Review/Revised Date: 8/25/2021
The University of Alabama at Birmingham (“UAB” or “the University”) has developed these Procedures for the Resolution of Title IX Sexual Harassment and Sexual Violence Complaints (“the Procedures”) pursuant to and in compliance with Title IX of the Education Amendments of 1972 and its implementing regulations (collectively referred to as “Title IX”). These Procedures should be read in conjunction with the Title IX Sex Discrimination, Sexual Harassment, and Sexual Violence Policy (“the Title IX Policy”), which includes additional information regarding applicable definitions, key terms, reporting options, available resources and other relevant topics.
These Procedures will be used to investigate and resolve all complaints of Sexual Harassment/Sexual Violence, as described within the definition of Prohibited Conduct in the Title IX Policy, brought against UAB students, faculty and staff members, affiliates, and non-affiliates (i.e., someone not associated with UAB), as appropriate. 1
Any conduct that does not rise to the level of Prohibited Conduct under the Title IX Policy, and/or falls outside the jurisdiction of this policy, may be investigated and addressed pursuant to other applicable, non-Title IX policies, including but not limited to UAB’s Equal Opportunity and Discriminatory Harassment Policy, Student Conduct Code, UAB Duty to Report and Non-Retaliation Policy, and Enterprise Code of Conduct. If deemed appropriate, alleged violations of non-Title IX policies that arise out of the same facts and circumstances as the Title IX allegations may be investigated by the Title IX Office, in collaboration with the appropriate department (i.e. Student Conduct, Human Resources) and resolved under these Procedures. Under these circumstances, the relevant definitions of conduct outlined in any other applicable, non-Title IX policy will apply to the non-Title IX allegations. If the Title IX allegations are dismissed for any reason, the non-Title IX allegations may be investigated and adjudicated under any other applicable, non-Title IX UAB policies or procedures.
All community members are strongly encouraged to report to the University any incident of “Prohibited Conduct” as defined in the Title IX Policy. Many University administrators are specifically trained to support individuals affected by Prohibited Conduct and the University is fully committed to promoting a safe and healthy educational and work environment.
Both Complainants and Respondents have the following rights:
The Title IX Coordinator seeks to resolve all reports as promptly as reasonably possible. Best efforts will be made to follow the time frames discussed below.
In calculating time periods, “business days” do not include weekends or UAB holidays. All time frames may be extended when necessary to ensure the integrity and completeness of the investigation, comply with a request by external law enforcement, accommodate the availability of witnesses, accommodate delays by the parties, account for University breaks or vacations, or address other legitimate reasons, including the complexity of the investigation (including the number of witnesses and volume of information provided by the parties) and the severity and extent of the alleged conduct. Any extension of the timeframes, and the reason for the extension, will be shared with the parties in writing.
When a report of Prohibited Conduct is made, the Title IX Coordinator and/or a Deputy Title IX Coordinator will contact the Complainant for a preliminary discussion of the availability of Supportive Measures, consider the Complainant’s wishes with respect to Supportive Measures, inform the Complainant of the availability of Supportive Measures with or without the filing of a Formal Complaint, and explain the process for filing a Formal Complaint.
During the preliminary discussion with the Complainant, the Title IX Coordinator and/or Deputy Title IX Coordinator will gather facts that will enable the Title IX Investigator(s) in consultation with other offices as appropriate, to:
If a Complainant wants to maintain anonymity and/or request that no investigative or disciplinary measures be taken, the Title IX Coordinator and/or Deputy Title IX Coordinator will advise the Complainant that the University will consider the request but cannot guarantee that the University will be able to honor the request if the Title IX Coordinator determines it would be clearly unreasonable in light of known circumstances not to investigate the allegations. The University will conduct a thoughtful and intentional assessment and will weigh such a request in light of the University’s obligation to provide a safe, non-discriminatory environment. In determining whether it can honor a request for confidentiality, the following factors will be considered:
The University’s ability to fully investigate and respond to a report may be limited if the Complainant requests that their name not be disclosed to the Respondent or declines to participate in an investigation.
An investigation and initial assessment will not be initiated unless and until a Formal Complaint is filed. A Formal Complaint is a document filed by a Complainant or signed by the Title IX Coordinator alleging Prohibited Conduct against a Respondent and requesting that the recipient investigate the allegation of Prohibited Conduct. To file a Formal Complaint, a Complainant must be participating in, or attempting to participate in UAB’s education programs or activities or employed by UAB. Formal Complaints cannot be anonymous except for Formal Complaints filed by the Title IX Coordinator when the Title IX Coordinator believes that with or without the Complainant’s desire to participate in a grievance process, it would be clearly unreasonable in light of known circumstances not to investigate the allegations.
The assessment will determine whether the alleged conduct could present a potential violation of the Title IX Policy and whether further action is warranted based on the alleged conduct, including whether the Formal Complaint must be or may be dismissed.
Where a Complainant desires to file a Formal Complaint to initiate a grievance process, the Complainant cannot remain anonymous or prevent their identity from being disclosed to the Respondent. The Complainant may request to withdraw a Formal Complaint at any time. The University reserves the right to make a determination whether to approve or deny this request, but will strongly consider the Complainant’s wishes.
The Title IX Coordinator may consolidate Formal Complaints against more than one Respondent or by more than one Complainant against one or more Respondents or by one party against the other party where the allegations of Prohibited Conduct arise out of the same facts or circumstances. Arising out of the same fact and circumstances means that the multiple Complainants’ allegations are so intertwined that their allegations directly relate to all the parties.
The Title IX Coordinator may dismiss a Formal Complaint based on the following grounds:
Upon a mandatory or permissive dismissal, the Title IX Coordinator will promptly send written notice of the dismissal and the reason(s) for the dismissal simultaneously to the parties. A mandatory or permissive dismissal does not preclude UAB from investigating and addressing the alleged conduct pursuant to other applicable, non-Title IX policies, including but not limited to, UAB’s Equal Opportunity & Discriminatory Harassment Policy, Student Conduct Code and Enterprise Code of Conduct. If the dismissed allegations arise out of the same facts and circumstances as other Title IX allegations that are not dismissed by the Title IX Coordinator, the University has discretion to continue to investigate both the Title IX and the non-Title IX allegations using these Procedures. For the non-Title IX allegations, the relevant definitions of conduct outlined in the other applicable, non-Title IX policy will be used.
Either party may appeal the dismissal of a Formal Complaint in accordance with Section VI of these procedures.
The Respondent may, at any time before a determination of responsibility has been made, request to resolve the investigation process or resolve specific allegation(s) by accepting responsibility for the Prohibited Conduct. A request to accept responsibility for the Prohibited Conduct will be treated as a request to engage in the Informal Voluntary Resolution process outlined in Section D of these procedures. The Complainant must consent to engage in Informal Voluntary Resolution with the Respondent, and either party can request to end this manner of resolution and pursue an investigation at any time. Because the outcome of the Informal Voluntary Resolution process is mutually developed and agreed upon by the parties, an appeal of the process and its result is not permitted.
Informal Voluntary Resolution is a path designed to eliminate the conduct at issue, prevent its recurrence, and remedy its effects in a manner that meets the expressed preference of the Complainant and preserves the safety and welfare of the campus community.
Informal Voluntary Resolution does not involve an investigation, adjudication hearing, or disciplinary action against a Respondent and is not appropriate for all forms of conduct under the Title IX Policy. Informal Voluntary Resolution is available only if a Formal Complaint is filed and both parties voluntarily agree in writing to participate.
To proceed with Informal Voluntary Resolution, the Title IX Coordinator must provide the parties with written notice that includes the following information: (1) a description of the allegations in the Formal Complaint; (2) the requirements of the informal resolution process, including the circumstances under which UAB precludes the parties from resuming a Formal Complaint arising from the same allegations; (3) any consequences resulting from participating in the Informal Voluntary Resolution process, including the records that will be shared and maintained; and (4) any party’s right to, at any time prior to agreeing to a resolution, withdraw from the informal resolution process and resume the grievance process with respect to the Formal Complaint.
Informal Voluntary Resolution will be facilitated by University-sanctioned trained professionals. The time frame for completion of Informal Voluntary Resolution may vary, but the University will seek to complete the process within sixty (60) business days of the Complainant’s request.
Informal Voluntary Resolution will not be used in cases involving allegations that an employee sexually harassed a student. The University retains the discretion to determine which other cases are appropriate for Informal Voluntary Resolution. The University may gather information necessary through interviewing individuals and other evidence gathering to determine if the case is appropriate for Informal Voluntary Resolution. Factors the University will consider when determining whether a report of Prohibited Conduct is suitable for Informal Voluntary Resolution include, but are not limited to, the following:
Informal Voluntary Resolution may result in the following remedies: establishing Supportive Measures; conducting targeted or broad- based educational programming or training for relevant individuals or groups; providing increased monitoring, supervision, or security at locations or activities where the misconduct occurred; and any other remedy that can be tailored to the involved individuals to achieve the goals of the Title IX Policy.
Informal Voluntary Resolution may also include restorative principles that are designed to allow a Respondent to accept responsibility for misconduct and acknowledge harm to the Complainant or to the University community. Informal Resolution may also include mediation.
Participation in Informal Voluntary Resolution is a choice, and either party can request to end this manner of resolution and pursue an investigation at any time, including if Informal Voluntary Resolution is unsuccessful at resolving the Report. Similarly, a Complainant may request to end an investigation and pursue Voluntary Resolution at any time if the Respondent also consents to Informal Voluntary Resolution. In addition, either party may request Supportive Measures regardless of whether any particular course of action is sought.
The University may also decide to proceed with a formal investigation and withdraw its approval for the Informal Voluntary Resolution at any time during the process. If additional potential Policy violations are revealed during the Informal Voluntary Resolution process, the University may withdraw its approval for the process and proceed with a formal investigation or the University, with the consent of the parties, may continue the Informal Voluntary Resolution process and resolve the additional potential Policy violations.
Information disclosed by any party during the Informal Voluntary Resolution process will not be considered during a subsequent investigation or adjudication hearing.
Because the outcome of Informal Voluntary Resolution process is mutually developed and agreed upon by the parties, an appeal of the process and its result is not permitted.
The University may become aware of a student whose continued participation within the University community may pose an imminent threat to another person’s physical health or safety arising from the allegations of Prohibited Conduct. If the Title IX Coordinator reasonably determines that such a threat is posed, a Respondent may be removed from the University’s educational program or activity. The Title IX Coordinator may consult with other University personnel, including UAB’s Behavioral Threat Assessment Team (BTAM), as necessary, in deciding whether to implement an Emergency Removal.
Prior to taking any action, the Title IX Coordinator must conduct an individualized safety and risk analysis to determine whether an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Prohibited Conduct justifies removal of the Respondent. As part of the assessment, the Title IX Coordinator must carefully evaluate whether appropriate Supportive Measures are a more appropriate and less restrictive means to negate or sufficiently minimize the likelihood of a threat’s occurrence. The decision to implement an Emergency Removal may be made at any point in the Title IX process.
Emergency Removal generally means that the student is not allowed on UAB’s campus and cannot attend classes or participate in any University sponsored activities both on and off University property. Emergency Removal generally includes a prohibition on attending activities hosted by any University sponsored or recognized groups. An Emergency Removal may be limited to an exclusion and/or administrative ban from a portion of any University Premises or any University-sponsored activity, including, but not limited to, removal from an athletic team or removal from housing. Any exceptions to Emergency Removal will be explicitly communicated by the Title IX Coordinator.
Students who are removed from campus on an emergency basis will have the opportunity to request a review of the decision. Notification of an Emergency Removal will be sent to the student’s University e-mail account. Students may additionally be notified by other means. The notification will include information regarding the alleged Prohibited Conduct, the rationale for the Emergency Removal, and the process to request a review of the decision.
Students requesting a review of an Emergency Removal decision may do so by contacting the Vice President of Student Affairs or his/her designee. This review is an opportunity for the student to articulate why the student’s presence does not pose an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Prohibited Conduct. The request for review must be submitted by the student within five (5) business days from the date of the Emergency Removal notification.
The review will take place within three (3) business days from the date of the request. The Emergency Removal decision, and any relevant information, will be reviewed and the decision will either be supported, modified, or revoked. The student’s request for review of the Emergency Removal decision must be in writing and include the rationale for the request and any documentation or information that supports lifting the Emergency Removal.
In reviewing the request, the VP of Student Affairs or his/her designee shall consider the following issues only:
The VP of Student Affairs or designee may, in their discretion, meet with the student and utilize information gathered in that meeting to make a decision whether to terminate or modify the Emergency Removal. The student may have an advisor present. If the student is unable to participate in the review, the review may be postponed until the student can participate.
Under certain circumstances, as a condition for termination or modification of the Emergency Removal, the VP of Student Affairs or designee may require that certain conditions be met, such as the student complete a medical or psychological evaluation to be arranged and paid for by the University. The student shall ensure that the medical or psychological evaluation report or other requested report is delivered to the University promptly. Within five (5) business days after delivery of such report, the student may submit a written request for termination or modification of the Emergency Removal to the VP of Student Affairs or designee. The VP of Student Affairs or designee shall consider such report in making a decision whether to terminate or modify the Emergency Removal.
The notification of the review decision will be sent to the student’s University e-mail account and may additionally be sent by other means. The Emergency Removal will remain in effect while the investigation, adjudication, and appeal process are pending. There will be no further appeals to the decision rendered upon review. The University, however, has discretion to impose, lift, reassess, or modify an Emergency Removal as circumstances may warrant at any point in a case, including without limitation as new information becomes available.
With respect to faculty and staff, UAB may place a faculty or staff Respondent on administrative leave (with or without pay) during the pendency of an investigation and these grievance procedures. For student-employees, if the alleged Prohibit Conduct primarily occurred in the working environment, the student-employee may be placed on administrative leave from the working environment as long as the student-employee’s access to education is not jeopardized. The Emergency Removal process described above does not apply to faculty, staff, non-student Respondents or student-employees if the Prohibited Conduct primarily occurred in the working environment.
If deemed appropriate based on the Initial Assessment, the Title IX Coordinator shall initiate a prompt, thorough, and impartial investigation of Prohibited Conduct in accordance with these Procedures. The Title IX Coordinator (or designee) will designate an Investigator(s) who has training and experience investigating allegations of Prohibited Conduct. The Investigator may be a University employee or an outside Investigator. For Formal Complaints involving allegations against faculty, staff, or non-student third-parties, the Title IX Coordinator (or designee) will collaborate with Human Resources. The Investigator(s) will coordinate the gathering of information which may be used to make an Investigative Finding regarding whether the alleged Prohibited Conduct constitutes a violation of the Title IX Policy by a preponderance of the evidence. A preponderance of the evidence means that it is more likely than not that the Prohibited Conduct occurred based on a totality of the circumstances.
The investigation is a neutral fact-gathering process. The Respondent is presumed not to have violated the Title IX Policy until a determination regarding responsibility is made at the conclusion of the grievance process. This presumption may be overcome only where the preponderance of the evidence supports a finding that the Respondent is responsible for violating the Title IX Policy.
Neither party is required to participate in the investigation nor any form of resolution under these Procedures. The Investigator will not draw an adverse inference merely because either of the parties elected not to participate.
UAB will disclose information about its investigation and resolution of complaints only to those who need to know the information in order to carry out their duties and responsibilities. It will inform all University personnel participating in an investigation, proceeding, or hearing that they are expected to maintain the privacy of the process. This does not prohibit either a Complainant or Respondent from obtaining the assistance of family members, counselors, therapists, clergy, doctors, attorneys, or other resources or discussing the allegations under investigation, or gathering and presenting evidence, including communicating with witnesses or potential witnesses.
The Title IX Coordinator or Deputy Title IX Coordinator will send the Complainant and the Respondent and, if applicable, the Respondent’s appropriate supervisor, a written Notice of Investigation, which constitutes the formal charge. The Notice of Investigation will contain the following information:
The Notice of Investigation must allow the Respondent sufficient time to prepare a response before any initial interview. Upon receipt of the Notice of Investigation, or at any stage in the process, the Respondent may choose to accept responsibility for the Title IX Policy violation(s). Once the Notice of Investigation has been delivered to the parties, the investigation phase begins.
If, in the course of an investigation, the Title IX Investigator decides to investigate allegations about the Complainant or Respondent that are not included in the initial Notice of Investigation, the Title IX Coordinator or Deputy Title IX Coordinator will provide notice of the additional allegations to the parties whose identity is known.
The Title IX Coordinator and/or Deputy Title IX Coordinator will oversee the investigation. The investigation is designed to provide a fair and reliable gathering of the facts by a trained and impartial Investigator(s). All individuals, including the Complainant, the Respondent, and any third party witnesses will be treated with appropriate sensitivity and respect throughout the investigation. The investigation will safeguard the privacy of the individuals involved in a manner consistent with federal law and University policy.
During the investigation, the Complainant and Respondent will have an opportunity to be heard, to submit information, and to identify witnesses who may have relevant information, including fact and expert witnesses, and other inculpatory and exculpatory evidence. The Investigator(s) will speak separately with the Complainant, the Respondent, and any other individuals who are willing to participate and have information relevant to the determination of responsibility. As part of the investigation, the Investigator(s) will gather or receive information that is relevant to the determination of an appropriate sanction or remedy, including information about the impact of the alleged incident on parties.
The Investigator(s) will also endeavor to gather any available physical or documentary evidence, including prior statements by the parties or witnesses, any communications between the parties, email messages, social media materials, text messages, and other records as appropriate, available, and feasible. The Investigator(s) has the discretion to determine the relevance of any witness or other evidence to the finding of responsibility and may exclude information if the Investigator(s) determines that the information is irrelevant. The parties will have the right to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations, including evidence upon which the Investigator(s) does not intend to rely and inculpatory or exculpatory evidence whether obtained from a party or other source.
The Investigator(s) may not access, consider, disclose or otherwise use a party’s records maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional which are made and maintained in connection with the provision of treatment to the party unless the party holding such privilege has waived the privilege. Additionally, evidence of the Complainant‘s sexual history or behavior is not relevant if it is offered to prove that the Complainant engaged in other sexual behavior or to prove the Complainant‘s sexual predisposition. Such evidence may be offered to show:
The University will seek to conclude the investigation within sixty (60) business days from the issuance of the Notice of Investigation. The time frame for completion of the investigation, or any designated time frames of steps in the investigation, may be extended for good cause as necessary to ensure the integrity and completeness of the investigation, to comply with a request by external law enforcement, to accommodate the availability of witnesses, to account for University breaks or vacations, to account for complexities of a case (including the number of witnesses and volume of information provided by the parties), or to address other legitimate reasons. Any extension of the timeframes, and the reason for the extension, will be shared with the parties in writing. Best efforts will be made to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness.
The filing and processing of a Formal Complaint is separate from and independent of any criminal investigation or proceeding. Where the University is made aware that there is a concurrent criminal investigation, the Title IX Coordinator or Deputy Title IX Coordinator will coordinate with law enforcement so that any University processes do not interfere with the integrity or the timing of the law enforcement investigation. At the request of law enforcement, the University may agree to defer its investigation until after the initial stages of a criminal investigation. The Title IX Coordinator or Deputy Title IX Coordinator will nevertheless communicate with the parties regarding Supportive Measures and accommodations, procedural options, anticipated timing, and the implementation of any necessary Supportive Measures for the safety and well-being of all affected individuals.
The identity of the Complainant will remain confidential unless disclosing the Complainant’s identify is necessary to provide the Supportive Measures for the Complainant.
If the University defers the Title IX investigation, the Investigator(s) will promptly resume fact gathering as soon as law enforcement has released the case for review following the initial criminal investigation. Neither law enforcement’s determination as to whether to prosecute a Respondent nor the outcome of any criminal prosecution is determinative of whether sexual misconduct occurred under the Title IX Policy. If, however, a Respondent is later convicted of a crime, that Respondent could be subject to other policies and procedures that could result in discipline up to and including dismissal.
All community members, including students, faculty and staff, are strongly encouraged and expected to cooperate with the Title IX Coordinator or Deputy Title IX Coordinator in the investigation, as well as any adjudication, of any Report of Prohibited Conduct. The Title IX Coordinator or Deputy Title IX Coordinator may request the appearance of persons from the University community who can provide relevant evidence. Both a Complainant and a Respondent may decline to participate in proceedings under the Policy. The Title IX Coordinator or Deputy Title IX Coordinator will determine whether the investigation and any adjudication will proceed without any Complainant(s) pursuant to the factors set out in Section II, B (5)(a) above.
At all stages of the process, UAB will apply the preponderance of the evidence standard of proof (more likely than not) when determining whether the Title IX policy has been violated.
The Complainant and Respondent have the right to discuss or write about the allegations under investigation and to gather and present evidence. While a party has a right to communicate with witnesses or potential witnesses, witness tampering and intimidation is prohibited. If a Respondent reacts to a written notice of allegations by intimidating witnesses, such conduct constitutes Retaliation and will be investigated and adjudicated pursuant to these procedures.
The Complainant and Respondent will be provided the opportunity to submit a written Impact Statement. These written Impact Statements will not be considered in the determination of responsibility, but will be considered in the determination of potential sanctions and/or remedies. The Impact Statement may be submitted at any time in the process, provided that it is received no later than five (5) business days after the parties have received a copy of the Final Investigative Report. The Impact Statement(s) will be shared with the parties, but may be redacted at the discretion of the Title IX Coordinator or Deputy Title IX Coordinator, or in accordance with FERPA.
At the conclusion of the investigation, the Investigator(s) will provide the Complainant and Respondent and their advisors, if any, a copy of the evidence that has been obtained as part of the investigation that is directly related to the allegations in the Formal Complaint, including inculpatory and exculpatory evidence whether obtained from a party or another source, and evidence that the University do not intend to rely in reaching a determination of responsibility. The evidence will be provided with any redactions if required by applicable federal and/or state law and/or information that is not directly related to the allegations. The parties will receive a copy of the evidence electronically but as a precondition of receiving a copy of the evidence, all parties, and their respective advisors (if any) must sign and agree to abide by a non-disclosure agreement.
A Complainant and Respondent may submit any additional evidence, comment, or information to the Investigator(s) within ten (10) business days of the date of receipt of the evidence. This is typically the final opportunity for the parties to identify any additional information or witnesses for the Investigator’s consideration in drafting the Final Investigation Report. In the absence of good cause shown, information discoverable through the exercise of due diligence that is not provided to the Investigator within ten (10) business days of receipt of the evidence will not be considered by the Investigator(s) or Hearing Officer.
Upon receipt and consideration of any additional information from the Complainant or Respondent, or after the ten (10) business days comment period has lapsed without comment, the Investigator(s) will complete a Final Investigation Report that objectively summarizes the relevant evidence based on a preponderance of the evidence standard. The parties and their advisors will simultaneously receive a copy of the Final Investigation Report (which is also subject to the non-disclosure agreement) at least ten (10) business days prior to an adjudication hearing. The Complainant and Respondent will each have an opportunity to review and respond in writing to the Final Investigation Report. Any such response by the parties must be submitted to the Title IX Coordinator within five
(5) business days of transmission of the Final Investigation Report. The Title IX Coordinator will provide any statement(s) with the Final Investigation Report to the Hearing Officer.
For investigations of Prohibited Conduct involving hospital employees and/or occurring in a non-educational hospital or clinical setting, 3 the adjudication procedures outlined below in Section V do not apply. In these instances, after the Investigator(s) sends the final investigative report to the parties, the Hearing Officer must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. 4 The initial written questions must be submitted to the Hearing Officer within ten (10) business days after receipt of the final investigative report. Each party will have seven (7) business days to submit answers. The parties must submit any limited follow-up questions within three (3) business days and answers are due three (3) business days later. The Hearing Officer must explain to the party proposing the questions any decision to exclude a question as not relevant. The Hearing Officer’s relevancy decision may not be challenged by the parties or their advisors.
The Hearing Officer will make a determination, by a preponderance of the evidence standard, regarding whether a Title IX Policy violation occurred. The Hearing Officer will provide the Final Outcome Decision (as outlined in Section V(D)), including the basis for the determination, in writing to the Complainant and the Respondent and their advisors simultaneously. The parties have a right to appeal the findings and/or sanction pursuant to the Appeals procedures outlined below in Section VI(B).
The Title IX Coordinator (or designee) will appoint a Hearing Officer who has received appropriate training.
The Hearing Officer’s role is to conduct an independent and objective review of all of the evidence, including inculpatory and exculpatory evidence, directly related to the allegations, and determine if the Respondent violated the Title IX policy based on a preponderance of the evidence standard (and, if yes, to determine an appropriate sanction).
The hearing will be scheduled and will proceed according to the guidelines set forth below:
The Title IX Coordinator (or designee) will issue a written Notice of Hearing to the parties and their advisors with information regarding the hearing including the date, time, and location of the hearing; the name of the Hearing Officer; and how to challenge the Hearing Officer for bias or conflict of interest. The Title IX Coordinator (or designee) will have sole discretion to determine whether the Hearing Officer has bias or conflict of interest, and if so, the responsibility to appoint another Hearing Officer.
The hearing will usually be scheduled within twenty five (25) business days from the date of the Notice of Hearing, subject to extension for good cause at the discretion of the Hearing Officer. Good cause for extension may include the unavailability of the parties, the schedule of the Hearing Officer, the timing of semester breaks or University holidays, concurrent law enforcement activity, or other extenuating circumstances. Any extension, including the reason for the extension, will be shared with the Complainant and Respondent and their advisors in writing.
If, despite being notified of the date, time, and location of the Hearing, either party is not in attendance, the hearing may proceed subject to the limitations set forth herein.
The Hearing Officer is responsible for the administration of the hearing process, including procedural matters and decisions leading up to the hearing, determinations about information that will be considered or not, appropriate and inappropriate lines of questioning, and the overall decorum and conduct of the proceedings. The Hearing Officer is not bound by strict rules of legal evidence and may admit evidence that is of probative value (evidence that is useful in proving or disproving a fact) in determining the issues involved.
The Hearing Officer will apply the preponderance of the evidence standard (more likely than not) when determining whether the Title IX policy has been violated.
A transcript of the hearing will be available to the parties for inspection and review within twenty-one (21) business days after the conclusion of the hearing.
The Hearing is an opportunity for the Complainant and Respondent to address the Hearing Officer in person. The parties may address any information in the Final Investigation Report and supplemental statements submitted in response to the Final Investigation Report. The Complainant and the Respondent have the right to make an opening and a closing statement. The Complainant shall give the first opening statement. The Respondent shall give the final closing statement. The Complainant and the Respondent may each include a statement of the impact of the alleged offense as part of their respective closing statements.
Each party must notify the Title IX Coordinator (or designee) at least ten (10) business days prior to the hearing if they will be accompanied by an advisor. If a party does not have an advisor, UAB will assign the party an advisor of the University’s choice provided without fee or charge. 5 Each party has the opportunity to be heard and to identify and secure witnesses, including expert witnesses, for the Hearing Officer’s consideration. Each party must provide a list of potential hearing witnesses and to the Title IX Coordinator (or designee) at least four (4) business days prior to the hearing.
All materials that the Complainant or Respondent want the Hearing Officer to consider must be submitted to the Title IX Coordinator (or designee) at least four (4) business days prior to the hearing. All evidence each party wishes to be considered by the Hearing Officer should be presented to the Investigator(s) during the investigation process. If a party does not provide some piece of evidence to the Investigator during the investigation process, that party may only present such evidence during the hearing if the Hearing Officer permits the party to do so in the Hearing Officer’s sole discretion. Generally, evidence not presented during the investigation process will only be allowed in the hearing if it is new information not known and not available during the investigation process.
The Title IX Coordinator (or designee) will provide the witness lists and submitted materials to the Hearing Officer and make copies available to the Complainant and Respondent at least three (3) business days prior to the hearing, consistent with FERPA or other laws and regulations governing the disclosure of education records. Any materials submitted and/or discovered fewer than four (4) business days before the Hearing may only be considered at the sole discretion of the Hearing Officer.
All participants in the hearing are expected to behave with decorum and may be asked to leave if they do not.
At the request of either party, the University will conduct the entire hearing (including cross-examination) with the parties located in separate rooms, utilizing technology enabling the parties to see and hear each other.
With the exception of cross-examination, all questioning of parties is conducted through the Hearing Officer. A party may recommend direct questions to be asked of a party’s own witness or non-party witnesses by submitting them in writing to the Hearing Officer prior to the hearing. During the hearing, a party may also suggest questions for direct examination of the party’s witness to the Hearing Panel based on information presented during the hearing.
The Hearing Officer may also independently question the parties, witnesses, and/or Investigator to elicit relevant information. The Hearing Officer is barred from drawing any inference about the determination of responsibility based solely on a party’s refusal to answer the Hearing Officer’s questions.
All admissible relevant evidence will be evaluated for weight or credibility (the quality of being reliable, trusted and believed in). Evidence that is deemed duplicative of other evidence is not relevant.
Each party and all witnesses are subject to cross-examination by the opposing party’s respective advisors. The party’s advisor may ask the other party and any witnesses all relevant cross-examination questions and follow-up questions, including those challenging credibility. Such questioning must be conducted directly, orally, and in real time by the party’s advisor and never by the parties personally. The parties and advisors are prohibited from questioning parties and witnesses in an abusive, intimidating, or disrespectful manner.
The party’s advisor may otherwise not make statements, challenge relevancy determinations, or otherwise directly participate in the proceedings. The Hearing Officer may remove or dismiss an advisor who becomes disruptive or who does not abide by the limitations on their participation and require the party to use a different advisor.
Neither party is required to participate in the hearing in order for the hearing to proceed. The Hearing Officer cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
A party’s advisor may appear and conduct cross-examination even when the party whom they are advising does not appear. Similarly, when one party does not appear and that party’s advisor of choice does not appear, a UAB-provided advisor will cross-examine the other, appearing party “on behalf of” the non-appearing party.
The Hearing Officer, in his or her sole discretion, will determine the relevance of all cross-examination questions presented. If the Hearing Officer deems the question irrelevant the Hearing Officer must explain the basis for such decision. A question is relevant if it tends to prove or disprove the issue of responsibility. The Hearing Officer’s relevancy decision may not be challenged during the hearing by the parties or their advisors.
Where a cross-examination question or piece of evidence is relevant but concerns a party’s character or prior bad acts, the Hearing Officer cannot exclude or refuse to consider the relevant evidence but may objectively evaluate that relevant evidence by analyzing whether that evidence warrants a high or low level of weight or credibility. The Hearing Officer will not make credibility determinations based on a person’s status as a Complainant, Respondent or witness. Additionally, credibility determinations shall not be based solely on observations of the demeanor of a party or witness when questioned but also on other factors including but not limited to specific details, inherent plausibility, internal inconsistency, and corroborating evidence. A party’s answers to cross-examination questions must be evaluated in context, including taking into account that a party may experience stress while trying to answer questions.
The Hearing Office may not access, consider, disclose, or otherwise use a party’s records maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional which are made and maintained in connection with the provision of treatment to the party unless the party holding such privilege has waived the privilege.
Evidence of the Complainant‘s sexual history or behavior is not relevant if it is offered to prove that the Complainant engaged in other sexual behavior or to prove the Complainant‘s sexual predisposition. Such evidence may be offered to show:
If the Hearing Officer determines that the preponderance of the evidence supports a finding of responsibility under the Title IX Policy, any one or more sanctions may be imposed. In determining appropriate sanction(s), the Hearing Officer may consult the Title IX Coordinator for the purpose of ensuring a particular sanction is feasible, consistent with past practice, and reasonably calculated to end the Policy violation. As part of this determination, the Hearing Officer will be guided by a number of considerations, including:
One or more of the following sanctions actions may be imposed on a student Respondent found responsible for a violation(s) of the Title IX Policy:
Sanctions for non-student Respondents may include formal written warning, suspension without pay (vacation, holiday, or sick time benefits will be paid by UAB during suspension), imposed Probation, reassignment of job responsibilities or duties, mandatory counseling, mandatory attendance at the Employee Assistance Program, demotion, ineligibility to receive raise or promotion, suspension of annual merit increase, decrease in salary, transfer, campus ban/no trespass warning from UABPD, prohibition on further employment at the University, loss of University benefits for retirees, and referral to proper law enforcement authorities for prosecution.
The Hearing Officer will provide the parties with the final hearing decision (“Hearing Outcome Letter”) no later than seven (7) business days after the conclusion of the hearing. The Hearing Outcome Letter must include the following information:
The Hearing Officer will simultaneously issue the “Hearing Outcome Letter” to both the Complainant and the Respondent within seven
(7) business days following the hearing (or such longer time as the Title IX Coordinator (or designee) may for good cause determine). The Hearing Outcome Letter may also identify protective measures implemented with respect to the Respondent or the broader University community. The Hearing Outcome Letter will not disclose any remedial measures provided to the Complainant.
The hearing decision will not be final and, if the Respondent is found responsible, sanctions will not be imposed until the appeal process is completed or the deadline to file an appeal has passed and no appeal was filed.
Both the Complainant and Respondent have a right to seek a review of the dismissal of a Formal Complaint or the Hearing Officer’s decision with regard to a finding of responsibility or non-responsibility and/or the imposed sanctions. Appeals must be submitted to the appropriate Appeals Officer as outlined below:
The Complainant and Respondent have the right to appeal solely on the following grounds:
In any request for an appeal, the burden of proof lies with the party requesting the appeal, because the Title IX Coordinator’s and/or Hearing Officer’s decision will be presumed to have been decided reasonably and appropriately. Appeals are not intended to be a rehearing of the matter. The scope of the appeal will be limited only to the permissible grounds outlined above that have been accepted for review. In most cases, appeals are confined to a review of the written documentation or record of the original hearing and pertinent documentation regarding the grounds for appeal. The Appeals Officer may speak to the Title IX Coordinator, Investigator, the Hearing Officer, or the parties, as appropriate. The Appeals Officer will defer to the original Title IX Coordinator’s and/or Hearing Officer’s decision, making changes to the findings only where there is clear error.
Written requests for appeal must be submitted within three (3) business days following delivery of the notice of the dismissal and/or outcome. Each party may respond in writing to any appeal submitted by the other party. Written responses must be submitted within three (3) business days following delivery of the notice of the written appeal. Written requests for appeal submitted by one party will be shared with the other party.
If the appeal of a Formal Complaint is granted, the Formal Complaint will be reinstated and the Title IX Coordinator will initiate a prompt, thorough, and impartial investigation of Prohibited Conduct in accordance with the Investigation Procedures outlined in Section IV of these procedures. The decision of the Appeals Officer will be final and not subject to further appeal under the Title IX policy.
If the appeal of a Formal Complaint is denied, the matter is closed, and the Title IX Coordinator’s decision stands as final. The Appeals Officer will issue a written decision describing the result of the appeal and the rationale for the result. The appeal decision will be provided simultaneously to both parties no later than fifteen (15) business days after all written responses are received.
If an appeal of a determination of responsibility and/or imposed disciplinary sanction(s) is granted, the Appeals Officer may remand the case to the Hearing Officer and provide instructions regarding the nature and extent of its reconsideration. The Hearing Officer will act promptly to reconsider the matter consistent with those instructions. Following reconsideration, the finding of the Hearing Officer or the sanction imposed by the Hearing Officer will be final and not subject to further appeal under the Title IX policy.
Alternatively, the Appeals Officer may modify the Hearing Officer’s decision and/or sanction in accordance with the Title IX Policy and these procedures.
If the appeal of a determination of responsibility and/or imposed sanction(s) is denied, the matter is closed, and the Hearing Officer’s decision stands as final. 7 The Appeals Officer will issue a written decision describing the result of the appeal and the rationale for the result. The appeal decision will be provided simultaneously to both parties no later than fifteen (15) business days after all written responses are received.
In the event of a determination that the Title IX Policy was violated by an employee, the Hearing Outcome Letter and Appeal decision will be provided to the Dean of the Respondent’s School or College and/or Department Chair (if the Respondent is a faculty member), the Provost (if the Respondent is a Dean), or relevant Vice President and/or appropriate Supervisor (if the Respondent is a staff member or third-party).
After a final determination of a finding of responsibility, in addition to the imposition of sanctions, the Title IX Coordinator will determine what remedies may need to be implemented to restore or preserve equal access to the University’s education program or activity or employment as set forth in the Title IX Policy. The Title IX Coordinator will also identify any appropriate remedies/measures to address any effects of substantiated Prohibited Conduct on the University community.
The University will not recognize or enforce agreements between the parties outside of these procedures. The University will recognize, however, a lawfully issued protective order under Alabama law.
If a student Respondent voluntarily withdraws from the University while a Formal Complaint against him or her is pending, permission for readmission will be considered only after the charges have been resolved.
The Title IX Coordinator and/or the Human Resources Department will maintain for a period of seven (7) years all records related to the following: all Formal Complaints, including the investigation and disposition, any disciplinary sanctions imposed, any remedies provided to the Complainant, any audio or audiovisual recording or transcript of the live hearing, any appeal and results, any information resolution and the results therefrom, and all materials used to train Title IX Coordinators, Deputy Title IX Coordinators, Title IX Investigators, Hearing Officers, and any person who facilities a voluntary informal resolution process.
The date of the record’s creation begins the seven (7) year period. All records maintained pursuant to this provision are considered confidential and subject to applicable state and federal privacy laws.
UAB Enterprise Code of Conduct
Equal Opportunity and Discriminatory Harassment Policy
Duty to Report and Non-retaliation Policy
Policy Concerning Consensual Romantic Relationships
Violence Prevention and Response Policy
Title IX Sex Discrimination, Sexual Harassment, and Sexual Violence Policy
Procedures for Title IX Sexual Discrimination Complaints(non-harassment) Against Faculty, Staff, Affiliates and Non Affiliates
Procedures for Title IX Sex Discrimination Complaints (non-harassment) Against Students
1 For purposes of the University’s Title IX Policy and these Procedures, an “affiliate” includes, but is not limited to, visiting scholars and postdoctoral fellows who are not otherwise classified as UAB faculty, staff, or students.
2 If the Complainant requests such Supportive Measures and if they are reasonably available and do not unreasonably burden the Respondent, they will be provided regardless of whether the Complainant chooses to file a Formal Complaint or refuses to report the crime to campus police or local law enforcement.
3 This includes all hospital clinics regardless of location, including but not limited to, UAB Hospital, The Kirklin Clinic, and UAB Medicine clinics.
4 Evidence of the Complainant‘s sexual history or behavior is not relevant if it is offered to prove that the Complainant engaged in other sexual behavior or to prove the Complainant‘s sexual predisposition. Such evidence may be offered to show:
Prior or subsequent sexual encounters between the Complainant and the Respondent that are offered to prove consent; or That a person other than the Respondent was the source of semen, injury, or other physical evidence
5 If UAB provides a party with an advisor, the party cannot “fire” the assigned advisor during a hearing. If however, the party asserts the assigned advisor is refusing to “conduct cross-examination on the party’s behalf” then UAB will provide the party an advisor to perform that function, whether that means counseling the assigned advisor to perform that role, or stopping the hearing to assign a different advisor. If a party to whom the recipient assigns an advisor refuses to work with the advisor when the advisor is willing to conduct cross-examination on the party’s behalf, then that party has no right of self-representation with respect to conducting cross-examination, and that party would not be able to pose any cross-examination questions
6 Cross-examination is the questioning of a witness called by the other party in the hearing. Direct examination is the questioning of a witness by the party that has called that witness to give evidence in order to support the case that is being made.
7 The appeal is final pursuant to the Title IX Policy and procedures but a Respondent may have additional rights under separate policies and procedures.