New England Conservatory (NEC or the “Conservatory”) is committed to maintaining a safe and healthy educational and work environment in which no member of the NEC community is, on the basis of sex, including sexual orientation or gender identity, excluded from participation in, denied the benefits of, or subjected to discrimination in any NEC program or activity. NEC prohibits all of its community members from engaging in any and all forms of gender-based misconduct. Gender-based misconduct is a broad term which encompasses unwelcome conduct of a sexual nature. This Gender-Based Misconduct Policy is designed to ensure a safe and non-discriminatory educational and work environment and to meet legal requirements, including: relevant sections of the Violence Against Women Reauthorization Act (VAWA); Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex in employment; and Massachusetts laws that prohibit discrimination on the basis of sex, sexual orientation, and gender identity. It does not preclude application or enforcement of other NEC policies.
It is the policy of NEC to provide educational, preventative, and training programs regarding gender-based misconduct; to encourage reporting of incidents; to respond promptly and equitably to gender-based misconduct in a manner that is not deliberately indifferent; to prevent incidents of gender-based misconduct from denying or limiting an individual’s ability to participate in or benefit from NEC’s programs or activities; to offer to the parties supportive measures as appropriate, as reasonably available, and without fee or charge; and to provide prompt and equitable methods of resolution.
Violations of this Policy may result in the imposition of sanctions ranging from an admonition or warning up to, and including, termination, dismissal, or expulsion. The remedies designed to restore or preserve equal access to NEC’s programs or activities may range from course-related adjustments and no contact orders to restrictions on access to campus, campus locations, or campus activities. Retaliation against an individual for making a report or complaint of gender-based misconduct, or for participating or refusing to participate in any proceeding regarding such a complaint, or for opposing discriminatory practices is prohibited.
In August 2020, the federal government updated regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”). These regulations prescribe specific procedures that NEC must follow when addressing formal complaints concerning conduct that falls within the scope and jurisdiction of Title IX. Accordingly, the procedures set forth in NEC’s Title IX Policy will be used to address formal complaints received by the Conservatory which allege conduct that falls within the scope and jurisdiction of the federal Title IX regulations. The scope and jurisdiction of NEC’s Gender-Based Misconduct Policy is more expansive than the scope and jurisdiction of NEC’s Title IX Policy. This Gender-Based Misconduct Policy is intended to address reports alleging that a member of the NEC community has engaged in gender-based misconduct which does not fall within the scope and jurisdiction of the Title IX Policy. Matters that may be addressed under this Policy include complaints filed by individuals who are neither currently affiliated with NEC nor seeking to participate in Conservatory programs or activities; complaints concerning conduct that reportedly occurred in a location outside the United States or where NEC did not exercise substantial control; and alleged gender-based misconduct that does not constitute Prohibited Conduct under Title IX, but which would violate other applicable state and federal laws, such as Title VII of the Civil Rights Act of 1964 or Massachusetts General Laws c. 151 B. Consistent with both NEC’s values and applicable law, NEC’s Gender-Based Misconduct Policy prohibits not only discrimination based on sex, but also discrimination based upon an individual’s gender, gender identity or expression, or sexual orientation.
If NEC receives a complaint alleging that a Respondent engaged in conduct that potentially violates both NEC’s Title IX Policy and other Conservatory policies, including this Gender-Based Misconduct Policy, NEC’s Title IX Coordinator may within their discretion, and in alignment with federal law, choose to resolve some or all of the non-Title IX charges pursuant to the process in NEC’s Title IX Policy and will contemporaneously inform all parties of such determinations. To the extent that additional alleged violations of NEC policies other than gender-based misconduct arise in the context of this Policy, such related allegations may be addressed in accordance with the process in this Policy. The Title IX Coordinator will consult with relevant NEC administrators, such as the Dean of Students and/or Director of Human Resources, in making such a determination and contemporaneously inform all parties of such determinations.
Allegations of gender-based misconduct involving any member of the NEC community should be reported to the Title IX Coordinator :
Katrina Chapman, Title IX Coordinator
PROHIBITED CONDUCT UNDER THE GENDER-BASED MISCONDUCT POLICY
Gender-based misconduct is a broad term which encompasses unwelcome conduct of a sexual nature that is prohibited by the Conservatory. The term gender-based misconduct includes, but is not limited to, gender-related harassment, sex discrimination, sexual harassment, sexual assault, sexual violence, rape, intimate partner abuse, domestic violence, and stalking that does not fall within the scope or jurisdiction of NEC’s Title IX Policy. Gender-Based Misconduct may also include an attempt to engage in Sexual Misconduct as defined by this Policy. Gender-based misconduct affects individuals of all genders, gender identities, gender expressions, and sexual orientation, and does not discriminate by racial, social, or economic background.
Sexual Misconduct as defined by this Policy includes:
- Non-Consensual Sexual Penetration – Any sexual penetration (anal, oral, or vaginal), however slight, with any part of one’s body or with any object, upon another person, without Consent, penetration achieved by the use or threat of force or coercion, or where an individual is incapacitated. Non-consensual penetration includes both situations where a person's body is penetrated without Consent and situations where a person is forced, caused or made, without their Consent, to penetrate another person's body.
- Non-Consensual Sexual Contact – Any intentional touching of a sexual nature, however slight, with any part of one’s body or any object, upon another person, without Consent, or any disrobing of another person without that person’s Consent. This includes, without limitation, non-consensual sexual contact achieved by the use or threat of force or coercion, or where an individual is incapacitated.
- Sexual Exploitation – An act or acts committed through non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or any non-legitimate purpose. Examples include, but are not limited to: observing another individual’s nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; non-consensual streaming of images, photography, video, or audio recording of sexual activity or nudity, or distribution of such without the knowledge and consent of all parties involved; prostituting another individual; knowingly exposing another individual to a sexually transmitted disease or virus without his or her knowledge; and inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.
Intimate Partner Abuse
Any abusive behavior between those who are in or have been in an intimate or romantic relationship with each other (this type of abuse may also be referred to as dating violence, domestic violence, or relationship violence). Abusive behavior may be emotional, psychological, physical and/or sexual, including any behavior that one person in an intimate or romantic relationship uses in order to control the other. Intimate partner abuse or violence may be a single act or a pattern of behavior in relationships. Examples include but are not limited to: acts of violence or physical harm; threats to cause another physical, emotional, or other harm; demeaning or derogatory communications that amount to abusive behavior; preventing contact with family or friends; property damage; threats of violence to one’s self, one’s self, one’s sexual or romantic partner or to the family members or friends of the sexual or romantic partner.
Certain forms of sexual harassment, sexual misconduct, sexual exploitation, stalking, harm to others, emotional and psychological abuse, harassing conduct, and retaliation may all be forms of intimate partner violence when committed by a person who is or has been involved in a sexual, dating or other social relationship of a romantic or intimate nature with the reporting party.
Pregnancy and Lactation Discrimination
NEC prohibits discrimination on the basis of pregnancy or lactation. Individuals that are pregnant, have given birth, or have considerations related to pregnancy and birth (including lactation) may request a reasonable accommodation to enable them to attend school and/or perform their professional responsibilities.
Any unwelcome sexual, sex-based, and/or gender-based verbal, written, online, and/or physical conduct which also falls within the definition of hostile environment harassment and/or quid pro quo sexual harassment.
• Hostile environment sexual harassment exists where harassment is sufficiently severe, persistent, or pervasive, and is objectively offensive such that it unreasonably interferes with, limits or denies someone’s ability to participate in or benefit from the Conservatory’s educational, employment, social, residential, or other programs or activities. In assessing whether conduct is hostile environment sexual harassment, the totality of the circumstances will be considered.
• Quid pro quo sexual harassment exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature, where submission to, or rejection of, such conduct results in adverse educational or employment consequences. Quid pro quo harassment may also exist when an explicit or implicit threat of adverse action or a promise of a benefit is conditioned on submission to, or rejection of, such requests.
• Behaviors that may constitute sexual harassment include but are not limited to:
o Sexual advances, regardless of whether or not they involve physical touching;
o Requesting or demanding sexual favors with respect to employment, academic or other NEC activities; o Lewd or sexually suggestive comments, jokes, gestures, or innuendos;
o Displaying sexually suggestive objects or pictures;
A course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress. This includes cyber-stalking, a particular form of stalking in which electronic media is used to pursue, harass, or make unwelcome contact with another person. Stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.
Acts or attempts to retaliate or seek retribution against individuals who report conduct prohibited by this Policy, assist another in making a report, or participate in an investigation of the report, including the Complainant, Respondent, or any individual or group of individuals involved in the investigation and/or resolution of an allegation. Retaliation includes subjecting a person to an adverse employment or educational action because they made a complaint under any portion of the Gender-Based Misconduct Policy, or responded to, assisted or participated in any manner in an investigation under the Gender-Based Misconduct Policy. Retaliation may also include abuse or violence and other forms of harassment. Any individual or group of individuals, not just a Respondent or Complainant can engage in retaliation.
Retaliation allegations may be consolidated with other forms of prohibited conduct defined in this section if the facts and circumstances significantly overlap. If the facts and circumstances do not significantly overlap, NEC retains discretion to review the allegation under another NEC policy.
Prohibited Sexual Relations with Students
No employee shall request or accept sexual favors from, or initiate or engage in a romantic or sexual relationship with, any student of any status at NEC. Unless specific written permission is provided in extremely limited circumstances to be discussed with NEC’s Human Resources office, this is an absolute prohibition.
Amorous Relationships Between Individuals of Different Conservatory Status
Unless specific written permission is provided in extremely limited circumstances to be discussed with NEC’s Human Resources office, amorous relationships between individuals of different Conservatory status are prohibited.
In a personal relationship between a faculty or staff member and an individual for whom that person has no current professional responsibility, the faculty or staff member may unexpectedly be placed in a position of responsibility for the other person’s instruction or evaluation (e.g. being called upon to write a letter of recommendation or to serve on an admissions or selection committee involving the individual). In addition, relationships between individuals of different Conservatory status can lead to perceptions of inequitable academic or professional advantage. Although graduate students, teaching fellows, tutors, and undergraduate course assistants may be less accustomed than faculty to thinking of themselves as being in a position of greater authority by virtue of their professional responsibilities, they should recognize that they might be viewed as being in a position of authority.
STANDARD OF PROOF
Preponderance of the Evidence. The standard of evidence that NEC uses to determine both students’ and employees’ responsibility for violating this Gender-Based Misconduct Policy and in any allegations of misconduct, including but not limited to claims of discrimination or harassment, is the preponderance of the evidence. This means that in reviewing allegations of Prohibited Conduct, the totality of the evidence will be considered to determine whether the Respondent is more likely than not to have been responsible for a violation of the Gender-Based Misconduct Policy.
- The preponderance of the evidence standard is not the standard used for criminal culpability in most jurisdictions and a determination of responsibility under the Gender-Based Misconduct Policy does not equate with a finding of a violation of criminal laws;
- Conversely, lack of a prosecution, dismissal, or lack of a criminal conviction does not necessarily imply that the Conservatory’s Gender-Based Misconduct Policy was not violated. The two procedures are significantly different and use different standards for determining violations.