EOI & TITLE IX GUIDANCE: June 2022

Misgendering is a form of Sexual Harassment

In preparation for Pride Month in June, Bart Brewer wrote an article for The Portland Tribune May 27, 2022, NAMI: Misgendering can lead to stigma against trans people where he shared that researchers at the University of Massachusetts found that around three-fifths of participants would intentionally misgender those they knew to be trans or non-binary. In addition,  surveys of trans and non-binary persons  have shown that close friends/family would only refer to them by their preferred name 58% of the time.

Beyond stigmatization and marginalization faced by transgender people, there are also mental health effects that misgendering can inflict, including: an increase in anxiety, depression, and stress; low self-esteem and negative body image.

UNF’s Sexual Misconduct and Title IX Sexual Harassment Regulation (1.0050R) specifically lists intentionally misgendering an individual in a manner that is severe or pervasive as behavior that is an example of unwelcome conduct that, when sex-based, may rise to the level of Sexual Harassment and/or Title IX Sexual Harassment. That means that if you intentionally misgender persons at UNF, you can be subjected to an investigation for sexual harassment.

When EOI interviewed transgender employees last year for its June newsletter, we heard that persons who are members of the LGBTQ community feel that pronouns are not "preferred" but rather they use pronouns that are tied to their identity and, for some, this correlates to their self-esteem. 

In an article for healthline.com entitled What Does it Mean to Misgender Someone, author KC Clements states that "for people who are trans, a shift in pronouns is an affirming part of the transition process. It can help a trans person and the people in their lives start to see them as their affirmed gender."

Remember that some Ospreys are not out in all settings and by misgendering them, it could accidentally signal to someone else that they are transgender when they have not decided to share that about themselves yet. Being forced to acknowledge publicly this private part of their lives can increase anxiety and depression. 

At UNF, we want all members of our community to feel welcome and included on campus. If using a different pronoun can make another Osprey feel affirmed, then please use the pronoun they ask you to use. When in doubt, the best thing to do is to use the person’s name or volunteer your pronouns and then ask for theirs. By normalizing the sharing of pronouns and making it a part of your everyday introduction ritual, you can help make transgender and nonbinary Ospreys feel more comfortable and welcome and reduce the stress associated with being misgendered.

Questions and Answers

These are some of the most frequent questions that EOI is asked.

What is Title VII?

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.  This law also makes it illegal to retaliate against a person because the person opposed discriminatory practices, filed a complaint of discrimination, or participated in an employment discrimination investigation.  This law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.   

Who gets copies of the investigative reports you produce?

Complainants and Respondents are both given five (5) business days to review the report and provide any comment before the report is finalized. Once finalized, the Complainant and Respondent are simultaneously notified in writing of the outcome of the investigation and any disciplinary proceeding to be scheduled. 

The final report will be shared with appropriate University officials for further proceedings as necessary. Generally, the report is not shared with third parties who report alleged violations, or witnesses that participate in the investigation   , unless applicable law requires the University to disclose it.

What types of training programs do you offer?

EOI offers a variety of training programs including: EOI and You, UNF Search and Screen Process, Preventing #metoo, Responsible Employee: What does that Mean, and The Marriage of the First Amendment and a Public University. These trainings are offered to assist staff, faculty, and students in being educated about topics regarding discrimination, discriminatory harassment, sexual misconduct, and Title IX sexual harassment. All these topics directly impact the work we do within our office. This includes learning about how to best engage in the search process as a search committee member, how to recognize and prevent sexual harassment, and what to do if an incident of sexual misconduct is reported to you. If EOI does not offer a training program that you believe you or your area can benefit from, please contact our office for a consultation to determine if the desired program can be crafted for you and added to our training portfolio.

Who are confidential employees on campus?

A "Confidential Employee" is an individual who learns of allegations of Sexual Misconduct while working in their counseling capacity, including individuals employed within the University's Women's Center, the Victim Advocacy Program, Student Health Services, the PERCH Program, the Counseling Center, other mental health professionals at the University, and the Ombuds. Individuals supervised by such Confidential Employees are also Confidential Employees themselves. These are the only employees who are not required to report what they discover regarding sexual misconduct to EOI. 

How does UNF define consent?

The term "Consent" refers to the communication of an affirmative, conscious, knowing, and freely made decision by each participant to engage in agreed upon forms of contact or conduct. It is the responsibility of each person involved in any form of contact or conduct to ensure that they have the consent of the other or others. Consent requires an outward demonstration, through understandable words or actions, which conveys a clear willingness to engage in the contact or conduct. Consent cannot to be inferred from silence, passivity, or a lack of resistance, and relying on non-verbal communication alone may result in a violation. 

For example, a person who does not physically resist or verbally refuse sexual or non-sexual contact may not necessarily be giving consent. There is no requirement that an individual verbally or physically resist unwelcome contact for there to be a violation. If a party to sexual activity falls asleep during the sexual activity, they lack the capacity to provide consent to further sexual activity.

Consent cannot be inferred from any existing or previous relationship or encounter (i.e., platonic, dating, or sexual). Even in the context of a relationship, there must be mutual consent to engage in sexual contact for each occasion and each form of sexual contact. Consent to one form of sexual contact does not constitute consent to any other form of sexual contact, nor does consent to sexual contact with one person constitute consent to sexual contact with any other person. Additionally, consent to sexual contact on one occasion is not consented to engage in sexual contact on another occasion. Consent cannot be obtained by coercion or force or by taking advantage of a person's inability to give consent because of incapacitation or other circumstances.

A person who has given consent to engage in sexual contact may withdraw consent at any time. Once consent is withdrawn, the sexual contact must cease immediately. Consent cannot be obtained by force, threat, coercion, manipulation, reasonable fear of injury, intimidation, use of position of influence, or through one's mental or physical helplessness or incapacity. A person who is incapacitated cannot provide consent. Note that generally in Florida, consent cannot legally be given by a minor under the age of 18, with certain specified statutory exceptions. 

What types of supportive measures are available for persons who do not wish to file a formal complaint?

"Supportive Measures” mean non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to Complainant or the Respondent before or after the filing of a Formal Complaint, or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the University's education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University's educational environment, or deter Sexual Misconduct. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.  

How do I appeal the conclusion in an EOI report?

EOI's decision on whether there is, or is not, reasonable cause to believe that a violation of the Regulation has occurred in cases involving a student respondent, or a preponderance of the evidence to demonstrate a violation with non-student respondents, is not subject to a request for reconsideration or appeal. However, as noted above, EOI's investigation process is not a disciplinary process. If new information becomes available to the Complainant or subsequent incidents occur after a complaint is dismissed, the Complainant may submit the additional information for further consideration and/or submit a new complaint. Conversely, if EOI has made an adverse finding, then the affected individual may proceed as outlined below.

For students, the subsequent disciplinary proceeding occurs through the process outlined in the Student Code of Conduct. Within that proceeding, the student has the opportunity to select a hearing process and introduce evidence and witnesses that they believe demonstrate they are not responsible for the alleged violation and/or that the EOI investigatory result is incorrect or not persuasive.

Similarly, faculty and staff may grieve any subsequent discipline through the process outlined in the applicable collective bargaining agreement and/or personnel policy. For all other respondents, discipline will be referred to the Vice President for the responsible area. As with students, all respondents will have the opportunity to present information that they believe demonstrate they are not responsible for the alleged violation and/or that the EOI investigatory result is incorrect or not persuasive.

What happens when someone starts dating someone they supervise?

As stated in the Amorous or Sexual Relationship policy (1.0070P), faculty members, administrators and staff in any type of supervisory or oversight capacity are prohibited from engaging in an amorous, dating or sexual relationship with a student or employee whom they instruct, evaluate, supervise, or advise, or over whom they are in a position to exercise authority such that it would impact their educational or work performance. If a relationship does develop, faculty members, administrators and staff must disclose the existence of their relationship via the Conflict of Interest Disclosure online form available in myWings. The University will manage any potential conflicts of interest created by amorous or sexual relationships where direct authority or the ability to impact the performance of the other individual exists. The University will take these efforts to ensure the integrity of the work and educational environment and may explore the following options:

1. Removing the faculty member, administrator or staff who are in any type of supervisory or oversight authority over the individual with whom they involved in an amorous or sexual relationship from any evaluative decision concerning the other individual.
2. By moving an advisor from his/her involvement as advisor or committee member with an advisee.
3. Relocation of an employee to another supervisory area; or
4. Other action that the appropriate administrators believe resolves the actual or perceived conflict of interest.

The University, in managing actual or perceived conflicts of interest, resulting from amorous or sexual relationships may require time or more decisive efforts to effectively address conflicts of interest that arise from two individuals' involvement in an amorous, dating or sexual relationship where a direct authority relationship exists between the individuals. In such cases, the following may occur:

1. In the case of two employees (including student employees), one or both of the employees may be placed on administrative leave, with or without pay, until a suitable option becomes available to address the actual or perceived conflict of interest.
2. If there is no reasonable option available to address the actual or perceived conflict of interest, one or both employees may be required to separate his/her employment from the University.

INVESTIGATIONS

Total EOI Investigations

Current EOI Investigations 2021-2022

As of May 31, 2022 (includes situational cases)

Note: Cases involving students must be closed by EOI before it can be referred to OSAR.

EOI Office Staff Directory

Director and Title IX Coordinator

Marlynn Jones, Esquire

Marlynn.jones@unf.edu

Title IX and Civil Rights Investigator and Deputy Title IX Coordinator

Fantei Norman

Fantei.norman@unf.edu

EOI Investigator

Leslie Hicks

Leslie.Hicks@unf.edu  

EOI Coordinator

Vacant