††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Revised: 02/18/2014
Prohibition of Discrimination or Harassment††††††††††††††††† UPPS No. 04.04.46
Issue No. 7
Effective Date: 06/29/2012
Review: October 1 E3Y
01.†††††† POLICY STATEMENTS
*01.01 Texas State is committed to an inclusive education and work environment that provides equal opportunity and access to all qualified persons. Texas State, in accordance with applicable federal and state law and institutional values, prohibits discrimination or harassment on the basis of race, color, national origin, age, sex, religion, disability, or veteransí status. Pursuant to university policy, this policy also prohibits discrimination or harassment on the basis of sexual orientation, gender identity, and gender expression.
This UPPS describes reporting procedures for filing discrimination and harassment complaints with the Office of Equity and Access, and the process used to investigate and resolve them.
01.02† Texas State forbids discrimination and harassment in any university activity or program. Faculty members, staff employees, and students who discriminate against or harass others in connection with a university activity or program are subject to disciplinary sanctions.
*02.01 Discrimination is defined as conduct directed at a specific individual or a group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education because of their race, color, national origin, age, sex, religion, disability, veteransí status, sexual orientation, gender identity, or gender expression.
*02.02 Harassment as a form of discrimination is defined as verbal or physical conduct that is directed at an individual or group because of race, color, national origin, age, sex, religion, disability, veteransí status, sexual orientation, gender identity, or gender expression when such conduct is sufficiently severe, pervasive, or persistent so as to the purpose or effect of interfering with an individualís or groupís academic or work performance; or of creating a hostile academic or work environment.
NOTE: Sexual harassment is covered by UPPS No. 04.04.42, Prohibition of Sexual Harassment.
02.03† Respondent: The person reported to have harassed or discriminated against another person.
02.04† Complainant: The person who believes he or she is the victim of discrimination or harassment.
02.05† Equity and Access Investigating Committee (the committee): †A pool made up of seven or more faculty (at least one per college) recommended by the Faculty Senate, three or more students, and six or more staff members (at least one from each division) recommended by the president in consultation with the Faculty Senate, Staff Council and Associated Student Government, as appropriate, with faculty and staff members serving rotating three-year terms.
The committee reviews all pertinent policies and procedures at the University to assure fairness and sensitivity in the way in which protected class (race, color, national origin, age, religion, sex, disability, veteransí status) and sexual orientation issues are addressed; assists the chief diversity officer and director of Equity and Access (CDO) in the investigation of complaints regarding discrimination and harassment, when appropriate; and advises the university on protected class issues.
02.06† Mediation: A form of alternative dispute resolution outside of the universityís formal grievance and complaint processes in which an impartial person, a mediator, facilitates communication between disputing parties to promote reconciliation, settlement, and understanding.
a.†† An employee may request mediation to resolve a discrimination complaint:
††††††††††††††††† 1)†† prior to filing an internal discrimination or harassment complaint, or
2)†† after filing an internal discrimination complaint, but before a decision is made on the case.
††††††††††† b.†† The parties to the dispute must agree to:
††††††††††††††††† 1)†† participate in the mediation;
††††††††††††††††† 2)†† attend the mediation with intent to resolve the complaint; and
††††††††††††††††† 3)†† meet the terms of any mutually-agreed-upon resolution.
c.†† Upcoming mediation will suspend the investigation of a formal complaint pending mediation results. Should mediation not result in resolution, the investigation will resume.
d.†† Mediation is not appropriate for allegations of sexual harassment.
party may contact the Office of Equity and Access or the Office of
02.07† Confidentiality: Limited access or disclosure of sensitive information. The Office of Equity and Access retains information pertaining to complaints filed with its office and will share that information with appropriate university officials involved in the complaint process. The Texas Public Information Act limits access to the information by others. The CDO will keep the information confidential to the extent permitted by the Texas Public Information Act.
02.08† Management Directed Inquiry (MDI): A proactive measure requested by a vice president, dean, director, chair, or department head to address potential personnel concerns regarding discrimination and harassment including sexual harassment without a formal complaint being filed. The Office of Equity and Access conducts an MDI and provides the requesting manager with the results.
03.†††††† PROCEDURES FOR REPORTING INSTANCES OF DISCRIMINATION OR HARASSMENT
03.01† The university encourages its faculty, staff, students and guests who believe they are victims of discrimination or harassment to seek resolution through university-supported informal (see Section 05. below) and formal (see Section 06. below) procedures. The university allows group filing for individuals who believe the same individual discriminated against or harassed them.
03.02† Complainants should report discrimination or harassment either orally or in writing as soon as possible after any incident, but no later than 90 work days following the alleged incident, to any of the following:
a. an academic or administrative official responsible for the unit involved;
b. the immediate supervisor or next higher level manager of the person committing the alleged discriminatory or harassing practices;
c. the dean of Students, if the person making the report or the respondent is a student; or
d. the CDO.
03.03† In reporting the conduct, a third party may accompany the complainant.
04.†††††† RESPONSIBILITIES OF MEMBERS OF THE UNIVERSITY COMMUNITY REGARDING DISCRIMINATION OR HARASSMENT REPORTS
04.01† Vice presidents, deans, directors, chairs, department heads, and supervisors are required to notify the CDO when they learn of a possible instance or allegation of harassment or discrimination. An exception to this general reporting requirement occurs when a faculty member alleges discrimination or harassment as part of a request for a hearing related to the denial of tenure or promotion since, under Regents' Rules, such a faculty member must make this allegation in writing directly to the president. It is a violation of this policy to disregard, fail to investigate or delay investigation of allegations of harassment or discrimination to the extent that action, reporting, or investigation is appropriate or required by one's supervisory position.
04.02† All members of the university community who do not hold a supervisory position are encouraged to notify the CDO when they learn of a possible instance of harassment or discrimination.
04.03† Persons receiving reports of sexual harassment should refer to UPPS No. 04.04.42, Prohibition of Sexual Harassment.
04.04† The university may not dismiss a formal report until it resolves the incident, in accordance with Regentsí Rules, Chapter VII, Section 4.43. If the person decides not to file a formal complaint, the university may still take action, including conducting an MDI.
04.05† If a person knowingly files a false charge against any member of the university community, a contractor, or a visitor to campus, the university may subject that person to disciplinary action under university and Board of Regents policies.
05.†††††† PROCEDURES FOR INFORMAL COUNSELING AND RESOLUTION OF DISCRIMINATION OR HARASSMENT REPORTS
05.01† Because of the sensitive nature of discrimination and harassment, the university will make every reasonable effort to provide informal avenues for counseling and resolution. As part of an informal process, the complainant can receive support and assistance from the CDO.
05.02† The complainant may communicate directly with the person whose conduct is offensive and may bring a third party. Before adopting a direct approach, the complainant may seek advice about how best to approach the respondent. The university encourages students to consult the Counseling Center or the dean of Students; staff and faculty may seek assistance from a supervisor or the CDO. A person who believes he or she is a victim of discrimination:
a.†† may seek direct resolution of the matter through discussions with the respondent.
b.†† may seek to resolve the matter by sending the respondent a letter through the U.S. mail, certified, return receipt requested. The letter should include the following three parts:
††††† 1)†† a factual account of what happened;
††††† 2)†† a description of how the writer feels about what happened; and
††††† 3)†† what the writer wants to happen next, e.g., the behavior to stop.
c.†† If no resolution is forthcoming, the person is strongly encouraged to report the incident or incidents to any university authority identified in Section 03.02. The person who receives the report must notify the CDO as directed in Section 04.01.
05.03† If a direct resolution is deemed inappropriate, the person should seek other informal counseling and resolution with a supervisor, department chair or head, dean of Students, academic dean or advisor, counselor, or the CDO.
a. The person reporting the harassment or discrimination and the recipient of the report may discuss the specifics of the situation and explore possible avenues for informal resolution which may include how to file a formal complaint, if desired (see Section 06).
b. Recipients of the report who are supervisors must consult with the CDO. After consultation with the CDO, the recipient of the report may attempt resolution while maintaining the anonymity of the person reporting the incident. The recipient of the report must take action toward resolution within 30 work days of receiving the report.
c. Following mandatory consultation with the CDO, the supervisor or administrator will base corrective action on a full review of the circumstances.
d. If the supervisor finds harassment or discrimination, a warning or other appropriate action directed toward the respondent may be taken or the respondentís admission of guilt or promise not to commit such a violation again may also suffice as resolution.
e. The supervisor is responsible for notifying the CDO and the parties involved verbally or in writing of the efforts at informal resolution of a harassment or discrimination report.
05.04† If the person claiming discrimination or harassment is dissatisfied with the informal resolution or if the 30 work day timeframe has lapsed without resolution, he or she may file a formal harassment or discrimination complaint in writing with the CDO within 90 work days of the alleged incident† (see Section 06).
06.†††††† PROCEDURES FOR FORMALLY INVESTIGATING REPORTS OF HARASSMENT OR DISCRIMINATION
06.01† A person who wishes to file a formal complaint of discrimination or harassment must notify the CDO by mail, e-mail or facsimile.† Complainants may mail or send by facsimile a signed letter or use the Formal Complaint Form (see Attachment I) within 90 work days of the date of the alleged incident. In the correspondence, please include:
a. The complainantís name, address, and if possible, a telephone number where the CDO may reach the complainant during business hours;
b. Names and, if known, job title, department and contact information about the person or persons alleged to have committed the discriminatory act; and
c. A description of the alleged discriminatory act or acts in sufficient detail to enable the CDO to understand what occurred, when it occurred, and the basis for the alleged discrimination (race, color, national origin, sex, religion, age, disability, veteransí status or sexual orientation).
Email: Complainants may file a complaint using the following e-mail address: email@example.com. Use the same procedures as above.
The CDO will keep the information confidential to the extent permitted by law.
06.02 The CDO will initiate a preliminary investigation of an allegation of discrimination within 60 work days of the receipt of the signed form. This includes providing the respondent with written notification of the complaint in sufficient detail to allow him or her the opportunity to respond, and conducting separate interviews with the complainant and the respondent, as well as other witnesses, if necessary. During the preliminary investigation, the CDO will determine if the complaint has merit. If the complaint does not have merit, the CDO will issue a final report to the complainant, respondent, and the appropriate vice president and close the investigation. If the CDO determines that sufficient evidence exists to warrant further investigation, the CDO, with two members of the Equity and Access Investigating Committee (see Section 02.05), will review the complaint to determine whether a violation has occurred and allow a maximum of 60 additional work days for investigation. From the receipt of the initial signed complaint, the CDO will complete the investigation and render a decision within 120 work days.
06.03† The CDO will:
a. Review all aspects of the complaint.
b. Only investigate reports of harassment or discrimination received per Section 06.01.
c. Ascertain the desired resolution from the complainant.
d. Obtain pertinent information from appropriate witnesses and other sources.
e. Upon request, the TSUS Office of General Counsel will inform the investigating committee of the university's policy for confidentiality in these matters and the possibility of individual liability for defamation.
f. The respondent may use an advisor, including legal counsel for advisory purposes. The advisor may only advise the respondent and may not otherwise participate in the investigation. The TSUS Office of General Counsel will receive notification when an attorney serves as respondentís advisor.
g. If the CDO ascertains that harassment or discrimination has occurred, the CDO will include in the written report, a recommendation that management consult with the Office of Human Resources or Academic Affairs, as appropriate, and the TSUS Office of General Counsel on appropriate corrective actions for employees and the dean of Students for appropriate academic actions for students.
h. If the CDO finds that no harassment or discrimination occurred, the CDO can still determine that the conduct was inappropriate.
i. The CDO will provide a draft report of the findings to the TSUS Office of General Counsel for review. The TSUS Office of General Counsel will have 10 work days in which to review the report.†
j. The CDO, after consultation with the TSUS Office of General Counsel, will issue a final report to the complainant, respondent and the appropriate vice president in the reporting line.
k. The vice president in the respondent's reporting line will resolve the discrimination or harassment issue as soon as possible, but no later than 15 work days after receiving the final written report.
l. The vice presidentís decision is final. The vice president will implement any disciplinary action and will continually monitor the circumstances to ensure a remedied situation.
m. If the respondent receives disciplinary action for the harassment or discrimination, he or she may appeal only the actionís severity through the regular grievance process (see UPPS No. 04.04.41, Staff Employee Mediation, Grievance, and Complaint Policy).
06.04† Texas State prohibits retaliation against a person who, in good faith, files a harassment or discrimination complaint, who assists or participates in the investigation of a report of discrimination or who opposes harassment or discrimination.
07.†††††† ADMINISTRATIVE CLOSURE
07.01† The CDO may administratively close or dismiss a formal discrimination or harassment complaint under the following circumstances:
a. complaint is untimely;
b. complaint is outside the purview of the CDO;
c. complainant files or addresses complaint through another internal complaint process;
d. complainant lacks standing to file a complaint under this policy;
e. university cannot locate complainant;
f. complainant resigns from employment;
g. university approves complainantís request for dismissal;
h. parties negotiate full remedy or settlement is negotiated; or
i. for other reasons identified in applicable laws, regulations, or policies.
NOTE: Administrative closure does not prohibit issues raised in the complaint being reviewed under Section 02.08.
08.†††††† PROCEDURES FOR PUBLICATION AND DISSEMINATION OF THIS POLICY
08.01† The CDO will provide training to all full-time regular employees through brochures, workshops, or other appropriate means, concerning:
a. definitions of harassment and discrimination;
b. examples of incidents of harassment and discrimination;
c. descriptions of how and when to report harassment;
d. descriptions of available informal and formal resolution mechanisms; and
e. sources of support and information for complainants and respondents, as mandated by Texas law.
Chapter 21, Texas Labor Code requires all full-time employees to receive supplemental training biennially. While not required by law, part-time employees may attend the training. Following the training, employees will sign a statement of verification form that the Office of Human Resources will place in their personnel files.
08.02† Deans and heads of administrative units should discuss this policy and issues of harassment and discrimination at meetings of faculty, staff, graduate research assistants, and teaching assistants at least once each year.
08.03† The CDO will discuss this policy in orientation programs for new faculty and staff employees within 30 work days of employment as mandated by Texas Law.
08.04† The CDO will provide training programs for persons who advise and counsel students or respond to crisis situations. These programs will include information about harassment and discrimination (definitions, informal counseling, and formal report procedures).
08.05† The dean of Students, the dean of University College and the dean of the Graduate College will collaborate with the Office of Equity and Access to provide discrimination and harassment awareness and educational programs for students. While the university should direct this educational program toward new undergraduate and graduate students, it should not restrict it to them.
09.01† The university may impose the following sanctions for violation of this policy:
a. for faculty or staff, disciplinary action up to and including termination of employment;
b. for students, disciplinary action up to and including dismissal from the university;
c. for contractors, cancellation of their contract with Texas State or other appropriate action.
10.01† If this policy conflicts with any policy, rule or regulation at the university including procedures and policies found in the Faculty Handbook, the grievance and appeals policy in the Staff Handbook, or the Code of Student Conduct, this discrimination and harassment prohibition policy shall take precedence.
11.†††††† REVIEWERS OF THIS UPPS
11.01† Reviewers of this UPPS include the following:
Chief Diversity Officer and†††††††††††††††††††††††† October 1 E3Y †††
Director of Equity & Access
TSUS Office of General Counsel†††††††††††† October 1 E3Y
Chair, Staff Council††††††††††††††††††††††††††††††††††† October 1 E3Y
Chair, Faculty Senate†††††††††††††††††††††††††††††††† October 1 E3Y
Associate Vice President and†††††††††††††††††† October 1 E3Y
Dean of Students
Co-Chairs, Presidentís Council††††††††††††††† October 1 E3Y
12.†††††† CERTIFICATION STATEMENT††††††††††††
This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.
Chief Diversity Officer and Director of Equity and Access; senior reviewer of this UPPS
Special Assistant to the President