Sexual Violence & Sexual Harassment

Every member of the Lab community should be aware that the Lab prohibits, in accordance with the University of California (UC) and the Lab’s Sexual Violence and Sexual Harassment policy (SVSH), and state and federal laws: sexual harassment, sexual assault, domestic violence, dating violence, and stalking. 

In addition to our Sexual Violence and Harassment prevention policies, our Lab community is responsible for reporting conduct that would be considered crimes or a risk to safety occurring in connection to our location and our programs. Please refer to the list of conduct on the University of California’s website, and view the Clery Act Policy and Clery Crime Definitions. 

Anyone at any time can file a report, including anonymously, through the UC Reporting Form for Harassment and Discrimination.  

Reporting enables the Lab to address and prevent harm to impacted employees. Lab employees are mandated reporters who are responsible for reporting policy violations, including workplace sexual harassment. 

Upon receipt of a report of alleged Prohibited Conduct, OPHD will make an initial assessment in accordance with the SVSH Policy, including an immediate assessment concerning the health and safety of the complainant and the Lab community. OPHD will consider and implement Supportive Measures, including Interim Measures, as appropriate to protect the safety of the parties or the Lab community; to restore or preserve a party’s access to a program or activity; or to deter Prohibited Conduct per the SVSH Policy. Thus, when appropriate, Investigatory Leave of a respondent may be imposed.  

OPHD will ensure that the complainant, if their identity is known, is provided a written explanation of their rights and available options, as outlined in the SVSH Policy. Throughout the resolution process, the complainant and the respondent may be accompanied by an advisor. In addition, the Lab will offer to provide support services for the parties, including language services and/or disability-related accommodations as necessary. 

Consistent with the SVHS Policy the Investigation and Adjudication Framework for Staff and Non-Faculty Academic Personnel describes the UC and the Lab's process for investigating and adjudicating alleged violations of the SVSH Policy in instances where the respondent is either an employee or non-faculty appointee. Please note that the sections regarding Hearings do not apply to the Lab, as the Lab is not an academic UC campus. 

Provided that OPHD has sufficient information to respond to a report, OPHD may resolve reports of alleged Prohibited Conduct through Alternative Resolution or Formal Investigation. Alternative Resolution is successful when both the complainant and respondent agree to the terms in writing. If Alternative Resolution is deemed inappropriate or unsuccessful, then a Formal Investigation will be conducted.  A Formal Investigation is typically completed within sixty (60) to ninety (90) days of the initiation of the Formal Investigation, unless there is a legitimate reason for an extension. 

When a Formal Investigation is chosen, OPHD will send a written notice of the charges to both the complainant and the respondent, and will designate an investigator to conduct a fair, thorough, and impartial investigation. The complainant and respondent will be provided an equal opportunity to meet with the investigator, submit information, identify witnesses who may have relevant information, and propose questions for the investigator to ask the other party and witnesses. Disclosure of facts to persons interviewed will be limited to what is reasonably necessary to conduct a fair and thorough investigation. Before the investigator concludes the investigation and finalizes a written report, both the complainant and respondent will have an equal opportunity to review and respond in writing to the evidence that the investigator has deemed directly related, including evidence that weighs against finding a policy violation(s). 

In conclusion of the investigation, OPHD will prepare a written investigation report, including a statement of the allegations and issues, statements of the parties and witnesses, and a summary of the evidence the investigator considered. The investigation report will include findings of fact and the preponderance of the evidence standard will be used to a determine if there is sufficient evidence to conclude that the respondent violated the SVSH Policy. Upon finalization of the investigation report, OPHD will send the complainant and the respondent a written notice of  the investigation outcome regarding whether there was a violation of the SVSH Policy. The notice of investigation outcome will generally be accompanied by a copy of the investigation report, which may be redacted as necessary to protect privacy rights. The complainant and the respondent will have an opportunity to respond to the notice of investigation outcome and accompanying investigation report through a written statement and/or in-person meeting. The purpose of the response is not to challenge the factual findings in the investigation report or present new evidence, but to provide the complainant and the respondent with an opportunity to express their perspectives and address what outcome they wish to see. 

At the conclusion of a Formal Investigation, the respondent’s supervisor or other appropriate administrative authority has the responsibility to propose and implement action in response to the findings of the investigation report. Employee conduct is governed by Personnel Policies for Staff Members and subject to disciplinary and termination procedures set forth in Corrective Action – Professional and Support Staff  and Termination and Job Abandonment . Non-faculty academic appointees are subject to disciplinary procedures under the Academic Personnel Manual: Non-Senate Academic Appointees/Corrective Action and Dismissal. 

People who have experienced Prohibited Conduct may speak confidentially with a Confidential Resource. 

The UC and the Lab offer access to confidential resources for individuals who have experienced Prohibited Conduct and are seeking counseling, emotional support, or confidential information about how to make a report. Everyone is encouraged to consult a confidential resources about their options. Confidential Resources need not report information they receive while acting in their confidential capacity. Disclosures to Confidential Resources while they are acting in their confidential capacity are not “reports” under the SVHS Policy. 

Confidential Resources include professionals with a license requiring them to maintain confidentiality, such as staff in Counseling and Psychological Services, and the Employee Assistance Program (EAP).  

Supportive Measures can include Interim Measures such as services, accommodations, or other measures put in place temporarily to assist or protect the Complainant, the Respondent, or the UC and Lab community. The goal is to restore or preserve a party’s access to a program or activity; or deter prohibited conduct. The Interim Measures may change or terminate depending on the parties’ evolving needs, as assessed by OPHD or they may become permanent as part of the resolution of a grievance. 

Examples of supportive measures that OPHD can help with include, but are not limited to:

• non-contact directives which direct an individual community member to have no direct or indirect contact with another individual community member;

• changes in work schedule, workstation, work location, unit, department, or position; and

• referral to the Employee Assistance Program. 

The SVHS policy addresses the Lab's responsibilities and procedures related to sexual violence, sexual harassment, retaliation, and other prohibited behavior as those terms are defined in this Policy (together, “Prohibited Conduct”) in order to ensure an equitable employment environment. 

The Policy defines Prohibited Conduct and explains the administrative procedures used to resolve reports of Prohibited Conduct. Examples of Prohibited Conduct include: Sexual Violence, Relationship Violence, Stalking, Sexual Exploitation, Sexual Harassment, and Invasion of Sexual Privacy.

Consent is affirmative, conscious, voluntary, and revocable. 

Consent to sexual activity requires of each person an affirmative, conscious, and voluntary agreement to engage in sexual activity. Lack of protest, lack of resistance, or silence do not, alone, constitute consent. 

It is the responsibility of each person to ensure they have the affirmative consent of the other to engage in the sexual activity. Affirmative consent must be ongoing and can be revoked at any time during sexual activity. 

The existence of a dating relationship or past sexual relations between parties will never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationship alone suffice as evidence of consent to prior conduct). 

Sexual Violence includes (1) Sexual Assault with Penetration; (2) Sexual Assault with Contact; (3) Relationship Violence; (4) Stalking; and (5) Sexual Exploitation.

1. Sexual Assault with Penetration is when penetration, no matter how slight is non consensual including:

• a person's mouth by genitalia, or 

• a person's vagina or anus by any body part or object. 

2. Sexual Assault with Contact is when without consent:

• a person intentionally touches another person's intimate body part; 

• a person makes another person touch themselves or others on an intimate body part; or

• a person touches another person with their intimidate body part regardless if the intimate body part is clothed or unclothed. 

3. Relationship Violence is dating violence and domestic violence that includes: 

• physical violence; or  

• intentional or reckless physical or non-physical conduct that would make a reasonable person fear physical violence. 

The physical violence or conduct can be towards an individual or a person that has close relationship with that individual such as current or former spouse, intimate partner, a child, or relative. Physical violence is physical conduct that intentionally or recklessly threatens the health and safety of the recipient of the behavior, including assault. Patterns of abusive behavior may consist of or include non-physical tactics (such as threats, isolation, property destruction, abuse of pets, economic control, displaying weapons, degradation, or exploitation of a power imbalance).

4. Stalking is repeated conduct directed at a person of a sexual, romantic or other sex-based nature or motivation that:

• includes following, monitoring, observing, surveilling, threatening, communicating or interfering with property); and

• would cause a reasonable person to fear for their safety, or the safety of others, or to suffer substantial emotional distress. 

5. Sexual Exploitation is taking sexual advantage of another including:

• trafficking or prostituting of another without their consent:;

• inducing a person to perform a commercial sex act through force, fraud, or coercion, or where the person is under the age of 18; 

• knowingly making a material false representation about sexually transmitted infection, birth control, or prophylactic status with the specific intent and effect of inducing a person to participate in a specific sexual act or encounter; 

• providing alcohol or drugs to a person with the specific intent and effect of facilitating Prohibited Conduct;  or

• actively facilitating or assisting another person in committing Prohibited Conduct. 

Sexual Harassment includes both Quid Pro Quo and Hostile Environment, as defined below. 

1. Quid Pro Quo: a person’s submission to unwelcome sexual conduct is implicitly or explicitly made the basis for employment decisions, advancement, or other decisions affecting participation in a Berkeley Lab program or activity. 

2. Hostile Environment: unwelcome sexual or other sex-based conduct is sufficiently severe, persistent or pervasive that it unreasonably denies, adversely limits, or interferes with a person’s participation in or benefit from Berkeley Lab employment or other programs or activities, and creates an environment that a reasonable person would find to be intimidating or offensive. 

Sexual conduct includes: 

• sexual or romantic advances; 

• requests for sexual favors; and

• other verbal, nonverbal, or physical conduct of a sexual nature. 

Other sex-based conduct includes:

• acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation. 

Note: Consideration is given to the totality of the circumstances in which the conduct occurred. 

Invasions of Sexual Privacy includes:

• without a person’s consent, watching or enabling others to watch that person’s nudity or sexual acts in a place where that person has a reasonable expectation of privacy; 

• without a person’s consent, making or attempting to make photographs (including videos) or audio recordings, or posting, transmitting or distributing such recorded material, depicting that person’s nudity or sexual acts in a place where that person has a reasonable expectation of privacy; 

• using depictions of nudity or sexual activity to extort something of value from a person; or 

• threatening to post or share depictions of nudity or sexual activity unless a person takes a particular action.

Other Prohibited Behavior includes:

• sexual intercourse with a person under the age of 18; 

• exposing one’s genitals in a public place for the purpose of sexual gratification;

• failing to comply with the terms of a no-contact order, a suspension of any length, or any order of exclusion issued under this Policy; or

• engaging in Retaliation. 

Retaliation is an adverse action against a person based on their report or other disclosure of alleged Prohibited Conduct to an employee, or their participation in, refusal to participate in, or assistance with the investigation, reporting, remedial, or disciplinary processes provided for in this Policy. 

An adverse action is conduct that would discourage a reasonable person from reporting Prohibited Conduct or participating in a process provided for in this Policy, such as threats, intimidation, harassment, discrimination and coercion. Good faith actions lawfully pursued in response to a report of Prohibited Conduct (such as gathering evidence) are not, without more, retaliation. 

Berkeley Lab is committed to training all Lab employees on the prevention of Sexual Violence and Sexual Harassment. 

All Berkeley Lab employees are required to complete the UC Sexual Violence and Sexual Harassment Prevention for Non-Supervisors training. 

All Berkeley Lab supervisors are required to complete the UC Sexual Violence and Sexual Harassment Prevention for Supervisors, Faculty and MSP  training.

Topics include:

• Recognize sexual harassment, sexual violence, and other prohibited behavior

• Prevent harm before, during and after incidents

• Respond: identify roles and processes for reports

• Resources: seek services, confidential resources, and assistance to help you navigate

• Supervisor: roles and responsibilities

These courses meet the requirements of 2 CCR 11024, California Government Code 12950.1, AB 1825/2053, 34 CFR 668.46 Violence Against Women Act, and UC Policy on Sexual Violence and Sexual Harassment, Abusive Conduct, and Anti-Discrimination.