to gather information relevant to the Formal Complaint, they have been advised that there is a prohibition against retaliation and that they have been advised about the importance maintaining of discretion and privacy regarding the complaint to protect the integrity of the Process.

V. Informal Resolution Process

This Informal Resolution Process is available to students, staff, faculty and, in some cases, non-affiliated parties. Before an Informal Resolution Process can be used for a violation of the Policy Against Discrimination, Harassment & Sexual Violence (Policy), a Formal Complaint must be initiated (as discussed above). The Complainant and Respondent to a Formal Complaint both have the option to request an informal resolution. Such informal resolutions can be used prior to, instead of, or during, the Investigative Procedure. The Associate Vice-President of Equity, Access, & Equal Opportunity (AVP) (or their designee) will decide whether to start, delay, continue or stop the Investigative Procedure during the Informal Resolution Process, at their discretion. Informal methods of resolution will be facilitated by the AVP (or their designee) and will not involve face-to-face communication between the parties, unless both parties request and agree to some type of in-person resolution. Resolution options may include, but are not limited to, negotiated outcomes, mediation (directly or through others), shuttle diplomacy, restorative justice, facilitated conversations, counseling, training and/or educational conversations or projects. Any informal resolution facilitated by the AVP (or their designee) must adequately address the concerns of the Complainant and Respondent, as well as the overall interest of the College in stopping, remedying, and preventing Policy violations. The AVP will make the determination regarding whether the Informal Resolution Process will be an option in a pending matter based on a review and assessment of the allegations, the available information, and the interests of the parties. The Informal Resolution Process may not be available for matters where an employee (faculty or staff) allegedly engaged in certain forms of Title IX Sexual Harassment against a student. Mediation may not be an available form of informal resolution for issues of Sexual Violence, as determined by the AVP (or their designee).

Entering into the Informal Resolution Process is voluntary, and both the Complainant and Respondent must agree to participate. If the parties agree to the Informal Resolution Process, the Office of Equal Opportunity (OEO) (or an assigned designee) will attempt to facilitate a resolution that is agreeable to the Complainant, the Respondent, and the College. Under the Administrative Formal Complaint process, the resolution will need to be agreeable to the Respondent and the College. In an Administrative Formal Complaint, the AVP has the option to consult with the Impacted Witness as deemed appropriate and at their discretion. Either party has the option to discontinue the informal process at any time and may also request that the Investigative Procedure be started or continued to conclusion. The College also has the discretion to terminate the Informal Resolution Process and continue with the Investigative Procedure or initiate the Formal Resolution Process or Title IX Grievance Process as deemed appropriate by the AVP. The parties should understand that information gathered during the Informal Resolution Process cannot later be used in another Process without permission from all parties.

At the conclusion of the Informal Resolution Process, a written Resolution Agreement between the parties will be created by OEO (or their designee). If a Resolution Agreement is reached between the parties, both the Complainant and Respondent will receive a written copy of that final Agreement. When a Resolution Agreement has been entered, the parties will acknowledge that the Agreement is the final resolution of the pending matter, that the Formal Complaint will be dismissed, and that the pending matter will be considered closed. The Formal Complaint Process may not subsequently be initiated with respect to any of the allegations in the Formal Complaint that is the subject of the Resolution Agreement. If the Resolution Agreement is violated or the terms are not followed/completed by one of the parties, that violation will be addressed for students as a conduct matter through the Office of Community Standards and for employees by Human Resources (or their designee), as appropriate.

VI. Investigative Procedure

Once a Formal Complaint has been initiated, the Associate Vice-President of Equity, Access & Equal Opportunity (or their designee) (AVP), will assign one Investigator who will be responsible for gathering information regarding the allegations raised in the Formal Complaint. The assigned Investigator may be an employee of the College or someone from outside the College, at the discretion of the AVP. The AVP will assign an Investigator who does not have a conflict of interest or bias for or against complainants or respondents generally, and who has no conflict or bias against any of the parties to the Formal Complaint. The assigned Investigator will have annual training and experience on issues of relevance, discrimination, harassment, and sexual violence (sexual assault, relationship violence, stalking, sexual exploitation), and will be able to create an Investigative Report that fairly summarizes relevant evidence in the pending matter. Emerson reserves the right to assign more than one investigator or a note taker in addition to the Investigator to a matter as deemed necessary by the AVP, at their discretion. In all cases, the Investigator will conduct a prompt, equitable, fair, thorough and impartial investigation into the allegations raised, under the supervision of the AVP⁶. As noted previously, the Formal Complaint Process is not meant to be an adversarial process, meaning that throughout the Investigative Procedure, the Complainant does not have the burden to prove, nor does the Respondent have the burden to disprove, the underlying allegations. Instead, it is the Investigator’s role to gather relevant information about the alleged conduct (as discussed below) to assist the decision-maker in making a determination as to whether the Policy was violated at the conclusion of the Formal Resolution Process or Title IX Grievance Process, as applicable.

A. Timing

Through this Investigative Procedure, the College strives to provide a process that is prompt, equitable, fair, thorough, trauma-informed, and impartial towards all parties and witnesses involved (student, staff and faculty). During the academic year, the goal is to complete the Formal Resolution Process within a reasonably prompt timeframe after the initiation of the Formal Complaint through the Office of Equal Opportunity (OEO) (and not from the time of when the matter was first reported), including any appeals. Depending on the complexity of the investigation and whether the Formal Resolution Process or Title IX Grievance Process is used, more or less time may be required to complete the process. The parties will be kept informed, in writing, at least every 30 days, regarding the progress of the Investigative Procedure, and are welcome to contact OEO (oeo [at] emerson.edu (oeo[at]emerson[dot]edu) 617-824-8999) at any time for information regarding the status of the complaint.⁷ It should be noted that while complaints will be processed to the best of the College’s ability during break periods, including the summer and holidays, the availability of witnesses, parties and/or College officials during these times can often require additional time for the completion of the Investigative Procedure. If a student Respondent is scheduled to graduate prior to the resolution of a Formal Complaint, a hold may be placed on their graduation and/or official transcripts until the complaint is fully resolved (including any appeal). Please see below for information regarding transcript notations.

B. Cooperation

In order for the Investigation to be conducted in a timely manner, it is important that parties and witnesses make themselves reasonably available to the Investigator, including over holidays and breaks. The Complainant, Respondent and witnesses should know that they are expected to comply with instructions from College officials, including the Investigator, and are expected to cooperate with the Investigator throughout the Investigative Procedure.⁸ The Complainant, Respondent and witnesses should also know that they are prohibited from knowingly making false statements and/or knowingly submitting false information to the Investigator.⁹ Knowingly providing false information at any point in the Process may result in a separate disciplinary action.

The Complainant will have to meet with OEO to initiate the Formal Complaint. If the Respondent chooses not to meet with OEO or the Investigator, they should understand that the Investigative Procedure will continue without the benefit of their input. The Formal Complaint may still be adjudicated through the Formal Resolution Process or Title IX Grievance Process without the benefit of input from a non-cooperative party. The Investigator will reach out to the Complainant/Respondent to schedule these meetings. If a party does not respond to the Investigator within ten (10) business days after that initial contact or fails to make themselves reasonably available to meet with the Investigator, the party’s opportunity to participate in the Investigation or any subsequent Process may be waived. The party would then have waived their right to be heard and to participate in the Investigative Procedure and any subsequent Process by failing to respond to, or attend a meeting with, the Investigator.

C. Accommodations

A party or witness (student or employee) who has a disability that may require an accommodation in the Formal Complaint Process, should work with the appropriate office to determine what reasonable accommodations may be available. Students should work with Student Accessibility Services (SAS) (sas [at] emerson.edu (sas[at]emerson[dot]edu) or 617-824-8592) to request an accommodation for the Process. Please note that any accommodations regarding the Formal Complaint Process must be determined separately from any academic disability accommodations that may be in place. Employees (staff and faculty) needing an accommodation during the Process should work with Human Resources (HR) (617-824-8580 or hr [at] emerson.edu (hr[at]emerson[dot]edu)). All approved disability accommodations must be communicated to the OEO (oeo [at] emerson.edu (oeo[at]emerson[dot]edu) 617-824-8999) in writing at least two (2) business days in advance of any meetings or hearings where the accommodations will be needed. Only accommodations approved by SAS or HR will be implemented during the Process.

D. Providing Information

In the Investigative Procedure, both the Complainant and Respondent have an equal opportunity to present documents and suggest witnesses and to submit all information (inculpatory and exculpatory) they believe is relevant to the resolution of the pending matter. The parties should understand that it is best to provide the Investigator with all the relevant information as early in the Investigation as possible, in accordance with any timelines set in the Investigative Procedure or by the Investigator. While the parties are encouraged to share any information they believe is relevant, it is the responsibility of the Investigator to gather all relevant and available information in the pending Investigation. However, the scope of the Investigation will not be limited to information provided by the Complainant or Respondent or to the allegations in the Notice of Formal Complaint. If additional possible Policy violations are identified at any point during the Investigative Procedure, the Respondent will be notified of those allegations in writing through an Amended Notice of Formal Complaint.

The parties must provide the Investigator with all information relevant to the Formal Complaint that is known and available during the Investigative Procedure. Relevant information that was known and available but was not shared during this Investigation will be presumptively inadmissible in the subsequent Formal Resolution Process or Title IX Grievance Process, as applicable. If a party refuses to participate in Investigation or provide all information available to them at time of Investigation, that information cannot be presented for the first time in the Formal Resolution Process or Title IX Grievance Process barring exceptional circumstances, as determined by the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee).

E. Scope of Investigation

The Investigator is responsible for conducting an objective review of the information during the Investigative Procedure and will be responsible for deciding what information is relevant for inclusion in the Investigative Report. The burden of proof in any process always remains with the College. There is no presumption in the Investigation that the Respondent is responsible for alleged conduct. Instead, it is the Investigator’s role to gather relevant information about the alleged conduct to assist the decision-makers in making a determination of as to whether the Policy was violated at the conclusion of the Formal Resolution Process or Title IX Grievance Process, as applicable. The Investigator will consult with the AVP as needed throughout the Investigative Procedure.¹⁰

During the course of the Investigative Procedure, the Investigator may utilize some or all of the following information or procedures, at their discretion, and in whatever order the Investigator deems most appropriate.

Documents: The Investigator will review any statements provided by the Complainant/Respondent. At the beginning of the Investigation, the Complainant/Respondent should also identify all documents which they believe may be relevant to the complaint, including, but not limited to, both paper and digital items, such as text messages, journal entries, e-mails and social media communications. If they are not in possession of those documents, the Complainant/Respondent should identify who may have those materials. It will be the responsibility of the Investigator to try, to the best of their ability, to gather the identified information outside the possession of the parties. As determined by the Investigator, any documents or information deemed to be material to the complaint and that will be used in the Investigative Report will be disclosed to both the Complainant and Respondent for comment or rebuttal during the course of the Investigation. All relevant documents obtained through the course of the Investigation, regardless of whether they are included in the Investigative Report, will be shared with the parties for review and comment during the Investigative Report Review.
Complainant/Respondent Interviews: The Investigator will interview the Complainant and Respondent separately. This meeting is an opportunity for each party to discuss their recollection of the event(s) in question, supplement any statements previously submitted, voice any concerns, and to work with the Investigator to determine what additional information may be helpful to the Investigation of the allegations in the Formal Complaint. Each party will receive written notice (usually via email) of the request for an interview by the Investigator with sufficient time to prepare before the interview, as determined by the Investigator. The Investigator may interview the Complainant and Respondent more than once, as necessary, at the discretion of the Investigator. During their interview, the Complainant/Respondent will have the opportunity to learn about the evidence gathered in the Investigation to date and the Investigator will provide them with an opportunity to comment or respond to that information. There will be no opportunity for the Complainant and Respondent to question each other directly during the Investigative Procedure. However, each party will have the opportunity to submit written or oral questions to the Investigator to be asked of the other party or witnesses during the Investigative Procedure. The Investigator will then ask those questions, as deemed appropriate and relevant by the Investigator at their discretion, of the opposite party or witnesses. The Investigator will contact the Complainant and Respondent individually to schedule these meetings. If the Complainant/Respondent does not respond or attend a meeting with the Investigator within ten (10) business days after that initial contact, the Complainant/Respondent’s opportunity to participate in the Investigation and any subsequent process may close. The Complainant/Respondent may waive their right to be heard and to participate in the Investigative Procedure by failing to cooperate with the Investigator. If a party refuses to participate in the Investigative Procedure or provide all relevant information known and available to them at time of Investigation, that information cannot be presented for the first time in the Formal Resolution Process or Title IX Grievance Process barring exceptional circumstances, as determined by the Associate Vice-President of Equity, Access & Equal Opportunity (AVP).
Witnesses: The Investigator will interview any witnesses identified by the Complainant and/or Respondent that the Investigator deems to be relevant to the resolution of the Formal Complaint, at their discretion. Please note that character witnesses are not considered relevant to the Process. The Complainant and Respondent will both have an equal opportunity to identify witnesses for the Investigator and can tell a person they identified them as a witness and that they may be contacted by the Investigator. Witnesses should not be intimidated, threatened, or improperly influenced in any way by either the Complainant or Respondent or through others (e.g. friends, family members, attorneys, etc.). Any attempt to threaten, intimidate or the otherwise improperly influence the testimony of a witness may result in a separate disciplinary action by the College. The Investigator may also interview any other person(s) that they believe may have information relevant to this matter, at their discretion. The Investigator will employ best efforts to interview relevant witnesses who are no longer on campus or participating in an Emerson program, attempting to meet with them by phone or internet (i.e. Zoom). Witnesses will review the Privacy/Non-Retaliation Requirements, acknowledging that they have been advised about the prohibition against retaliation and that they have been advised about the importance maintaining discretion and privacy regarding the complaint to protect the integrity of the process and the privacy interests of the parties.
Expert Witnesses: The Investigator reserves the right, at their discretion, to consult with any experts which they deem necessary to the determination of the facts of this case. An expert witness may be consulted to review or provide a professional opinion regarding information discovered in the Investigation including, but not limited to, evidence collection kits (“rape kits”) and toxicology reports. The Investigator may interview an expert witness offered (and paid for) by a Party, if the Investigator deems that witness to be relevant to the resolution of the Formal Complaint, at their discretion.

F. Information Not Considered

Generally, the past sexual history of the Complainant or Respondent will not be considered by the Investigator in the Investigative Procedure. However, there are limited circumstances in which such information might be considered relevant in the Formal Complaint Process. Those situations include:

When the prior/subsequent sexual history between the Complainant and anyone other than the Respondent is directly relevant to prove that injuries alleged to have been inflicted by the Respondent were inflicted by another individual.
When the existence of a dating relationship or prior/subsequent consensual sexual relations between the Complainant and the Respondent is relevant to how the parties communicated consent in prior/subsequent consensual sexual relations.

When information about a domestic/dating relationship or prior/subsequent consensual sexual relations between the Complainant and Respondent will be considered, it should be noted that the mere fact that the Complainant and Respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the alleged conduct in question was consensual (i.e., consent for prior sexual activities does not equate to consent for the activity in question). If information under this section will be considered in the Process, the Investigator (or designee) shall provide a written explanation to the parties as to why consideration of the information is being allowed. The Investigator will consult with the AVP as needed in determining whether to include this information.

G. Recording Interviews

Through the Investigative Procedure, the Investigator may elect to audio and/or video record an interview with any party or witnesses. Only the Investigator may record that proceeding, and it will only be recorded with the knowledge and consent of the party or witness. Any audio or video recording of any meeting with OEO by any party, witness or support person/advisor is expressly prohibited at all times during the Formal Complaint Process and could result a separate disciplinary action. If a recording is transcribed, the original recording of the interview will be destroyed at the conclusion of the Investigative Procedure, but the transcript of that interview will be maintained in compliance with the maintenance of records section of this Policy (as discussed below).

H. Investigative Report and Review

Once the Investigation has been completed, the Investigator will prepare a draft Investigative Report summarizing the relevant facts obtained through the Investigative Procedure. The Investigator may draw conclusions regarding the credibility of statements by the Complainant, Respondent, witnesses and the reliability of documentation. The Investigator will identify any undisputed facts from the Investigation. The Investigator will consult with the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) in preparing the Investigative Report. The AVP may also review and comment on the report before the draft is shared with the parties¹¹. Once the draft report is complete, the Complainant and Respondent will each be given the opportunity to independently review the draft Investigative Report and any exhibits to that report. The Parties will also be given access to all of the interviews and relevant documentation gathered through the Investigative Procedure regardless of whether it was included in the draft Investigative Report (“gathered information”). The review of the draft Investigative Report and gathered information is expected to be done electronically, barring exceptional circumstances, as determined by the Associate Vice-President of Equity, Access & Equal Opportunity (AVP). At the written request of a party, the draft Investigative Report and gathered information may also be shared with their support person/advisor. The draft Investigative Report and the gathered information should not be shared, copied, downloaded, photographed, or circulated in any manner by the parties and/or their support person/advisor.

The Complainant and Respondent will each be given access to the draft Investigative Report and gathered information for ten (10) business days. The Parties will have the option (but are not required) to provide written comments regarding the draft Investigative Report and the gathered information within that ten (10) business days period. Those comments should contain a Party’s substantive comments on the content of the draft Investigative Report and gathered materials.

All submitted comments should be written by the Parties. Submissions by third parties, such as friends, family, advisors or attorneys will not be considered. Only comments to the draft Investigative Report that are submitted by a Party in writing to the Investigator within the ten (10) business day period will be considered in the Formal Complaint Process.

All information relevant to the Formal Complaint should be submitted by the Parties to the Investigator prior to the Investigative Report Review period. The review period is not an appropriate time for the submission of new, substantive information. All available, relevant information that was known and available to a Party but was not shared during the Investigative Procedure will be presumptively inadmissible in the subsequent Formal Resolution Process or Title IX Grievance Process, as applicable. A Party seeking to submit substantive information not previously disclosed in the Investigation will need to provide a written explanation as to why this information was not submitted earlier. The Investigator, in consultation with the AVP, has the discretion to decide whether such new information will be included in the Final Investigative Report.

After receipt of the comments from the Parties (if any), the Investigator, in consultation with the AVP, will address those comments as they deem appropriate, at their discretion. The Investigator has the option to engage in further investigation if the Investigator deems it necessary to review any information included by a Party through their written comments. Any new information submitted by a Party will be shared with the other Party for review and comment.

Based on the submitted comments from the Parties and the results of any additional investigation, the Investigator will create the Final Investigative Report. The Investigator may include or address any comments submitted by the Parties in that Final Investigative Report or create an addendum to the report to address any comments, at their discretion. Once the Final Investigative Report has been created, the Complainant and Respondent will each be given access to the report for ten (10) business days, but there will be no additional opportunity to provide comments. At the written request of a Party, the Final Investigative Report may also be shared with their support person/advisor. The Final Investigative Report should not be shared, copied, downloaded, photographed, or circulated in any manner by the Parties and/or their support person/advisor. Once the Final Investigative Report has been completed and it has been shared with the parties, the Investigative Procedure will be closed.

I. Resolution of Formal Administrative Complaints

When the College initiates a Formal Administrative Complaint, the College acts in lieu of a complainant in the Process. The Administrative Formal Complaint will follow the processes outlined in the Formal Complaint Process, but without a Complainant. The Impacted Party who experienced the alleged conduct will be the Impacted Witness in an Administrative Formal Complaint. As an Impacted Witness, that individual will typically not have the option to review and comment on the draft Investigative Report, the exhibits to that report or the gathered information. At the discretion of the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee), limited information may be shared with the Impacted Witness as deemed appropriate. Due to privacy considerations, the Impacted Witness will typically not receive written notification of the outcome of any Process or information about any assigned sanctions but may be generally notified of the outcome of the Process at the discretion of the AVP. For Administrative Formal Complaints involving alleged Title IX Sexual Harassment or Sexual Violence under the Policy, the Impacted Witness may still have the rights of a party to the complaint, as decided at the discretion of the AVP.

VII. Process Determination/Dismissal

At the conclusion of the Investigative Procedure, the Associate Vice-President of Equity, Access & Equal Opportunity (or their designee) (AVP) will make a determination regarding whether the final adjudication of the Formal Complaint will be made through the Formal Resolution Process (Non-Title IX) (below) or the Title IX Grievance Process. The Formal Resolution Process will be used when the Formal Complaint contains allegations of conduct that occurred before August 14, 2020 and/or that falls within a provision of the Policy Against Discrimination, Harassment & Sexual Violence (Policy) outside of Title IX Sexual Harassment or Title IX Sexual Violence. If the Formal Complaint contains allegations that fall within the Policy definition of Title IX Sexual Harassment (III, B, 1) or Title IX Sexual Violence Policy (Section III, D), the AVP will conduct an analysis of whether the alleged conduct occurred after August 14, 2020 and meets the other jurisdictional requirements under the Title IX Grievance Process.¹² If those requirements are met, then the allegations in the Formal Complaint will be adjudicated through the Title IX Grievance Process. If not, pursuant to Title IX requirements, the allegations of Title IX Sexual Harassment/Title IX Sexual Violence will be dismissed and both parties will be notified of that dismissal in writing. The AVP also has the discretion to dismiss any allegations of Title IX Sexual Harassment/Title IX Sexual Violence before the conclusion of the Investigative Procedure if it becomes apparent that the incident occurred before August 14, 2020 or that the three jurisdictional requirements cannot be met. If the allegations under Title IX Sexual Harassment/Title IX Sexual Violence are dismissed, the AVP will determine if the Formal Complaint can be adjudicated through the Formal Resolution Process, under another section of the Policy.

The AVP may also, at their discretion, dismiss any allegations of Title IX Sexual Harassment/Title IX Sexual Violence in the Formal Complaint if (1) the Complainant submits a request in writing to withdraw all or part of the Formal Complaint, (2) the Respondent is no longer enrolled or employed by the College or (3) there are specific circumstances that prevent the College from gathering evidence sufficient to make a finding on the Formal Complaint. If a Formal Complaint is dismissed because a Respondent leaves the College as a student or employee while a Formal Complaint is pending, the College has the discretion to bar the Respondent from College property and/or events, and/or to make the Respondent ineligible to re-enroll or for rehire, either temporarily or permanently. The College will also add a transcript notation to the transcript of a student Respondent who leaves before a process has been completed (see below for more information). To the extent possible, and at the request of the Complainant or Impacted Witness, the College will strive to complete all investigations into allegations of Sexual Violence, notwithstanding the departure of the Respondent from the institution, to the best of its ability.

If the Formal Complaint cannot be adjudicated under the Title IX Grievance Process, the AVP will determine whether the remaining allegation(s) in the Formal Complaint may constitute a violation of the Policy (or any other College policy), outside Title IX Sexual Harassment/Title IX Sexual Violence. If other provisions of the Policy may have been violated by the alleged conduct outside of Title IX Sexual Harassment/Title IX Sexual Violence, then the Formal Complaint will be referred to the Formal Resolution Process (Non-Title IX) for adjudication. If another College policy may have been violated by the alleged conduct, the matter may be referred to the appropriate process.

VIII. Formal Resolution Process (Non-Title IX)

The Formal Resolution Process involves a review of the Final Investigative Report and any supporting materials by the decision-makers who will determine if the Respondent violated the Policy Against Discrimination, Harassment & Sexual Violence (Policy) based on the conduct alleged in the Notice of Complaint (as amended). The process for that determination and for assigning sanctions depends on whether the Respondent is a student or an employee (staff or faculty). In situations where the Respondent is both a student and an employee of the College, the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee), at their discretion, will decide which process will govern based on the role the Respondent was serving in at the time of the alleged incident.

A. Student Formal Resolution Process

Once the Investigative Procedure has closed, the AVP will submit the Final Investigative Report and supporting documentation referenced in the report to a Decision-Making Panel of three College employees (staff or faculty) who have been trained regarding the process and in the resolution of issues of discrimination, harassment and sexual violence. The three panel members will be chosen at the sole discretion of the AVP, and their names will be communicated to the Complainant and Respondent once the Process Determination has been made. If either the Complainant or Respondent believes there is a possible conflict of interest with any of the Decision-Making Panel members, it must be communicated to the AVP immediately, and no later than three (3) business days after notice of the names of the Panel members. The AVP then has the discretion to assign a different member to that Panel. Once the Final Investigative Report has been submitted to the Decision-Making Panel for consideration, there will be no further opportunity to raise potential conflicts of interest with Panel members.

The AVP will consult with the Decision-Making Panel on questions about the Policy Against Discrimination, Harassment & Sexual Violence (Policy), the Formal Complaint Process and/or Formal Resolution Process as they consider the Final Investigative Report and supporting documentation. The Decision-Making Panel can also submit questions to the Investigator as they deem necessary. However, the decision regarding whether the Policy was violated will be made only by the Decision-Making Panel.

The Decision-Making Panel will review the Final Investigative Report and any supporting documentation referenced in the report to determine whether they believe the Respondent is responsible for violating the Policy.¹³ The decision of the Decision-Making Panel will be made based on the preponderance of the evidence standard -- that is, whether the facts presented in the Final Investigative Report support a finding that it is more likely than not that the Policy was violated. The Decision-Making Panel will base the findings solely on the information presented in the Final Investigative Report and any supporting documentation referenced in the report.

The finding of the Decision-Making Panel will be made by a majority. While the Decision-Making Panel is solely responsible for making the finding, the AVP will assist the Panel in drafting the language of their outcome. The written findings by the Panel will outline any factual determinations made and the rationale used to reach the finding(s). Once the Decision-Making Panel has finalized their written findings, they will refer the finding to the AVP. The AVP will then refer the finding to the Office of Community Standards who will issue the Notice of Outcome in the pending matter.

If the Respondent is found Not Responsible for violating the Policy, the Complainant and Respondent will both be notified by the Office of Community Standards in writing of the outcome, the option to appeal, an explanation of when that outcome becomes final and the findings from the Decision-Making Panel. The Notice of Outcome will be issued to the parties within seven (7) business days after the findings have been made by the Decision-Making Panel. In the case of an Administrative Complaint, an Impacted Witness may receive some information about the outcome at the discretion of the AVP.

If the Respondent is found Responsible for a violation of the Policy, the Office of Community Standards will determine and assign the appropriate sanctions or other outcomes based on the findings of the Decision-Making Panel, in consultation with other offices as appropriate and at their discretion. The determination regarding sanctions will include a consideration of any other disciplinary history the Respondent may have with the College as outlined in the Code of Community Standards. Sanctions for a Responsible finding may include, but are not limited to, loss of privileges, formal warning, disciplinary probation, educational sanctions, suspension, removal from the College and any other sanction noted in the Code of Community Standards. Both the Complainant and Respondent will be notified in writing of the Notice of Outcome which includes the assigned sanction, the option to appeal, an explanation of when that outcome becomes final and the findings from the Decision-Making Panel. The Notice of Outcome will be issued to the parties within seven (7) business days of the assignment of the sanction. Due to privacy consideration, the Complainant may not be notified of the assigned sanctions, unless they relate to the Complainant (such as a No Contact Order as the sanction). In the case of an Administrative Complaint, an Impacted Witness may receive some information about the outcome at the discretion of the AVP. Upon written request, the AVP has the discretion to again give the Respondent/Complainant access to the Final Investigative Report and/or any supporting documentation and/or gathered information after the Notice of Outcome has been issued, at the AVP's discretion.

B. Employee Formal Resolution Process

Once the Investigative Procedure has closed, the AVP will submit the Final Investigative Report and any supporting documentation referenced in the report to Decision-Makers. The Decision-Makers will consist of two individuals, which includes the Respondent’s supervisor or the Provost (or their designee) and a representative from Human Resources. The Decision-Makers will receive training on the process and on the resolution of issues of discrimination, harassment and sexual violence. The names of the Decision-Makers will be communicated to the Complainant and Respondent once the Process Determination has been made. If either the Complainant or Respondent believes there is a possible conflict of interest with any of the Decision-Makers, it must be communicated to the AVP immediately, and no later than three (3) business days after notice of the names of the Panel members. The AVP then has the discretion to assign a different Decision-Maker if necessary. Once the Final Investigative Report has been submitted to the Decision-Makers for consideration, there will be no further opportunity to raise potential conflicts of interest.

The Decision-Makers will review the Final Investigative Report and any supporting documentation referenced in the report and determine whether they believe the Respondent is responsible for violating the Policy.¹⁴ The decision of the Decision-Makers will be made based on the preponderance of the evidence standard -- that is, whether the facts presented in the Final Investigative Report support a finding that it is more likely than not that the Policy was violated. The Decision-Makers will base their findings solely on the information presented in the Final Investigative Report and any supporting documentation referenced in the report.

The AVP will consult with the Decision-Makers on questions about the Policy, the Formal Complaint Process and/or the Formal Resolution Process as they consider the Final Investigative Report and supporting documentation. The Decision-Makers may also submit questions to the Investigator as they deem necessary. However, the decision regarding whether the Policy was violated will be made only by the Decision-Makers. While the Decision-Making Panel is solely responsible for making the finding, the AVP will assist the Panel in drafting their written findings. The written findings by the Decision-Makers will outline any factual determinations made and the rationale used to reach the finding(s).

If the Respondent is found Not Responsible for violating the Policy, the Respondent will be notified by the Decision-Makers in writing of the outcome, the option to appeal and an explanation of when that outcome becomes final. The written outcome will include the findings from the Decision-Makers. The written Notice of Outcome will be issued to the Respondent (and Complainant as appropriate as determined by the AVP) within seven (7) business days after the finding has been made. In the case of an Administrative Complaint, an Impacted Witness may receive some information about the outcome at the discretion of the AVP.

If the Respondent is found Responsible for a violation of the Policy, the Decision-Makers will also decide the appropriate sanctions or remedies based on that finding. The determination regarding sanctions will include a consideration of any other disciplinary history the Respondent may have with the College. Sanctions for a Responsible finding may include, but are not limited to, warnings (verbal or written), censures, training or other educational responses, final warnings, reassignment, demotions, suspensions, and termination. The Respondent will be notified by the Decision-Makers, in writing, of the Notice of Outcome which includes the assigned sanction, the option to appeal, an explanation of when that outcome becomes final and the findings from the Decision-Makers. Upon written request, the AVP has the discretion to again give the Respondent access to the Final Investigative Report and/or any supporting documentation and/or gathered information once the Notice of Outcome has been issued, at the AVP's discretion. If there is a Complainant, they may also be notified by Human Resources or the AVP of the outcome, the option to appeal, an explanation of when the outcome becomes final and the findings from the Decision-Makers, at the AVP's discretion. Due to privacy consideration, the Complainant will not be notified of the assigned sanctions, unless they relate to the Complainant (such as a No Contact Order as the sanction). In the case of an Administrative Complaint, an Impacted Witness may receive some information about the outcome at the discretion of the AVP.

For employees (faculty and staff), the College reserves the right to issue disciplinary action with respect to conduct that it deems inappropriate regardless of whether it rises to the level of a violation of the Policy or the law.

C. Appeals

Both the Complainant and Respondent (student, staff or faculty) are entitled to one appeal of the outcome to the Formal Complaint through the Formal Resolution Process.¹⁵ The filing of an appeal will not stay imposition of any assigned sanction. If the Complainant or Respondent did not participate in the Investigative Procedure, as determined by the Office of Equal Opportunity (OEO), that Party will not have a right to appeal the final outcome. An appeal must be submitted in writing to OEO (oeo [at] emerson.edu (oeo[at]emerson[dot]edu)) within seven (7) business days of the receipt of the written outcome. The individual who files an appeal is known as the appellant. The appellant must submit an Appeal Form with their appeal which is available from OEO. If an appeal is not received within seven (7) business days, the outcome will be considered final and the Formal Resolution Process will be closed.

An appeal can only be submitted by the Complainant or Respondent in writing. Appeals submitted by third parties (e.g. friends, family, attorneys) will not be considered.

There are only two grounds on which an appeal can be filed – procedural error and the availability of new information. The written appeal must specifically state under which of these two grounds the appeal is being filed and how the requirements for that basis (noted below) are met by the appeal.

The appeal is not a new fact-finding process. Although a Complainant/Respondent may disagree with the finding or the sanction, that alone is not a basis for appeal. Factual disputes are not a basis for appeal. Appeals that do not comply with these requirements, including failing to state proper grounds for appeal or being untimely, will not be considered, as determined by the Associate Vice-President of Equity, Access & Equal Opportunity (AVP) (or their designee) at their discretion. If an appeal will not be considered, and the seven (7) days to appeal has passed, the Parties will be notified in writing that the outcome is considered final and the Formal Complaint Process will be closed.

If the appeal will be heard, the non-appealing party will be given a copy of the appeal and will have an opportunity to respond to the assertions made by the appellant, in writing, within seven (7) business days after receipt. The non-appealing party may also request, in writing, access again to the Final Investigative Report, supporting documentation, and/or gathered information for purposes of responding to the appeal. Submissions after the seven (7) business day period will not be considered, as determined by the AVP (or their designee).

The two grounds for appeal are:

Procedural Error: The appellant alleges that (i) the procedural requirements of the Formal Complaint Process were not followed, and (ii) that deviation from the process had an adverse impact on the outcome of the Formal Complaint against the appellant.
New Information: The appellant alleges that, subsequent to the issuing of the Final Investigative Report, new information became available which could have impacted the outcome of the Formal Complaint. The appellant must: (i) present the new information; (ii) show why it was unavailable prior to completion of the Final Investigative Report; and (iii) show that the new information could have altered the outcome of the complaint. If new information is presented, the Appeal Panel has the option to ask the Investigator to reopen the Investigation regarding that information.

Appeals that are timely and state proper grounds for appeal, as determined by the AVP (or their designee), will be decided by an Appeals Panel of three employees (staff or faculty) who have been trained regarding the process, the resolution of issues of discrimination, harassment and sexual violence and about how to decide appeals. The members of the Appeals Panel will include different individuals from those who served as the Decision-Makers or the Decision-Making Panel. The three Appeals Panel members will be chosen at the sole discretion of the AVP (or their designee), who will communicate those names to the appellant and the non-appealing party (as applicable). If either party believes there is a possible conflict of interest with any of the Panel members, they must communicate that to the AVP immediately, and no later than three (3) business days after notice of the names of the Panel members. The AVP then has the discretion to assign a different member to the Appeals Panel. Once the appeal has been submitted to the Appeals Panel for consideration, there will be no further opportunity to raise potential conflicts of interest.

In reviewing an appeal, the Appeals Panel will be given the Final Investigative Report and any supporting documentation referenced therein, the written outcome, the appeal submission and any response, and the results of any additional investigation requested, as applicable. The Appeals Panel will make its finding based on their review of these documents. The AVP will consult with the Appeals Panel on questions about the Policy Against Discrimination, Harassment & Sexual Violence, the Formal Complaint Process, the Formal Resolution Process, and/or the Appeal process as they consider the appeal. The Appeals Panel may also submit questions to or request information from the Investigator or the Parties if needed to make their determination on the appeal.

The Appeals Panel has the option to Dismiss the appeal by finding that the requirements for the appeal grounds chosen have not been met. The Appeals Panel also has the option to Grant the appeal when it finds the requirements of the appeals ground have been met.

If the Appeals Panel grants the appeal for a matter involving a student Respondent, the matter will be referred to the Office of Community Standards who will decide whether to uphold or modify the final outcome on the complaint based on the findings of the Appeals Panel, and in consultation with the original Decision-Making Panel, as appropriate. The AVP may consult with the Office of Community Standards and the original Decision-Making Panel as necessary throughout the appeal process. The Office of Community Standard will then issue a Notice of Outcome of Appeal with the Appeals Panel’s finding and the decision on whether to uphold or modify the outcome. If the Appeals Panel dismisses the appeal for a student appellant, the Office of Community Standard will issue a Notice of Outcome of Appeal with the Appeals Panel’s finding.

If the Appeals Panel grants the appeal for a matter involving an employee Respondent, the matter will be referred to the Chief Human Resources Officer (or their designee) and/or the Provost (or their designee) who will decide whether to uphold or modify the final outcome on the complaint based on the findings of the Appeals Panel, and in consultation with the Decision-Makers, as appropriate. If the Appeals Panel dismisses the appeal for an employee appellant, the Chief Human Resources Officer and/or the Provost will issue a Notice of Outcome of Appeal with the Appeals Panel’s finding. The parties will be notified in writing of the Notice of Outcome of Appeal. Certain employees (faculty and staff) may have additional appeal rights outside the Formal Complaint Process.

Other Considerations

A. Amnesty/Help Seeking Policy

The College recognizes that someone may be concerned about reporting discrimination, harassment or sexual violence believing that other behavior they were engaged in might have violated another Emerson policy and could subject them to disciplinary action. While the College does not condone any type of policy violation, when incidents of discrimination, harassment or sexual violence are reported, witnesses and parties should be assured that the focus is on the reported behavior and safety, not on other infractions such as someone using alcohol or drugs at the time. In situations involving allegations of discrimination, harassment or sexual violence, the College will, to the extent allowed by applicable laws and College policy, seek to make the allegations of discrimination, harassment or sexual violence the focus of any investigation or disciplinary action. In such circumstances, the College may give amnesty regarding other minor conduct violations such as:

underage drinking or other alcohol infractions
individual drug use

The decision regarding whether to grant amnesty will be made by the Office of Equal Opportunity (OEO), in consultation with the Office of Community Standards, Human Resources, and/or the Provost (or their designee), as applicable. Please see the Seeking Help Policy (formerly the Good Samaritan Policy) for additional information.

B. Right to Investigate and Decide Other Conduct Violations

OEO has the discretion to pursue information regarding any other alleged violations of College Policy that may be identified through the Formal Complaint Process. The Investigator will not be restricted to only investigating the violations alleged in the Formal Complaint, if other conduct violations are discovered in the course of the Investigative Procedure. When additional conduct concerns have been identified, OEO will consult with the Office of Community Standards, Human Resources, or the Provost (or their designee), as applicable, to decide if and how such allegations will be addressed. OEO has the discretion to address the additional conduct that may violate another College policy through any pending Formal Complaint Process. If this conduct will be addressed through the Formal Resolution Process, the Parties will be notified through an Amended Notice of Formal Complaint. If the alleged conduct may violate another College policy, that conduct may also be referred to another process for resolution.

C. Criminal Conduct

Some of the behaviors addressed by the Policy Against Discrimination, Harassment & Sexual Violence (Policy) may also constitute violations of criminal law. The College will conduct its own investigation and adjudication of conduct alleged in Formal Complaint Process, regardless of whether the alleged conduct is also being pursued through the civil or criminal justice system. The College will comply with any law enforcement requests for cooperation regarding its Investigative Procedure, Formal Resolution Process, or Title IX Grievance Process. At times, that cooperation may require the College to temporarily suspend its Process while law enforcement gathers information. The College will promptly resume the Process as soon as it is notified that doing so would not impede or interfere with any law enforcement activities. The College reserves the right to restrict a community member’s access to the campus if criminal charges are filed against that individual.

D. Family Notification/Communication

The College views employees (faculty and staff) and students of legal age as adults. As such, parent(s), guardian(s) and/or spouse(s) will not typically be notified when a Formal Complaint is filed against or by a student or employee under the Process. Students and employees are encouraged to inform their family if they are involved in a Formal Complaint if that may be a source of support. All communication regarding the Process will only be directed to the student or employee involved and not to third parties, including family members, support persons/advisors, or attorneys. Parent(s), guardian(s) and/or spouse(s) of students or employees with questions about a pending complaint should understand any exceptions to these communication guidelines will only be made by the College in compliance with the Family Educational Rights and Privacy Act (FERPA) and applicable employee privacy rules.

E. Transcript Notations

It is the College’s Policy to make notations on a student’s transcript when certain sanctions are issued as part of a student conduct process.¹⁶ This transcript notation will not describe the violation or incident that resulted in the sanction, just the sanction issued. If a student leaves Emerson or withdraws from the College with a Formal Complaint with the Office of Equal Opportunity pending under this Formal Complaint Process, the College will note the following on the student’s transcript:

“Voluntarily withdrew dd/mm/yy, with College disciplinary charges pending. This notation does not constitute a finding or admission of responsibility.”

This notation will remain on the student’s transcript until the pending Formal Complaint is resolved under the Formal Complaint Process. In situations where a matter is resolved through the Informal Resolution Process, no transcript notation will be made, unless the parties agree otherwise. For more information, please see the Community Standards policy on transcript notations.

F. Maintenance of Records

After the Parties have been notified of the final written outcome of a Formal Complaint and any appeals have been decided, or the matter has been resolved through an Informal Resolution Agreement, the Formal Complaint Process will be considered closed. At the close of the process, the Office of Equal Opportunity (OEO) will maintain its investigative files which will include, but is not limited to, the Final Investigative Report and any supporting documentation, the information gathered in the Investigative Procedure, the final written outcome, any appeal submission and any response, the results of any additional investigation, any Informal Resolution Agreements, and the Notice of Outcome of Appeal, if any. Some of this information may also be kept in an individual’s student conduct records or personnel file as appropriate and in accordance with the record retention policies or practices of the applicable department. All other documentation, regarding the complaint will be destroyed after the close of the Formal Complaint Process, including investigator notes and any recordings that were later transcribed (the transcript will be retained).

Footnotes

(1) The Associate Vice-President for Equity, Access & Equal Opportunity serves as the Title IX and ADA/Section 504 Coordinator for Emerson College (sonia_jurado [at] emerson.edu (sonia_jurado[at]emerson[dot]edu) 617-824-8999).

(2) The term student includes any person enrolled in any (undergraduate or graduate) academic program or course at Emerson College, including Emerson-sponsored distance, international, or internet-based courses, up to and including the student’s commencement day or the last day of evaluation for non-degree students.

(3) “Employees” refers to anyone employed by Emerson in any capacity including faculty and staff.

(4) Students enrolled in the Global BFA program at Paris College of Art (PCA) may be subject to the policies and processes of PCA for conduct that occurred while participating in the program at PCA.

(5) Employees subject to a collective-bargaining agreement may have additional rights with respect to the role of the support person/advisor.

(6) Pursuant to 34 CFR Part 106, § 106.8.

(7) This written update will usually be done via email, at the discretion of the Investigator.

(8) For students see Code of Community Standards, Failure to Comply. Employees are expected to cooperate with administrators as part of their employment responsibilities.

(9) For students see Code of Community Standards, False Identification or Information. For employees, see the Conduct Standards and Corrective Action Policy.

(10) Pursuant to 34 CFR Part 106, § 106.8.

(11) Pursuant to 34 CFR Part 106, § 106.8.

(12) In addition to falling under the definition of Title IX Sexual Harassment and/or Title IX Sexual Violence and occurring after August 14, 2020, the alleged conduct must meet three jurisdictional requirements to be subject to the Title IX Grievance Process. The conduct must 1) have occurred in the United States; 2) have occurred in a College program or activity; and 3) the complainant must be participating in or attempting to participate in a College educational program or activity. For more information about these jurisdictional requirements, please see the Title IX Grievance Process.

(13) The Decision-Making Panel will not be given access to the gathered materials from the Investigative Procedure that was not included in the Final Investigative Report and supporting materials.

(14) The Decision-Makers will not be given access to the gathered materials from the Investigative Procedure that was not included in the Final Investigative Report and supporting materials.

(15) An Impacted Witness in an Administrative Complaint does not have appeal rights under this process.

(16) For more information on which sanctions will be noted on a transcript, see the "Sanctions" section under the Student Conduct Process.

Formal Complaint Process: Policy Against Discrimination, Harassment & Sexual Violence