Prohibition of Sexual Harassment UPPS No. 04.04.42

Issue No. 5

Effective Date: 06/29/2012

Review: October 1 E3Y

01. POLICY STATEMENTS

01.01 It is university policy that no faculty, staff, student, or contractor will sexually harass another member of the university community or visitor to the university. The university will not tolerate sexual harassment, whether it occurs on or off campus. Any faculty, staff, or student who violates this policy will face disciplinary action; a contractor may face loss of contract or other sanctions.

01.02 Sexual harassment violates:

a. academic ethics (National Education Association, 1991 resolution; American Association of University Professors, policy adopted June 1990);

b. state law (Texas Penal Code section 39.03);

c. federal law (Title VII, Section 703, Civil Rights Act of 1964; and Title IX, Section 106.31, Education Amendments of 1972);

d. Rules and Regulations of the Board of Regents of The Texas State University System, Chapter VII, Section 4.4; and

e. contractual agreements that require the contractor to comply with all state and federal laws, including those cited above.

02. EXAMPLES

02.01 Sexual Harassment: The Equal Employment Opportunity Commission’s amended “Guidelines on Discrimination Because of Sex” (29 C.F.R. 1604.11[a]) and the Rules and Regulations of the Board of Regents of The Texas State University System, Chapter VII, Section 4.4.1, define sexual harassment as: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

a. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or academic career;

b. submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting the individual; or

c. such conduct has the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile or offensive employment or academic environment.

02.02 Behaviors, if sufficiently offensive, severe, or pervasive, that may constitute sexual harassment include:

a. intentional and unwelcome touching of a sexual nature;

b. explicit or implicit propositions to engage in sexual activity;

c. gratuitous comments of a sexual nature such as explicit statements, questions, jokes, anecdotes or remarks of a sexual nature about a person's clothing or body;

d. remarks about sexual activities or speculation about sexual experiences;

e. exposure to gratuitous sexually suggestive visual displays such as photographs, graffiti, posters, calendars, or other materials;

f. deliberate physical interference with or restriction of an individual's movements;

g. persistent, unwanted sexual or romantic attention;

h. subtle or overt pressure for sexual favors; or

i. deliberate, repeated humiliation or intimidation that is sexual in nature.

02.03 A Reasonable Person: Texas State intends that its sexual harassment policy comply with all state and federal law. Accordingly, Texas State will judge sexual harassment claims based on an intimidating, hostile, or offensive employment or academic environment from the perspective of a reasonable person in the complainant’s position. In order to violate university policy, the conduct must be substantively and objectively offensive, severe, or pervasive.

02.04 Inappropriate Conduct: In addition to prohibiting sexual harassment as defined by law, the university strongly advises against any unprofessional or inappropriate conduct of a sexual nature in workplace and teaching locations, even that which is not so serious or pervasive that it rises to the level of sexual harassment. Even if conduct does not violate policy, investigation of these complaints may find the conduct inappropriate, resulting in remedial action.

02.05 Confidentiality: Limited access or disclosure of sensitive information. The Office of Equity and Access retains information pertaining to complaints and may share that information with appropriate university officials involved in the complaint process. The Texas Public Information Act limits access to the information. The chief diversity officer (henceforth, CDO) will keep the information confidential to the extent permitted by the Texas Public Information Act.

02.06 The Equity and Access Investigating Committee: The Equity and Access Investigating Committee (the committee) consists of a pool of members, some of which will serve on individual investigating committees. 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 will make up the pool and serve rotating three-year terms.

02.07 Management Directed Inquiry (MDI): A proactive measure requested by a vice president, dean, director, chair, or department head to address potential personnel concerns regarding sexual harassment before any individual files a complaint. The Office of Equity and Access conducts an MDI and provides the results to the requesting manager.

03. CONSENSUAL RELATIONSHIPS

03.01 Sexual Harassment and Conflicts of Interest Arising from Consensual Relationships

a. The issues of conflict of interest and sexual harassment may arise between two persons in a consensual relationship when one is in a position to supervise or evaluate the other. The exercise of power through praise or criticism, performance evaluations, grades, or recommendation for further study or current and future employment may diminish freedom of choice for a student or subordinate.

b. For example, a subordinate or student in a relationship, who freely consents in the beginning, may construe the relationship as sexual harassment if he or she feels pressure to continue the relationship.

c. Persons in positions of authority should exercise sensitivity to the potential for sexual harassment and conflicts of interest in personal relationships with subordinates (refer to UPPS No. 04.04.39, Consensual Relationships).

d. This policy may cover complainants that perceive these cases as sexual harassment.

04. PROCEDURES FOR REPORTING INSTANCES OF SEXUAL HARASSMENT

04.01 The university encourages faculty, staff, students and guests who believe that an individual sexually harassed them or are aware of possible sexual harassment to seek resolution through informal (see Section 06. below) or formal (see Section 07. below) university procedures. If several individuals believe the same individual sexually harassed them, they should report the incident and have the option to file as a group.

04.02 Individuals should report sexual harassment orally or in writing, as soon as possible, but no later than 90 work days from the date of the alleged incident to any of the following:

a. an academic or administrative official responsible for the unit involved;

b. the immediate supervisor of the alleged harasser or the next higher management level if the person is an employee;

c. the dean of Students, if the person making the report or the alleged harasser is a student; or

d. the CDO.

04.03 For support, a third party may accompany the person reporting the conduct.

04.04 Persons who believe themselves victims of sexual harassment should document all relevant events, incidents, and communications. Documentation may include the alleged harasser’s name, the date and nature of the incident, why the person considered the incident possible sexual harassment, and witnesses’ names.

05. RESPONSIBILITIES OF MEMBERS OF THE UNIVERSITY COMMUNITY REGARDING SEXUAL HARASSMENT REPORTS

05.01 Vice presidents, deans, directors, chairs, department heads, and supervisors are required to notify the CDO when they learn of a possible instance of sexual harassment. Disregarding, failing to investigate, or delaying the investigation of allegations of sexual harassment violates this policy.

05.02 The university encourages all university community members not holding a supervisory position to notify the CDO when they learn of a possible instance of sexual harassment.

05.03 Persons receiving reports of sexual harassment should: (1) consider them confidential; (2) disclose them only to authorized persons; and (3) handle them expeditiously.

05.04 Once an individual reports an incident, the university may not dismiss it before resolution, in accordance with Regents' 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.

05.05 If a person knowingly files a false charge against any university community member, a contractor or a visitor to campus, the university may subject that person to disciplinary action under applicable university and Board of Regents policies.

06. PROCEDURES FOR INFORMAL COUNSELING AND RESOLUTION OF SEXUAL HARASSMENT REPORTS

06.01 Because of the sensitive nature of sexual 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.

06.02 As one method of informal resolution, a person who believes sexual harassment has occurred may communicate with the alleged harasser directly, and may bring a third party. Students should consult the Counseling Center or dean of Students before confronting the alleged harasser. Staff and faculty should first seek assistance from a supervisor or the CDO. A person who believes themselves a victim of sexual harassment:

a. may seek direct resolution of the matter through discussions with the alleged harasser.

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, for example, the behavior to stop.

c. If direct communication with the alleged harasser does not result in resolution, the person should report the incident or incidents to any university authority identified in Section 04.02. The person who receives the report must notify the Office of the CDO and Director of Equity and Access as indicated in Section 05.

06.03 If direct resolution is inappropriate, a 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 sexual harassment and the recipient of the report may discuss the specifics of the situation and explore possible avenues for informal resolution that may include how to file a formal complaint, if desired (Section 07).

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 sexual harassment did occur, a warning or other appropriate action directed toward the respondent may be taken or the respondent’s admission of guilt or promise not to commit such a violation again may also suffice as resolution. The supervisor shall follow up with the person reporting the sexual harassment in 30 work days to ensure that the alleged harasser has indeed stopped the harassment.

e. The supervisor is responsible for notifying the CDO and both parties of the results of the efforts at informal resolution of a sexual harassment report.

06.04 If the informal resolution does not satisfy the complainant, or if the 30 work day timeframe has lapsed without resolution, the university encourages the complainant to file a formal sexual harassment complaint with the CDO within 90 work days of the alleged incident (see Section 07).

07. PROCEDURES FOR FORMALLY INVESTIGATING REPORTS OF SEXUAL HARASSMENT

07.01 A person who wishes to file a formal complaint of sexual harassment must notify the CDO by mail, email 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 complainant’s name, address, and if possible, a telephone number where the CDO can 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 incident in sufficient detail to enable the CDO to understand what occurred and when it occurred.

Email: Complainants may file a complaint using the following e-mail address: equityaccess@txstate.edu. Use the same procedures as above.

The CDO should keep the information confidential to the extent permitted by law.

07.02 The CDO will initiate a preliminary investigation of an allegation of sexual harassment within 60 work days of the receipt of the signed form. This includes providing the alleged harasser with written notification of the complaint in sufficient detail to allow him or her the opportunity to respond, separate interviews with the person reporting the harassment and the alleged harasser, 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, the 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 02.06), 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.

07.03 The CDO will:

a. Review all aspects of the complaint.

b. Only investigate reports of sexual harassment received per Section 07.01.

c. Ascertain the desired resolution from the person reporting the harassment.

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 confidentiality policy in these matters and the possibility of individual liability for defamation.

f. The alleged harasser may use an advisor, including legal counsel for advisory purposes. The advisor may only advise the alleged harasser and may not otherwise participate in the investigation. The TSUS Office of General Counsel will receive notification when respondent selects an attorney as an advisor.

g. If the CDO determines that sexual harassment 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 sexual harassment 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 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 alleged harasser’s reporting line will resolve the sexual harassment issue as soon as possible, but no later than 15 work days after receiving the final written report. The vice president will implement any disciplinary action and will monitor the circumstances to ensure a remedied situation. The vice president’s decision is final.

l. The alleged harasser may appeal only the severity of the disciplinary action through the regular grievance process (see UPPS No. 04.04.41, Staff Employee Mediation, Grievance, and Complaint Policy).

m. Other actions taken may include:

1) The supervisor of the person determined to have engaged in inappropriate behavior or the dean of Students will inform the person about the impropriety of his or her actions in consultation with the CDO.

2) Issue an oral warning following the filing of a second formal complaint.

3) Issue a written warning following the filing of a third complaint.

07.04 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.

08. ADMINISTRATIVE CLOSURE

08.01 The CDO may administratively close or dismiss a formal sexual 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 complainant’s 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 02.07.

09. PROCEDURES FOR PUBLICATION AND DISSEMINATION OF THIS POLICY

09.01 The CDO will provide training to all full-time regular employees through brochures, workshops, and other appropriate means, concerning:

a. definitions of sexual harassment;

b. examples of incidents of sexual harassment;

c. descriptions of how and when to report sexual harassment;

d. descriptions of available informal and formal resolution mechanisms; and

e. sources of support and information for victims and respondents, as mandated by Texas law.

All full-time employees are required by Chapter 21, Texas Labor Code 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 Human Resources will place in their personnel files.

09.02 Deans and heads of administrative units should discuss this policy and issues of sexual harassment at meetings of faculty, staff, and teaching assistants at least once each year.

09.03 The CDO will discuss this policy in orientation programs for new faculty and staff employees within 30 work days of beginning employment, as mandated by Texas law.

09.04 The CDO will provide training programs for persons who advise and counsel students or respond to crisis situations. These programs will include information about sexual harassment (definitions, informal counseling, and formal report procedures).

09.05 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 sexual 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.

09.06 The university will summarize this policy in the Faculty Handbook, the Staff Handbook, and the Student Handbook.

10. SANCTIONS

10.01 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; and

c. for contractors, cancellation of their contract with Texas State or other appropriate action.

11. CONFLICTS

11.01 If this policy conflicts with any other 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 sexual harassment prohibition policy shall take precedence.

12. REVIEWERS OF THIS UPPS

12.01 Reviewers of this UPPS include the following:

Position Date

Chief Diversity Officer and October 1 E3Y

Director of Equity and Access

TSUS Office of General Counsel October 1 E3Y

Associate Vice President and October 1 E3Y

Dean of Students

Chair, Staff Council October 1 E3Y

Chair, Faculty Senate October 1 E3Y

Co-Chairs, President’s Council for October 1 E3Y

Women

13. 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

President