Discrimination and Harassment

No. 3-32    Rev.   12-23-98    Date  8-17-77     



PREAMBLE

Weber State University is committed to providing an environment free from harassment and other forms of discrimination based upon race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference or gender, including sexual/gender harassment. Such an environment is a necessary part of a healthy learning and working atmosphere because such discrimination undermines the sense of human dignity and sense of belonging of all people in the environment.

Discrimination and harassment are prohibited by Titles IV, VI and VII of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972. They are also prohibited by the Utah Anti-Discrimination Act. In addition, various other constitutional provisions, statutes and common law causes of action prohibit such discriminatory conduct. It is the policy of the University to enforce these laws among its students and employees.

Conflicts between the sometimes competing values of anti-discrimination and freedom of speech require a delicate balancing of interests. Constitutionally protected speech and traditional notions of academic freedom are valued in higher education. These ideals help to create the stimulating and challenging learning environment which should characterize higher education. In the spirit of a true university environment, instructors are encouraged to invite, rather than inhibit, discourse on ideas. The University should never restrict speech because of the unpopularity, unpleasantness or even the hatefulness of the message communicated. Nor should the University attempt prior restraint of speech.

Weber State University is committed to eliminating incidents of illegal discrimination in personnel policies and practices within the institution through affirmative efforts at education and support. When violations of this policy occur, various forms of disciplinary action, where appropriate, may be imposed within the parameters of protected speech.

I. POLICY

A. No student or employee of the University may illegally discriminate on the basis of race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference or gender when assigning work-related or education-related benefits and burdens.

B. No student or employee of the University may engage in illegally harassing conduct which creates a hostile work or learning environment for other students or employees of the University.

C. No University employee may create the reasonable perception in the mind of a student or subordinate that the granting or withholding of tangible academic or job benefits shall be based on the granting of sexual favors.

D. University employees with supervisory responsibility who know or have reason to know that this policy is being violated must take action to correct the situation.

E. It is the policy of the University to provide fair, expeditious and uniform procedures by which claims for such treatment may be investigated and resolved within the University community. It is also the policy of the University to safeguard the rights of those accused of discrimination. For that reason, sanctions shall not be imposed upon any students or employees of the University until they have received due process.

II. REFERENCES

  • PPM 3-1, Equal Opportunity and Non-Discrimination Employment
  • PPM 3-10, Termination of Employment
  • PPM 3-31, Employee Grievances (Non-Teaching Personnel)
  • PPM 3-33, Discipline (Non-Teaching Personnel)
  • PPMs 9-9 through 9-18, Academic Due Process
  • PPMs 9-1 through 9-8, Faculty Rights and Responsibilities
  • Student Rights and Responsibilities Handbook

III. DEFINITIONS

A. AA/EO

Affirmative Action/Equal Opportunity

B. Appropriate Vice President

The vice president with direct line responsibility over the college, department, office, agency or other operational unit of the University in which the claimed discrimination occurred.

C. Clearly Offensive Conduct

That conduct, be it verbal or nonverbal, which, when perceived in its overall context, would be taken by a reasonable person to be strongly objectionable and distasteful.

D. Complainant

A person who files a written or oral complaint with the AA/EO Office.

E. Confidential Information

information which can only be released by written authorization of the complaining party, the AA/EO director, or the University Attorney.

F. Confront

To verbally bring face to face and/or to contact regarding specific matters.

G. Demeaning Behavior

Behavior which lowers the status, dignity or standing of any other individual.

H. Derisive Behavior

Behavior which insults, taunts or otherwise belittles or shows contempt for another individual.

I. Director

The director of the AA/EO Office, or her/his appointee.

J. Disability

An individual's physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.

K. Discrimination

Conduct, including words, gestures and other actions, which unfairly disadvantages persons based upon their immutable characteristics such as race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age or handicap.

L. Employee

A person in a teaching or non-teaching position who receives compensation for work or services from funds controlled by the

University, regardless of the source of the funds, the duties of the position, or the amount of compensation paid.

M. Harassment

Unwelcome conduct that is demeaning or derisive of or occurs substantially because of the race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference or gender of a student or employee or groups of these individuals and which creates a hostile learning or work environment. Harassment shall include one or more of the three levels described below. Behavior described in Levels One and Two shall constitute harassment only when a pattern of such conduct continues after the harasser knew, or should have known, that the conduct was unwelcome, unless such conduct is "clearly offensive," in which case only one such incident is necessary.

1. Level One: Generalized Harassment

a. Includes intentional behavior directed at an entire group which is based on demeaning or derisive stereotypes, is so pervasive that it creates a hostile learning or work environment and that is not a part of a discussion or exchange of an idea, ideology or philosophy.

b. Examples include comments or jokes, physical gestures or visual displays such as posters, etc.

2. Level Two: Individually Targeted Harassment

a. Includes intentional, non-criminal behavior which is targeted at an individual or particular members of a group adversely affecting the work or learning environment, which can be verbal, visual or physical.

b. Examples include negative or offensive comments, jokes, suggestions or gestures directed to an individual's or group's race, ethnicity or national origin.

3. Level Three: Criminal Harassment

a. Harassing behavior which violates state or federal criminal statutes.

b. Examples include criminal harassment, criminal assault, sexual assault, rape, criminal mischief, arson and trespass.

N. Participant

A person, other than a student or employee, who is participating in or attempting to participate in, or is receiving or attempting to receive the benefits of any program or activity conducted under the auspices of the University, including, but not limited to, applicants for employment, clients, spectators, visitors and volunteers.

O. Respondent

A person named in a discrimination complaint as having engaged in or being responsible for a discriminatory act or omission.

P. Retaliation

Any form of sanction or adverse treatment against a person because that person has asserted, or has assisted another person to assert, a discrimination complaint in either a formal or informal manner with the University or with any state or federal agency, or because that person has testified, assisted or participated in any manner in an investigation, proceeding or hearing related to a discrimination complaint.

Q. Sexual Harassment

Any unwelcome treatment that is sexual in nature or occurs substantially because of the gender of the victim which creates a hostile work or learning environment. There are two types of sexual harassment: 1) hostile environment sexual harassment, which consists of three levels (see definition of "Harassment" above) and 2) Quid Pro Quo sexual harassment (see definition below).

Quid Pro Quo Sexual Harassment is when a faculty member or supervisor's behavior creates the reasonable perception in the mind of a student or subordinate that the granting or withholding of tangible academic or job benefits shall be based on the granting of sexual favors.

R. Student

A person applying for admission to, admitted to and duly registered as a participant in, or formerly admitted to any program of instruction or

training offered by the University at any level, whether or not for credit.

S. Subordinate

Placed below another in rank, authority, power, status, etc.

T. UADD

Utah Anti-discrimination Division of the Industrial Commission.

IV. MANAGEMENT PROVISIONS

A. Applicability

1. Protection of academic freedom is valued in higher education. Deference to this ideal requires delicate balancing when applying this policy in an instructional setting. Instructors' good faith selection of subject matter and methodology, and the content of class discussions will be exempt, therefore, from the provisions of this policy. This exemption shall not apply to harmful or offensive personal attacks substantially based on a person's race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference or gender.

2. Any student or employee of Weber State University who is or has been subjected to discrimination, or harassment in violation of this policy may use the complaint procedures described herein.

3. Any supervisor or faculty who knows or has reason to know of violations of this policy within her/his area of responsibility must take corrective action. Such action may be to attempt an informal resolution or to refer the matter to the AA/EO Office. (See V, A below)

4. Any student or employee who knows or has reason to know of violations of this policy in any activity conducted under the auspices of Weber State University is encouraged to report such conduct to the AA/EO Office.

5. Questions regarding discrimination or harassment may be directed to the AA/EO Office.

6. The initial notice or inquiry may be submitted either orally or in writing. If a notice or inquiry is submitted orally and no complainant is willing to file a written complaint, the director shall proceed with the investigation if he/she, in consultation with the appropriate vice president or presidential assistant, believes that the interests of the parties or the institution dictate. Regardless of whether a signed complaint or intake form is received, the director shall use her/his best efforts to resolve the problem.

7. Complaints should be brought as soon as possible after the event(s) which gives rise to the complaint. Complaints should be filed within six months of the most recent act which violates the policy. Where the interests of justice require, however, this time limit may be waived with the consensus of the director, the appropriate vice president or presidential assistant and the University counsel.

B. Options

1. Those who believe they are victims of discrimination or harassment, witnesses or others may address discrimination or harassment issues by utilizing one or more of the following options:

a. Consult with the AA/EO Office.

b. Seek to resolve issues directly with the individual(s) alleged to have discriminated or harassed.

c. Seek to resolve issues through supervisor personnel.

d. Register a complaint with the AA/EO Office.

2. Those who believe they are victims of discrimination or harassment, witnesses or others may also initiate outside legal action through private sources, the UADD or the appropriate federal enforcement agency. It is recommended that where time allows (before applicable statutes of limitations have run) grievance procedures within the University described above will be utilized.

3. The director may initiate an independent investigation into alleged discrimination or harassment which need not be based upon the alleged victim's choice of action.

4. If an investigation reveals evidence of criminal conduct in discrimination, or harassment, the director may refer the matter to the County Attorney's Office. This decision need not be based upon the alleged victim's choice of action.

5. Consideration shall be given to the alleged victim's requests in the investigation process and fact-finding hearing. University officials, however, reserve the right to override the alleged victim's preferences in handling complaints. The justification for any decision to override the alleged victim's preference shall be documented in writing.

6. The director, and others designated by the institution, may provide direction and assistance to those involved in a discrimination complaint.

C. Protection of the Parties

1. Complaint investigations shall be treated with discretion to protect the privacy of those involved, as permitted by law.

2. The intentional disparagement of a complainant, respondent or witness during the pendency of an investigation shall constitute a violation of this policy.

3. Complainants shall not be required during the investigation to confront respondents outside of the investigative hearing.

4. Neither the respondent nor her/his representatives shall contact the complainant regarding allegations of discrimination unless such contact is arranged by the responsible supervisor handling the complaint or the AA/EO Office with the permission of the complainant.

5. The University shall vigorously pursue this policy to protect against discrimination, or harassment.

6. The director shall promptly inform the respondent(s), in writing, of the existence and nature of the charge(s) filed against them as set out in V, B, 3 below.

D. Retaliation

1. Retaliation against any person who opposes a practice which is forbidden by this policy, or has filed a complaint, testified, assisted or participated in any manner in an investigative proceeding or hearing under this policy is prohibited.

2. Individuals found guilty of any retaliation may face disciplinary action up to and including termination or expulsion.

E. The following types of conduct on the part of a gender/sexual harassment complainant shall not constitute a complete defense for the alleged harassment, but may provide evidence that the respondent did not have notice that her/his conduct was unwelcome:

1. The fact that a gender/sexual harassment complainant did not complain at the time of the conduct.

2. The voluntary participation in the alleged harassing behavior by the gender/harassment complainant.

3. The behavior, speech, dress and/or demeanor on the job or in school claimed to be sexually provocative.

F. Education

1. Weber State University recognizes the importance of educating its students and employees regarding the prevention of discrimination or harassment, the promotion of cultural pluralism, and the observance of high ethical standards in consensual relationships. Benefits from such a program include the following:

a. Informing individuals of their rights under this policy.

b. Notifying individuals of proscribed conduct.

c. Informing supervisors/managers about the proper way to address complaints of violations of this policy.

d. Helping to educate members of the campus community about the problems this policy addresses.

2. To these ends, the University will organize an ongoing educational program in this area. Notice of this policy will be widely distributed. Workshops will be periodically conducted for employees of the University regarding discrimination, harassment, including sexual harassment, cultural pluralism and consensual relationships.

G. Available Remedies

1. These complaint procedures do not set any limit on existing administrative discretion or powers. Remedies should be considered on a case-by-case basis.

2. Employees and students found guilty of discrimination or harassment may face disciplinary action up to and including termination or expulsion. Imposition of such discipline may not occur unless the respondent has been afforded due process.

H. Records

1. Records of all discrimination or harassment complaints shall be maintained and stored for a minimum of three years in the AA/EO Office.

2. All information contained in the complaint file is classified as confidential.

3. Participants in such complaint proceedings shall treat all information as confidential.

V. PROCEDURE

A. Initial Contact

1. Any person who believes he or she is the victim of discrimination or harassment or who has knowledge of such conduct is encouraged to report that conduct directly to the AA/EO Office or to an appropriate supervisor. Appropriate supervisors include department chairs, deans, vice presidents or directors at the departmental level or higher, or teachers of classes.

2. Reports of discrimination or harassment may be oral or written.

a. If the report is not in writing, an attempt should be made to acquire the complainant's signature to the Discrimination/Harassment Intake Form.

b. If a complainant is unwilling to sign an Intake Form attesting to the truth of the allegations contained therein, the complainant should be informed that her/his refusal may prevent the AA/EO Office from conducting an investigation. Regardless of whether a signed complaint or intake form is received, the director shall use her/his best efforts to resolve the problem.

c. The Intake Form shall include the identities of respondents; the frequency, intensity and duration of the behaviors complained of; the emotional and/or physical damages the complainant alleges resulted from the conduct; and the remedial action sought by the complainant.

3. If the initial report is directed to a line supervisor of the respondent:

a. The supervisor shall complete the Intake Form after interviewing the complainant.

b. The supervisor may either refer the complaint to AA/EO or attempt to resolve the complaint directly with the parties.

c. If the dispute is resolved to the satisfaction of the parties, the agreement shall be documented in writing with all parties signing and receiving copies. The agreement shall then be sent to the AA/EO director to review its legal adequacy.

d. If the agreement is approved by the director, she/he shall review the complaint 90 days from the date of the agreement to verify that its terms have been carried out by all parties. If so, the complaint will be closed. If not, an investigation by the AA/EO Office shall be conducted.

e. If the AA/EO director, with the concurrence of the University attorney, determines that the agreement reached by the parties is inadequate, then the AA/EO director shall contact the supervisor and attempt to assist that supervisor and parties to reach an agreement that is adequate. If the director fails in that effort then the AA/EO Office shall conduct an investigation as defined below.

f. If the supervisor fails to resolve the complaint within thirty days of its receipt, she/he shall refer the complaint to the AA/EO Office for investigation as defined below.

4. If the initial complaint of a violation of this policy is received by any employee of the University other than a supervisor with line authority over the respondent, the person contacted will refer the complaint to the appropriate supervisor or the AA/EO Office in a timely fashion.

5. If the initial complaint is directed to the AA/EO Office or if an unresolved complaint is referred to the AA/EO Office:

a. The AA/EO Office shall complete the Intake Form and, if the complaint includes allegations which would constitute a violation of this policy, initiate an investigation as defined below.

b. The director shall attempt informally to facilitate an agreement satisfactory to the parties. As part of this effort, the director shall encourage the parties to meet for face-to-face negotiations. No party, however, shall be forced to meet with the other party at this stage of the complaint procedure.

c. Agreements towards resolution of complaints shall be documented in writing with all parties signing and receiving copies.

d. The director shall inform dean level supervisors with line authority over the respondent(s) named in the complaint that an investigation has been initiated.

B. Investigation

1. When required by the above procedures, the AA/EO Office shall conduct an investigation of complaints. When conducting investigations, the AA/EO Office shall disclose its role as a neutral investigator for the institution, as distinguished from an advocate for any of the parties involved.

2. The extent of an investigation shall be determined by the director, but at a minimum shall include interviews with all complainants and respondents. It is within the director's discretion to determine the order of these interviews.

3. The director shall promptly inform the respondents, in writing, of the existence and nature of the charge(s) filed against them. This shall be done by providing a copy of one of the following: 1) the written complaint, 2) the Intake form described in V, A, 2, c above or 3) a written summary of the complaint. The director shall also inform the respondents of their rights and responsibilities during the investigation and shall overview the anticipated investigative procedures.

4. An investigation shall be completed as quickly as practicable, but in any event, within twenty-five working days of receipt of the complaint, unless a longer period of time is reasonably required. Reasonable cause for delay includes, but is not limited to the unavailability of key witnesses or the discovery of new evidence requiring further investigation. The director shall attempt to keep the parties informed of the progress of the investigation throughout its duration. When delays occur, the parties shall be informed of them as soon as practical.

5. Within ten working days of the conclusion of the investigation, the director shall make available to the parties a written report. The report shall review the complaint, response, evidence adduced from the investigation and findings. The findings shall indicate whether it was more likely than not that a violation of this policy occurred.

6. The parties shall then have ten working days to provide to the director their written responses to the investigation report. At the end of that ten day period the director shall file the report and any written responses received from the parties with the appropriate vice president or presidential assistant.

C. Remedial Action

1. If a complaint is found to be factually supported in whole or in part, the appropriate vice president or presidential assistant shall implement corrective and remedial steps necessary to eliminate the effects of the discrimination upon the complainant and upon any other person similarly situated.

2. The complainant and respondent shall be given a written copy of the specific corrective and remedial action ordered to be taken.

D. Sanctions

1. No sanctions of any kind may be imposed solely on the basis of a complaint investigation by the AA/EO Office.

2. Once the appropriate vice president or presidential assistant has reviewed the report of the director along with any responses thereto filed by any of the parties, she/he shall determine whether to close the complaint, attempt informal conciliation between the parties or initiate disciplinary proceedings. These proceedings shall include due process rights for the respondent, as provided by the following policies. These policies also indicate the rights of complainants to appeal any decision to close the complaint without disciplinary sanctions being imposed.

a. Respondents who are staff employees (non-faculty) are entitled to due process as set out in PPMs 3-33 and 3-31. Completion of the investigative procedures of this policy may, at the discretion of the director of Human Resources, constitute completion of steps one and two of PPM 3-31.

b. Respondents who are faculty are entitled to due process as set out in PPMs 9-9 to 9-14. Completion of the investigative procedures of this policy may, at the discretion of the provost, constitute completion of a preliminary investigation as outlined in PPM 9-11.

c. Respondents who are students are entitled to due process as set out in the Student Policies and Procedures Manual. Completion of the investigative procedures of this policy may, at the discretion of the vice president for Student Services and the student(s) or student groups involved, constitute completion of informal resolution procedures outlined in Chapter VIII of that document.

d. Under circumstances which could otherwise result in multiple hearings, each of which would be investigating complaints arising from the same occurrence(s), these various hearings may be consolidated into one hearing. Such a hearing would be conducted before a panel composed of representatives of the groups which fairly reflect the parties involved in the complaint. The line supervisor most proximate to all complaining and responding parties, with the concurrence of the University attorney, and all parties involved with the complaint shall determine the necessity for such consolidation. If there is such agreement, the line supervisor most proximate to all complaining and responding parties, with the concurrence of the University attorney shall determine the composition of the hearing panel. If any of the parties are unwilling to consolidate, then separate hearings will be undertaken.

E. Complaint Review

1. Within 90 days following the resolution of a complaint or the imposition of sanctions resulting from a complaint, the AA/EO Office shall conduct a review to determine if the resolution of the case is being followed.

2. If the review indicates that the resolution is being followed, the matter shall be terminated and the case file closed.

3. If the follow-up review indicates that the resolution is not being followed, the case shall be referred back to the appropriate vice president or presidential assistant for consideration of additional disciplinary action(s), including possible disciplinary action against violators and their supervisors who knew that the resolution was not being followed, or that the unacceptable behavior continued to exist, and failed to take corrective action.


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