Title IX Equal Opportunity Investigation

Emily Babb, Associate Vice Chancellor for Equal Opportunity and Title IX

 

The Office of Equal Opportunity & Title IX (EOIX) is responsible for responding to reports and complaints of discrimination, harassment, and gender-based violence. EOIX currently consists of four full-time employees. The purpose of this article is to familiarize faculty with the EOIX staff, the resolution processes, and what an individual can expect during a pending EOIX investigation or resolution.

Meet the Office
EOIX is located in Driscoll Commons, suite 30, and is led by Emily Babb, Associate Vice Chancellor for Equal Opportunity & Title IX/Title IX Coordinator. Emily oversees the implementation of the University’s Discrimination and Harassment Policy through the Title IX Sexual Harassment Procedures and the Comprehensive Discrimination and Harassment Procedures, as well as through campus-wide education and training, and proactive initiatives.

The Deputy Title IX Coordinator is Molly Hooker. Molly has been with DU for over 20 years and has a wide depth of knowledge. Molly conducts initial outreach, coordinates supportive measures, and assists in responding to reports of discrimination and harassment on the basis of sex, gender, gender expression, gender identity, sexual orientation, marital status, and pregnancy, as well as gender-based violence, such as sexual assault, dating and domestic violence, stalking, and sexual exploitation.

The Deputy Equal Opportunity Coordinator/Senior Investigator is Stuart Evans. Stuart joined DU in October 2021 and conducts initial outreach, coordinates supportive measures, and assists in responding to reports of discrimination and harassment on the basis of race, color, national origin, ancestry, age, religion, creed, disability, military enlistment, veteran status, and genetic information. Stuart also conducts investigations and informal resolutions regarding all forms of prohibited conduct as defined by the University’s Discrimination and Harassment Policy.

EOIX has a full-time Equal Opportunity and Title IX Investigator, Mackenzie Kintz. Mackenzie joined DU in October 2021, after having spent over eight years as an investigator at a firm that conducted investigations into elementary, secondary, and post-secondary institutions. Mackenzie conducts investigations and informal resolutions regarding all forms of prohibited conduct as defined by the University’s Discrimination and Harassment Policy. EOIX is currently hiring for the University’s first full-time ADA/Section 504 Coordinator and will be launching a search for an additional investigator this spring. EOIX also partners with local and national external investigators to conduct investigations when the need arises. To learn more about EOIX visit: https://www.du.edu/equalopportunity/who-we-are

How are reports of potential discrimination/ harassment resolved by EOIX?
Comprehensive Discrimination and Harassment Procedures

The Comprehensive Discrimination and Harassment Procedures apply to any report of conduct that is defined as “Discrimination/Harassment Prohibited Conduct.” The Comprehensive Discrimination and Harassment Procedures provide three forms of resolution: inquiry, informal resolution, and formal resolution.

• Inquiry is an initial inquiry at the discretion of the Associate Vice Chancellor for EOIX to determine whether a report may be resolved informally or to gather additional information to determine whether a formal investigation is appropriate. An Inquiry can also include an administrative review. The parties do not have a right to review all information gathered during an Inquiry but will be notified of the steps taken and any result.
• Informal Resolution is a voluntary, alternative resolution process. EOIX cannot compel a complainant or respondent to participate in Informal Resolution. Informal Resolution may take a variety of forms, such as a facilitated conversation between the parties, an educational/coaching conversation with the respondent, implementation of interventions (such as an No Contact Order, safety planning, modifications to housing, parking, etc.), or a facilitated agreement between the parties.
• Formal Resolution/Formal Investigation is a formal investigation conducted by a neutral investigator, with an opportunity to provide and review information gathered during the investigation and respond. The parties are provided access to all information gathered during the investigation. A formal resolution may result in disciplinary outcomes for the respondent and/or remedies for the complainant. The University must disclose the identity of the complainant when conducting a formal investigation.

Title IX Sexual Harassment Procedures
Title IX Sexual Harassment Procedures apply to any report of conduct that is defined as “Title IX Prohibited Conduct.” The Title IX Sexual Harassment Procedures provide two forms of resolution: informal resolution and formal resolution, which are substantially similar to the definitions above. There are two key differences between the Title IX Sexual Harassment Procedures and the Comprehensive Discrimination and Harassment Procedures:

1.  If the reported conduct falls under the Title IX Sexual Harassment Procedures, the Complainant or AVC for EOIX/Title IX Coordinator MUST file a Formal Complaint before proceeding to resolution.
2. A Formal Resolution/Formal Investigation includes a hearing before a Hearing Officer/Decision Maker. However, parties are not required to participate in the hearing.

What can an individual expect during a Formal Resolution (Formal Investigation)?
When EOIX receives a report of discrimination, harassment, or gender-based violence, which, if true, could constitute a violation of University policy and either the complainant requests an investigation or the AVC for EOIX determines an investigation is necessary, EOIX will initiate a formal investigation, also known as a “Formal Resolution.”

Note: Under the Title IX Sexual Harassment Procedures, a Formal Complaint must also be filed. A party may have an advisor or support person present with them through any EOIX process.

Below are the steps that occur in an investigation pursuant to the Comprehensive Discrimination and Harassment Procedures:

1. EOIX issues a Written Notice of Allegations and Investigation to both parties (e.g., complainant and respondent). The notice outlines the alleged conduct known by EOIX, the potential policy violations, the procedures that apply, the identity of the investigator, an opportunity to challenge the investigator for bias or conflict of interest, an offer for an informational meeting with EOIX to explain the investigation process, and an overview of steps.
2. EOIX conducts an informational meeting with the complainant and/or respondent if requested by either party. At the informational meeting, EOIX will explain the process and next steps and answer any questions the party may have about the process.
3. The assigned investigator conducts the investigation. An investigation includes interviewing the parties and relevant witnesses, as well as gathering information from the parties and witnesses (e.g., emails, text messages, photos, videos, etc.) and information available from other University offices (e.g., class rosters, University policies, course recordings/assignments, emails, personnel records, etc.). The investigator cannot compel a party or witness to participate in an interview and does not have subpoena authority to compel a party or witness to provide documents.
4. At the conclusion of the investigation, the investigator prepares a Preliminary Investigation Report which summarizes the information gathered but does not include a finding whether the policy has been violated. The parties are provided access to view the Preliminary Investigation Report and all exhibits cited to within the Preliminary Investigation Report and are given an opportunity to respond. A response may include submitting a written response, asking to be interviewed by the investigator, providing questions to be asked of the other party or a witness, and/or providing additional information or evidence. A party may also choose not to respond.
5. Following the response to the Preliminary Investigation Report, the investigator may conduct additional investigative steps. If additional investigation is done or there is a substantive response to the Preliminary Investigation Report, the investigator may prepare an Amended Preliminary Investigation Report and provide additional time to respond to the Amended Report.
6. The investigator will then prepare a Final Investigation Report. The Final Investigation Report will summarize all information gathered and include a finding as to whether the policy has been violated. The parties are provided access to view the Final Investigation Report and all exhibits cited to within the Final Investigation Report. Either party may appeal the finding on the bases set forth in the Procedures.

Below are the steps that occur in an investigation pursuant to the Title IX Sexual Harassment Procedures. Steps one through three are the same in the Title IX Sexual Harassment Procedures and the Comprehensive Discrimination and Harassment Procedures.

1. At the conclusion of the investigation, the investigator provides access to all information gathered during the course of the investigation and the parties are given an opportunity to respond. A response may include submitting a written response, asking to be interviewed by the investigator, providing questions to be asked of the other party or a witness, and/or providing additional information or evidence. A party may also choose not to respond.
2. The investigator may conduct additional investigative steps. If additional investigation is done or there is a substantive response to the Preliminary Investigation Report, the investigator may prepare an Amended Preliminary Investigation Report and provide additional time to respond to the Amended Report.
3. The investigator will then prepare an Investigation Report. The Investigation Report will summarize all information gathered but does not include a finding as to whether the policy has been violated. The parties are provided access to view the Investigation Report and all exhibits cited to within the Final Investigation Report.
4. The Investigation Report and exhibits are provided to the hearing officer who serves as the decision-maker. The hearing officer will conduct a live hearing and provide the parties an opportunity to present an opening and closing statement, and ask questions of the other party and witnesses through their advisor. The parties and witnesses are not required to participate in the hearing.
5. The hearing officer will prepare a Written Determination that identifies the allegations, the procedural steps, the findings of fact that support the determination, and a conclusion as to whether the policy has been violated. If there is a finding that the policy has been violated, the information will be provided to the decision-maker for Disciplinary Action or Outcome Council (if the respondent is a student). Either party may appeal the finding on the bases set forth in the Procedures.

Frequently Asked Questions about EOIX Resolution Processes

What does it mean to be a complainant or respondent?

A complainant is the individual who is alleged to have experienced conduct that could constitute Prohibited Conduct pursuant to the University’s Discrimination and Harassment Policy. A respondent is an individual who has been reported to have engaged in conduct that could constitute Prohibited Conduct.

May a party have an advisor present with them during an EOIX Resolution Process?

Yes. Any party may have an advisor and/ or support person present with them to support them through the EOIX resolution processes.

Does a party have to participate in the investigation?

No. Either party may choose not to participate in the investigation and no adverse inference will be drawn by a decision to not participate.

What kinds of questions are asked during an investigation?

The investigator will ask relevant questions. Typically, the investigator will ask open-ended questions; however, the investigator may ask specific follow-up questions or ask questions posed by one party to the other. The investigator may ask questions to further understand a particular response. For example, if an interviewee tells the investigator they apply a rubric for grading, the investigator may ask the interviewee to explain the rubric; or, if an interviewee tells the investigator they rely on training they have received regarding grading practices, the investigator may ask the interviewee to explain the training.

How long does an investigation take?

EOIX strives to resolve an allegation within 60 to 90 business days. However, an investigation may take additional time for a number of reasons, such as when there is voluminous exhibits/evidence, extensions are provided to parties or witnesses in scheduling, or the issues are particularly complex. The investigator will communicate with the parties throughout the process.

Why does EOIX use external investigators, and when are external investigators used?

EOIX contracts with external investigators who are trained in the University’s policies and procedures as well as conducting investigations at higher education institutions. EOIX engages external investigators when staffing needs require their use, such as due to staff turnover, a need for specialized expertise, or due to the number of pending matters currently under investigation.

Can a party appeal the opening of an investigation?

No. A party can appeal the dismissal of a formal investigation (under the Title IX Sexual Harassment Procedures) or the final determination, but the decision to proceed with an investigation is not appealable. However, a party may choose not to participate, and no adverse inference is drawn by such a decision.

Can a party meet with someone to discuss the notice or investigation?

Yes. Either party may request an informational meeting with EOIX to go over the formal investigation process and answer any questions the party may have. In addition, for complaints involving gender-based violence, discrimination, and harassment, the Center for Advocacy, Prevention, and Education (CAPE) provides confidential advocates. Either party may meet with an advisor or support person to seek support. An advisor or support person may be a friend, colleague, lawyer, etc.

What kind of support is available to someone who is going through an EOIX investigation?

The University offers several support resources. CAPE provides advocacy and support for students and employees who experience sexual assault, relationships violence, stalking, and sexual harassment. In addition, students may access counseling resources through the Health and Counseling Center (HCC). Staff and faculty have access to counseling resources through the Employee Assistance Program. Click HERE for more information about EAP. Information about additional community resources is available HERE

Can someone report to EOIX without revealing their name?

Yes. Unless the person is reporting in their role as a Responsible Employee (as they are required to report allegations of discrimination, harassment, and gender-based violence to EOIX), the individual may disclose as much or as little as they wish to about the situation. However, EOIX may be limited in its response if the parties are unknown. In addition, any individual may contact EOIX to ask about the resolution process without disclosing any information about the alleged conduct.