Prohibition of Sexual Harassment                                                                                                              UPPS No. 04.04.42
Issue No. 3
Effective Date: 12/15/2004
Review: October 1 E4Y

                                                                                                                                                                        Attachment I, II

 

 

01.       POLICY STATEMENTS

 

01.01  It is the policy of the University that no faculty, staff, student, or contractor may sexually harass any guest or visitor to the campus or any member of the university community, including faculty, staff, students and candidates for University positions, and that such acts will not be tolerated either at Texas State or other university programs off campus. Any faculty, staff, or student will be subject to disciplinary action for violation of this policy; a contractor may face loss of contract.

 

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.   Texas State University System Regents' Rules, Chapter VII, Section 4.4.

 

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

 

02.       RATIONALE

 

02.01  It is Texas State's policy to provide faculty, staff, students and members of the public visiting Texas State University-San Marcos a work place and educational environment free of sexual harassment and intimidation.

 

Texas State believes that members of the university community have the right to learn, work and live in a civil, supportive and professional atmosphere. Sexual harassment violates this right. It creates a formidable barrier to the free exchange of ideas; damages the integrity of the work place; and deprives the institution of productivity, a sense of community and a positive image.

 

03.       DEFINITIONS AND EXAMPLES

 

The following definition is based on of the Equal Employment Opportunity Commission's amended "Guidelines on Discrimination Because of Sex" (29 CFR 1604.11[a]).

 

03.01    This definition is also taken from the Rules and Regulations of the Board of Regents, Texas State University System, in Chapter VII, Section 4.4.1. Sexual harassment is defined 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. Texas State intends that its sexual harassment policy be coextensive with state and federal law. Accordingly, sexual harassment based on an intimidating, hostile, or offensive employment or academic environment must be judged from the perspective of a reasonable person in the complainant’s position. Such conduct must be objectively offensive, severe, and pervasive in order to violate university policy.

 

The wording here is taken from Texas State's Regents' Rules, Section 4.4.1. The EEOC and Regents' Rule definitions differ only in the addition of specific references to "academic career," "academic decisions," "academic environment" in the Regents' Rules.

 

03.02    Sexual harassment takes many forms and may involve a staff or faculty member, administrator, contract employee or student. A brochure has been developed (see Attachment I) to provide thorough information and examples of sexual harassment. This brochure is available from the Office of Equity and Access.

 

03.03  Consensual Relationships

 

a.   Issues of professional responsibility, conflict of interest and sexual harassment may arise when a difference in authority is present between two persons involved in a consensual relationship. Freedom of choice for a student or subordinate may be diminished when faculty or staff exercise power through praise or criticism, performance evaluations, grades, and recommendations for further study or current and future employment.

 

b.   An example of a relationship that may be construed as sexual harassment is a situation where the subordinate or student in the relationship, while freely consenting in the beginning, feels pressure to continue the relationship.

 

c.   Staff and faculty in positions of authority need to be sensitive to the potential for sexual harassment as well as conflicts of interest in personal relationships with subordinate faculty and staff members or with students (Refer to UPPS No. 04.04.39, Consensual Relationships).

 

d.   A complainant may perceive these cases as sexual harassment; when so perceived, they may be covered under this policy.

 

04.       PROCEDURES FOR REPORTING INSTANCES OF SEXUAL HARASSMENT

 

04.01  Faculty, staff, students and guests of the University who believe that they have been sexually harassed or are aware of instances of possible sexual harassment have the right and are encouraged to seek resolution through informal or formal procedures supported by the University. Persons who believe they have been sexually harassed by the same person should be able to report and file as a group.

 

04.02  Reports of sexual harassment should be made, orally or in writing, as soon as possible after any incident.

 

04.03  A person who believes in good faith that he or she has been sexually harassed as defined in this policy should report the conduct to any or all 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 Office of Equity and Access.

 

04.04  In reporting the conduct, the person may be accompanied by a third party for support.

 

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 Office of Equity and Access when they learn of a possible instance of sexual harassment. It is a violation of this policy to disregard, fail to investigate, or delay investigation of allegations of sexual harassment.

 

05.02  All members of the university community who do not hold a supervisory position are urged to notify the Office of Equity and Access 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 a report has been made, the University may not dismiss it until it has been resolved, 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.

 

05.05  A person who knowingly files a false or malicious charge against any member of the university community, a contractor or a visitor to campus may be subject to disciplinary action under applicable University and Board policies.

 

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

 

06.01  Because of the sensitive nature of sexual harassment, every reasonable effort should be made to provide informal avenues for counseling and resolution. As part of an informal process, the complainant can receive support and assistance from the Office of Equity and Access. Records of corrective actions are not maintained in informal resolution.

 

06.02  As one method of informal resolution, a person who believes he or she has been sexually harassed may communicate with the alleged harasser directly, and may bring a third party. Before adopting a direct approach, the person may need to seek advice about how best to confront a person whose conduct is offensive. Students are encouraged to consult the Counseling Center; staff and faculty are encouraged to seek assistance from a supervisor or the Office of Equity and Access.

 

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

 

b.   Persons may seek a resolution of the matter by sending to the alleged harasser a certified, return request letter through the US Postal Service. 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, i. e., 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 04.03. The person who receives the report must notify the Office of Equity and Access as indicated in Section 05.01.

 

06.03  If a direct resolution is deemed inappropriate, a person should seek other informal counseling and resolution with a supervisor, department chair/head, dean or advisor, counselor, and the Office of Equity and Access.

 

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 which may include how to file a formal complaint, if desired. See Section 07.

 

b.   The recipient of the report should attempt resolution while endeavoring to maintain the anonymity of the person reporting the incident. Supervisors must consult with the Office of Equity and Access. Any action toward resolution must be taken within 30 days of the receipt of the report.

 

c.   Before any corrective action is taken, the supervisor or administrator must consult with the Office of Equity and Access. Corrective actions will be based on a full review of the circumstances.

 

d.   If sexual harassment is found, an admission of guilt, a warning, a promise not to commit such an abuse again or other appropriate action directed toward the harasser may be sufficient resolution.

 

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

 

06.04  If the person reporting the harassment is not satisfied with the informal resolution or if the 30-day timeframe has lapsed without resolution, he or she is encouraged to file a formal sexual harassment complaint in writing with the Office of Equity and Access. See Section 07.

 

07.             PROCEDURES FOR FORMALLY INVESTIGATING AND DISPOSING OF REPORTS OF SEXUAL HARASSMENT

 

07.01  A person who wishes to file a formal complaint of harassment must notify the Office of Equity and Access. The complainant must complete and sign the appropriate forms (see Attachment II). Every attempt should be made to keep the information confidential.

 

07.02    The Office of Equity and Access will conduct a preliminary investigation of an allegation of sexual harassment within 30 days of the receipt of the signed form. This includes separate interviews with the person reporting the harassment and the alleged harasser, as well as other witnesses, if necessary. During the preliminary investigation, the Office of Equity and Access will determine if the complaint has merit. If the complaint is found not to have merit, the Office of Equity and Access will issue a final report and the investigation is closed. If the Office of Equity and Access determines that sufficient evidence exists to warrant further investigation, the Office of Equity and Access, in conjunction with two members of the Equity and Access Investigating Committee (see Section 07.03), will review all aspects of the complaint to determine whether a violation has occurred. The further investigation will be limited to an additional 30 day period. From the receipt of the initial signed complaint, the Office of Equity and Access will complete the investigation, and render a decision within 60 days.

 

07.03    The Equity and Access Investigating Committee will be comprised of nine members; three faculty, three students, and three staff members appointed by the President in consultation with the Faculty Senate, Staff Council, and the Associated Student Government. The Director of Equity and Access, in conjunction with two members of the Equity and Access Investigating Committee will:

 

a.      Review all aspects of the complaint.

 

b.   Only investigate reports of sexual harassment that are written and signed using the University’s official complaint form (see Attachment II).

 

c.   Ascertain the desired resolution from the person reporting the harassment. Any witnesses may be heard or may be asked to submit first-hand information in writing regarding the complaint.

 

d.   Inform the alleged harasser of the specific complaints and give him or her the opportunity to respond and to present information and witnesses.

 

The Director of Equity and Access, in conjunction with two members of the Equity and Access Investigating Committee, will provide the alleged harasser with written notice of the complaint in sufficient detail to allow him or her the opportunity to respond effectively. The notice will include the name of each person complaining, a summary of the conduct giving rise to the complaint, and the date and location of the alleged conduct.

 

e.   Upon request, the University Attorney will inform the investigating committee of the University's policy for confidentiality in these matters and the possibility of individual liability for defamation. 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.

 

f.    If the Director of Equity and Access, in conjunction with two members of the Equity and Access Investigating Committee, ascertains that harassment has occurred, the Office of Equity and Access will recommend appropriate disciplinary actions in a written report within the 60 day timeframe.

 

g.   If the Director of Equity and Access, in conjunction with two members of the Equity and Access Investigating Committee, finds that no sexual harassment occurred, the Office of Equity and Access will provide a written report within the 60 day timeframe.

 

h.   Within 5 working days of the decision, the Office of Equity and Access will provide a written report of its findings to the University Attorney for review. The University Attorney will have10 days in which to review the decision.

 

i.    The Office of Equity and Access, after consultation with the University Attorney, will issue a final report. A copy of the report will be provided to the complainant, the respondent and the vice president in the reporting line.

 

j.         If disciplinary action is imposed on the person for sexual harassment, the person may appeal only the severity of the disciplinary action through the regular grievance process. The vice president in the reporting line will be responsible for implementing any disciplinary action and will continually monitor the circumstances to ensure a remedied situation.

 

k.      The complainant or the respondent may appeal the decision to the vice president in the reporting line. The vice president will have 15 working days from the receipt of the appeal letter to render a final decision. The vice president’s decision is final and cannot be grieved or appealed.

 

07.04  Texas State prohibits retaliation against a person who files a sexual harassment complaint or who assists or participates in the investigation of a report.

 

08.       PROCEDURES FOR PUBLICATION AND DISSEMINATION OF THIS POLICY

 

08.01  Through brochures, workshops, and other appropriate means, the Office of Equity and Access will provide training to all full-time regular employees concerning the following: (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; (e) sources of support and information for victims and respondents, as mandated by Texas law. All full-time employees are required to receive supplemental training biennially in compliance with Chapter 21, Texas Labor Code.

 

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

 

08.03  The Office of Equity and Access will discuss this policy in orientation programs for new faculty and staff employees within 30 days of employment, as mandated by Texas law.

 

08.04  The Director of Equity and Access 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).  Employees who receive the biennial training will sign a statement of verification.

 

08.05  The office of the Dean of Students will develop an overall educational program for students dealing with issues of sexual harassment. This educational program should be directed toward but not be restricted to new undergraduate and graduate students.

 

08.06  The University will summarize this policy in the Faculty Handbook, the Staff Handbook, and the student handbook.

 

09.       SANCTIONS

 

09.01  Sanctions, which may be imposed by the University, are:

 

a.   For faculty or staff, violation of this policy may result in disciplinary action, up to and including termination of employment.

 

b.   For students, violation of this policy may result in disciplinary action, up to and including dismissal from the University.

 

c.   For contractors, violation of this policy may result in cancellation of the contract with Texas State.

 

09.02  False complaints: False complaints may result in disciplinary action by the University, or civil or criminal complaints by the accused harasser, against the person making the report. An unsubstantiated report is not considered "false" unless it is found to be made with the knowledge that it is false.

 

10.       CONFLICTS

 

10.01  To the extent 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 Student Code of Conduct, this sexual harassment policy shall take precedence.

 

11.       REVIEWERS OF THIS UPPS

 

11.01  Reviewers of this UPPS include the following:

 

Position                                                                      Date

 

Director, Equity & Access                                        October 1 E4Y

 

University Attorney                                                    October 1 E4Y

 

Dean of Students                                                      October 1 E4Y

 

Chair, Staff Council                                                   October 1 E4Y

 

Chair, Faculty Senate                                               October 1 E4Y

 

Co-Chair, President’s Council for Women            October 1 E4Y

 

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. 

 

Director of Equity and Access; senior reviewer of this UPPS

 

Special Assistant to the President

 

President