Sex Discrimination and Sexual Misconduct Policy (Employee or Third Party Respondent)

Revised: August 14, 2020
Updated: August, 2021

I. Purpose and Notice of Non-Discrimination

It is the policy of Mitchell Hamline School of Law (“School”) to maintain an environment free from discrimination, including but not limited to when misconduct is based on actual or perceived race, color, creed, religion, national origin, sex, gender, gender identity, gender expression, marital status, familial (or parental) status, disability, status with regard to public assistance, sexual orientation, age, family care leave status or veteran status, membership or activity in a local human or civil rights commission, or any other protected class defined by law.  Consistent with this commitment, the School prohibits Sexual Misconduct^[1], i.e., misconduct based on actual or perceived sex, gender, gender identity, sexual orientation, and gender expression.^[2]  The School prohibits all forms of Sexual Misconduct against Employees, Students, and Third Parties.  This Policy concerns incidents when Employees or Third Parties are accused of Sexual Misconduct.  For other situations, please see the following policies:

• Sex Discrimination and Sexual Misconduct Policy (Student Respondent)
• Title IX Sexual Harassment Policy (Employee or Third Party Respondent)
• Title IX Sexual Harassment Policy (Student Respondent)
• Non-Discrimination and Non-Harassment Policy
• Problematic Consensual Romantic Relationship Policy^[3]

The School prohibits Retaliation associated with incidents reported or investigated under this Policy.  Complaints of such Retaliation will be investigated under this Policy.

The School is committed to investigating, resolving, and preventing all Complaints of Sexual Misconduct—whether formal or informal, verbal, or written—including when those acts are based on someone’s actual or perceived protected class status, and the School will discipline or take appropriate action against any Employee or—when applicable—Third Party who violates this Policy.^[4]  The School will investigate and, when appropriate, will conduct prompt, fair, and impartial investigation proceedings for Complaints of Sexual Misconduct.

If a School investigation reveals that Sexual Misconduct created a hostile education or employment environment, the School will take prompt and effective steps to end the misconduct, eliminate the hostile environment, prevent the misconduct from recurring and, when appropriate, remedy the effects of the hostile environment.

Any Student or Employee who needs a reasonable accommodation to make or respond to a Complaint, or engage in any other activity detailed in this Policy, may contact the Title IX Coordinator or a Deputy Title IX Coordinator to request an accommodation.

Any Employee or Third Party who is found to have violated this Policy is subject to disciplinary or corrective action, up to and including termination or discontinuation of relationship.

II. Scope and Applicability

This Policy applies to incidents of Sexual Misconduct that occur in all of the education (degree and non-degree) and employment programs of the School and will be enforced on School property, including remote locations such as the Mobile Law Office, and in School-sponsored programs held in locations away from the St. Paul Campus (including study abroad programs), and other School-hosted social functions or events sponsored by the School but held at other locations. The policy also applies to conduct that occurs in certain circumstances as defined in this Policy in a non-campus building or on non-campus property or on public property, including School-sanctioned Student organization events. This Policy also applies to any off-campus conduct that causes or threatens to cause a substantial and material disruption at the School, or interferes with the rights of Students and Employees to be free from a hostile education or employment environment taking into consideration the totality of the circumstances on and off Campus.

Finally, this Policy applies to instances of sexual harassment, sexual assault, domestic violence, dating violence, and stalking that take place in School-sponsored programs outside of the United States (i.e., study abroad programs).

Generally, the specific procedures for investigating and responding to a Complaint differ based on the nature of the parties’ relationship to the School.

Complainant	Respondent	Applicable Policy
Student	Student[5]	Sex Discrimination and Sexual Misconduct Policy (Student Respondent)
Employee or Third Party	Student	Sex Discrimination and Sexual Misconduct Policy (Student Respondent)
Employee or Third Party	Employee or Third Party	Sex Discrimination and Sexual Misconduct Policy (Employee or Third-Party Respondent)
Student	Employee or Third Party	Sex Discrimination and Sexual Misconduct Policy (Employee or Third-Party Respondent)[6]

This Policy will also address the reporting and subsequent investigation process for reports of sexual harassment, sexual assault, stalking, dating violence, and domestic violence that take place outside of the United States.

III. Definitions

Prohibited Conduct

Prohibited Conduct can occur between individuals of the same or different genders.

A. Sexual Misconduct, for purposes of this Policy, includes a variety of prohibited behaviors, including but not limited to Sexual Exploitation, Sexual Intimidation, Sex Discrimination, and any other non-consensual conduct of a sexual nature.^[7] Some occurrences of Sexual Misconduct may not be sexual in nature. Similarly, Sexual Exploitation constitutes Sexual Misconduct and may apply to situations where the sexual conduct itself was consensual, but a related conduct—which was not on its own sexual—nonetheless constitutes Sexual Exploitation (e.g., videotaping or allowing friends to watch a consensual sexual activity without the Consent of the other person). Examples of Sexual Misconduct include:

• Sexual Exploitation is taking non-consensual sexual advantage of another person. For example, Sexual Exploitation includes taking non-consensual video and/or audio recordings, photographs, or images of an individual while that individual is engaged in intimate or sexual utterances, sounds, or activities; voyeurism; possession of child pornography; prostituting another person; exposing one’s genitals in non-consensual circumstances; distributing intimate or sexual information about a person without their Consent; or knowingly transmitting a sexually transmitted disease to another person.
• Sexual Intimidation involves threatening another person that the perpetrator will commit a sex act against them or engaging in indecent exposure.
• Sex Discrimination occurs when an individual is treated adversely because of that person’s sex, gender, sexual orientation, gender identity, or gender expression, or is subject to any other form of Sexual Misconduct. Some examples of conduct that may constitute Sex Discrimination include:
  • Treating an individual adversely in any other respect because of their sex, gender, sexual orientation, gender identity, or gender expression;
  • Using epithets, slurs, threatening or intimidating acts, including written or graphic material directed to an individual because of their sex, gender, sexual orientation, gender identity, or gender expression; or
  • Written, verbal or physical acts directed to an individual because of their sex, gender, sexual orientation, gender identity, or gender expression that purport to be jokes or pranks.

B. Retaliation means an adverse action taken against a Complainant, or a person who files a Complaint, and/or otherwise participates in an investigation or proceeding under this Policy, including Third-Parties.

Other Important Definitions

C. Complainant means an individual who is alleged to be the victim of conduct that could constitute Sexual Misconduct.

D. Complaint means any report of conduct that is in violation of this Policy.

E. Respondent means the person who has been accused of conduct prohibited by this Policy.

F. Employee, for purposes of this Policy, means all non-Student Employees of the School, including faculty, staff, adjuncts, and administrators.

G. Third Party, for purposes of this Policy, includes certain third-party affiliates, including volunteers, vendors, visitors, and independent contractors.

H. Student, for purposes of this Policy, means any individuals taking classes at the school, including all degree and non-degree Students. For purposes of this policy, “Student” does not include full-time Employees of the School who are also taking classes at the School (those individuals are considered “Employees”).

I. Campus means the entire physical grounds of the School, remote locations such as the Mobile Law Office, and facilities away from the main Campus where School-sponsored programs (i.e., Student abroad programs) are held.

J. Campus Authorities means the security department at the School, as well as the Dean of Students, the Title IX Coordinator, the Deputy Title IX Coordinators, the Vice Dean, Academic and Faculty Affairs, and the Dean and President of the School.

K. Consent is defined by Minnesota law (Minn. Stat. § 609.341, subd. 4) and means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the Complainant or that the Complainant failed to resist a particular sexual act. A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act. Corroboration of the Complainant’s testimony is not required to show lack of consent.  Under Minnesota law, mentally incapacitated means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

L. Title IX Coordinator means the person who is primarily responsible for addressing issues of sex-based Discrimination, including coordinating the School’s efforts to comply with its obligations under Title IX and its governing regulations. The School’s Title IX Coordinator is Christine Szaj.

M. Deputy Title IX Coordinators means the persons, in addition to the Title IX Coordinator, responsible for Complaints under this Policy. The School’s Deputy Title IX Coordinator is Lynn LeMoine (651-290-7668). In cases where the Complainant or Respondent is a School Employee, Michael Freer (651-290-6322) may be the Deputy Title IX Coordinator.

IV. Reporting Procedures for Incidents of Sexual Misconduct

Properly reporting Complaints is of vital importance.  If Complaints are improperly reported—i.e., reported to the wrong individual, the Complainant risks the possibility that the Complaint will not come to the attention of the appropriate person, and therefore not be acted upon.

As necessary, the School reserves the right to initiate a Complaint and to initiate conduct proceedings without a formal Complaint by the Complainant.

A. Forms of Reporting

1. Reporting Directly to a School Administrator Identified Below

Anyone who believes that they have been the victim of Sexual Misconduct or that they have observed Sexual Misconduct,  may report the conduct to any of the following administrators:

Christine Szaj, Title IX Coordinator; Vice President, Institutional Management
875 Summit Ave, St. Paul, MN 55105
christine.szaj@mitchellhamline.edu

Lynn LeMoine, Deputy Title IX Coordinator; Dean of Students
875 Summit Ave, St. Paul, MN 55105
651-290-7668
lynn.lemoine@mitchellhamline.edu

Michael Freer^[8], Deputy Title IX Coordinator; Director, Human Resources
875 Summit Ave, St. Paul, MN 55105
651-290-6322
michael.freer@mitchellhamline.edu

Jim Hilbert, Vice Dean, Academic and Faculty Affairs
875 Summit Ave, St. Paul, MN 55105
651-290-7507
jim.hilbert@mitchellhamline.edu

Anthony Niedwiecki, Dean and President
875 Summit Ave, St. Paul, MN 55105
651-290-7510
anthony.niedwiecki@mitchellhamline.edu

Any Employee who receives a report or witnesses conduct that involves Sexual Misconduct regarding a Student is required to immediately report it to the Title IX Coordinator or a Deputy Title IX Coordinator.

2. Complaints Regarding Conduct of the President and Dean

Any Complaints involving conduct of the President and Dean should immediately be reported to an Officer of the Board of Trustees, whose contact information can be found on the Board of Trustees web page.

3. Online Reporting

Reports can be made online via the Sexual Misconduct/Sexual Harassment Reporting Form..  All reports will be forwarded to the Title IX Coordinator.

Reports may be made anonymously; however, the reporter is encouraged to provide as much information as possible.  Because of the nature of anonymous reports, the School may be limited in its ability to investigate and respond to an anonymous report.

4. Notifying Law Enforcement

Any individual who believes they have been the victim of Sexual Misconduct also retains the right to notify—or decline to notify—law enforcement authorities.  In some cases, unless prohibited by law, an individual may pursue criminal action and a School internal Complaint concurrently.  In certain circumstances, the School is prohibited from waiting for a criminal case to conclude before proceeding in its own internal investigation.

5. Additional Resources and Contact Information

Appendix A includes a list of confidential School resources; county resources regarding orders of protection, no contact orders, or restraining orders; and additional external resources.

Making a Complaint under this Policy does not preclude a Complainant from contacting any other resource, including but not limited to those listed in Appendix A.

B. Recurrence

If the Sexual Misconduct reoccurs, the recurrence should immediately be reported according to the Reporting Procedure above.

C. Reports of Crimes Due to Protected Status

If anyone believes that they have been a victim of a crime, including larceny-theft, simple assault, intimidation, and destruction, damage, or vandalism of property, and/or any other crime involving bodily injury to any person, in which the Complainant believes they were selected because of their actual or perceived sex, gender, sexual orientation, gender identity, or gender expression, they should, if desired, report the incident to the Campus Authorities or local police agencies.

D. Prohibition Against False Reports

The willful filing of a false report is a violation of this Policy.

E. Statement on Confidentiality

Although confidentiality cannot be assured, investigations will be conducted with sensitivity to confidential issues and investigative information will be communicated as appropriate to those with a need to know, pursuant to applicable law and the need to conduct an investigation and take any needed action.

V. Investigation and Resolution

Upon receipt of a Complaint, the School will notify and, when appropriate, obtain consent from the Complainant to promptly undertake or authorize a fair and impartial investigation.  Complainants and Respondents may choose to participate or decline to participate in the investigation.  That said, participation of these parties is not mandatory for the investigation to proceed.

The School, at its discretion, may take immediate steps, based on the severity of the allegations, to protect the parties involved in the Complaint process pending completion of an investigation.  If the School conducts an individualized safety and risk analysis and determines that there is an immediate threat to the physical health or safety of any Student, Employee, or other person arising from the allegations and that such immediate threat justifies removal, the School retains the right to remove a Respondent from the School’s education program or activity on an emergency basis.   In this instance, the School will provide the Respondent with notice of its decision and an opportunity to challenge the decision immediately following removal.

Before resolution of a Complaint, the School may implement interim actions, including but not limited to changing a Complainant’s work or class schedule; issuing a timely warning if there exists an ongoing threat of danger to the community; providing information about legal options, including but not limited to orders for protection and harassment restraining orders; and notifying appropriate School administration or management personnel.

The investigation will generally be completed within 60 calendar days from receipt of the Complaint.  If the investigation proceeding will be delayed beyond the 60-day goal, the School will provide the participants with written notice of the delay and the reason for the delay.

The investigation may, as appropriate, consist of personal interviews with the Complainant, the reporter (if someone other than the Complainant), the Respondent, and others who may have knowledge of the alleged incident(s) or circumstances giving rise to the Complaint. The investigation may also consist of any other methods and review of documents deemed pertinent by the investigator.

In determining whether alleged conduct constitutes a violation of this policy, the School may consider, among other things, the facts and surrounding circumstances, the nature of the behavior, past incidents or past or continuing patterns of behavior, the relationships between the parties involved, and the context in which the alleged incidents occurred. Whether a particular action or incident constitutes a violation of this Policy requires a determination based on all the facts and surrounding circumstances using a preponderance of the evidence standard.

To ensure the School can gather the information necessary to uphold School policies, each Employee or Student who is requested to participate in a fact finding investigation is required to fully cooperate with the investigator. Unless otherwise directed by the investigator, Students and Employees will be expected to limit their discussion of the matter under investigation to those who need to know the information for the purposes of assisting in the resolution of the Complaint.  Failure to follow these requirements and other directions provided by the investigator may result in corrective action as stated below. Nothing in this paragraph is intended to limit or restrict a Complainant from contacting the police or governmental agencies responsible for the enforcement of any applicable laws.

VI. Actions by the School

Upon completion of the investigation, the investigator(s) will make a finding of facts report to the President and Dean.^[9]

Upon completion of the investigation, the President and Dean or their designee will inform the Complainant and Respondent of the results of the investigation.

If a Complaint is substantiated, the School will take appropriate and effective action depending on the circumstances. Such action may include, but is not limited to, training, counseling, suspension or termination of employment, or other appropriate action. If necessary and if the matter is related to the faculty, a matter may be referred to the appropriate disciplinary authority as required by School policy, the Revised Tenure Code, and any existing faculty agreement.

In appropriate situations, the School will provide written notifications to parties about options for, and available assistance in, changing academic, living, transportation, or working situations, if so requested by the parties and if such accommodations are reasonably available.  The School will provide these options for Complainants regardless of whether they choose to formally report an incident or report an incident to local law enforcement.

Pursuant to applicable law, the School will make timely reports to the Campus community on certain crimes considered to be a threat to other Students and Employees that are reported to Campus Authorities or local law enforcement. These reports will be provided to Students and Employees in a  timely manner, will withhold the name(s) of the victim(s) as confidential, and will aid in the prevention of similar occurrences.

In accordance with applicable law, the School retains the right to issue possible sanctions against individuals who violate this Policy, or engage in protective measures following a final determination. The School reserves the right to issue, among others that may be appropriate, any of the following sanctions in any order in these circumstances depending on the facts:

• No-contact directive
• Restriction of privileges
• Probation
• Written Warning
• Suspension
• Termination
• Discontinuation of Relationship or Association (Third Parties)

VII. Cooperation with Law Enforcement

The School will comply with law enforcement’s request for cooperation and such cooperation may require the School to temporarily suspend the fact-finding aspect of an investigation while the law enforcement agency gathers evidence. The School will promptly resume its investigation as soon as notified by the law enforcement agency that it has completed the evidence gathering process, which typically takes three to ten calendar days, although the delay in the School’s investigation could be longer in certain instances.

The School will implement appropriate interim steps during the law enforcement agency’s investigation period to provide for the safety of the parties and the Campus community and the avoidance of retaliation.

When appropriate or legally obligated, the School may share investigative information with law enforcement.

VIII. Attempted Violations

In most circumstances, the School will treat attempts to commit any of the violations listed in this Policy as if those attempts had been completed.

IX. No Retaliation

There will be no Retaliation against any Complainant of Sexual Misconduct under this Policy, nor against any person who participates in an investigation.  The School will take appropriate action against any Student, Employee, or, when appropriate, Third Party, who retaliates against any person who makes a good-faith report, who testifies, assists, or participates in an investigation, or who testifies, assists or participates in a process relating to the report.  In addition, neither the School, nor any officer, Employee, or agent of the School may retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights to avail themselves of the School’s Complaint procedure under this Policy.

X. Conflict of Interest

If there is a conflict of interest with respect to any party affected by this Policy, appropriate accommodations will be made, such as, but not limited to, appointing or contracting with a Consultant to conduct the investigation, or recusing the person from the process for whom a conflict or potential conflict of interest exists.

XI. Alternative Complaint Procedures

These procedures do not deny the right of any individual to pursue other avenues of recourse which may include, but is not limited to, filing a charge with the United States Department of Education Office for Civil Rights (OCR).  The OCR office for Minnesota is located at:

U.S. Department of Education Office for Civil Rights
Citigroup Center
500 W. Madison Street, Suite 1475
Chicago, IL 60661-4544
Tel: 312-730-1560
TDD: 877-521-2172
Email: OCR.Chicago@ed.gov

XII. Waiver of Drug/Alcohol Violations

The School strongly encourages Students to report instances of Sexual Misconduct. As such, Students who report such information will not be disciplined by the School for any violation of its drug and alcohol policies in which they might have engaged in connection with the reported incident.

XIII. Questions

Please direct any questions to the Title IX Coordinator or a Deputy Title IX Coordinator.

Appendix A. Resources and Contact Information

Confidential School Resources:

Counseling Services 651-290-8656 — Counseling services are offered on a consistent basis and are a valuable on-campus resource for ongoing support during a School disciplinary proceeding or criminal process.

County Resources regarding orders of protection, no contact order, or restraining orders:

• Ramsey County Domestic Abuse and Harassment Office, 651-266-5130
• Hennepin County Domestic Abuse Service Center, 612-348-5073

Community/External Resources:

St Paul Police
Emergency 4911 (on Campus) and 911 (off Campus)
Non-Emergency Number:
651-291-1111

Casa de Esperanza
St. Paul, MN
651-772-1611
24-hour Bilingual (English and Spanish) helpline

Day One Services
1-866-223-1111
Crisis Support, information on shelters, safety panning, and orders for protection

Ramsey County Sexual Offense Services
651-643-3006
Please Note: This is a 24-hour crisis line

Lawyers Concerned for Lawyers
651-646-5590 or
1-866-525-6466

St Paul/Ramsey County Domestic Abuse Intervention Project (24-hour crisis line)
651-645-2824
888-575-3367

Minnesota Coalition Against Sexual Assault (MNCASA)
651-209-9993

National Domestic Violence Hotline
1-800-799-SAFE (7233)

OutFront Minnesota
(24-hour anti-violence crisis support line for LGBT Victims)
612-822-0127 (option 3)
1-800-800-0350 (Option 3)

Rape, Assault, and Incest National Network (RAINN)
1-800-656-4673
24-hour hotline; free and confidential
Online chat available.

Ramsey County Domestic Abuse and Harassment Office
651-266-5130

Regions Hospital Emergency Room
651-254-3306
640 Jackson Street
St. Paul, MN 55101

United Hospital Emergency Room
651-241-8755
333 North Smith Avenue
St. Paul, MN 55102

Sexual Offense Services of Ramsey County
24-hour hotline; free and confidential
555 Cedar Street
St. Paul, MN 55101
651-266-1000

[1] For complaints regarding incidents of sexual harassment, including sexual assault, stalking, dating violence, and domestic violence that take place within the United States, please see the School’s Title IX Sexual Harassment Policies.

[2] For complaints regarding any forms of harassment or discrimination besides that based on actual or perceived sex, gender, gender identity, sexual orientation, and gender expression, please see the School’s Non-Discrimination and Non-Harassment Policy.  

[3] The School does not prohibit relationships between employees and Students, faculty, and staff, or supervisors and Employees. That said, individuals must recognize that, in many of these types of relationships, there inherently exists a power differential that cannot be ignored and that may lend itself to various forms of Sexual Misconduct. For more information, please consult the School’s Problematic Consensual Romantic Relationship Policy.

[4] If a Complainant alleges that they were the victim of Sexual Misconduct by a Student, the Sex Discrimination and Sexual Misconduct Policy (Student Respondent) will apply.

[5] If the Respondent is both a Student and a Student Employee, this Policy applies (except for Respondents who are full-time Employees who are also taking classes at the School and who should consult the School’s Title IX Sexual Harassment Policy (Employee or Third Party Respondent)). A Respondent who is both a Student and a Student Employee may be subject to any of the sanctions applicable to Students or Employees.

[6] If either the Complainant or Respondent is a Student, then the procedure for appeals set forth in this Policy applies.

[7] For complaints regarding incidents of sexual harassment, sexual assault, stalking, dating violence, and domestic violence that take place within the United States, please see the School’s Title IX Sexual Harassment Policies.

[8] Michael Freer will typically serve as the Deputy Title IX Coordinator in situations when an Employee is either the Respondent or the Complainant.

[9] If the Complaint involves the President and Dean, the report shall be made directly to the Chair of the Board of Trustees.