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, veterans’ status,
or sexual orientation.
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. DEFINITIONS
02.01 Discrimination: Conduct directed at an individual
because of race, color, national origin, age, sex, religion, disability,
veterans’ status, or sexual orientation that subjects the individual to
treatment that adversely affects the individual’s employment or education.
02.02 Harassment: Extreme
or outrageous acts or communications that:
a.
are intended to harass, intimidate,
or humiliate students, faculty, staff, or visitors on account of race, color,
national origin, age, sex, religion, disability, veterans’ status, or sexual
orientation; and
b.
reasonably cause them to suffer severe emotional distress.
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, veterans’ 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 university’s 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.
Either
party may contact the Office of Equity and Access or the Office of Human
Resources to obtain additional information on the process or refer to UPPS No. 04.04.41,
Staff Employee Mediation, Grievance and Complaint Policy.
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 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.
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 respondent’s 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
complainant’s 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, veterans’ status or sexual orientation).
Email: Complainants may file a complaint
using the following e-mail address: equityaccess@txstate.edu. 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
respondent’s 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 president’s 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 action’s 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 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 02.08.
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.
08.06 The university
will summarize its policy on harassment and discrimination in the Faculty
Handbook, the Staff
Handbook, and the Student
Handbook.
09. SANCTIONS
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. CONFLICTS
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:
Position Date
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, President’s Council October 1 E3Y
For Women
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
President