Discrimination and Harassment


No. 3-32   
Rev.   5-6-14 Date  8-17-77     

 

 

 

 

PREAMBLE

Weber State University is committed to providing an environment free from harassment and other forms of discrimination based upon “protected classifications,” as defined below, through affirmative efforts at education and support. Such an environment is a necessary part of a healthy learning and working atmosphere.

Discrimination and harassment are prohibited by numerous federal and state laws and regulations, including, but not limited to the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972, the Rehabilitation Act of 1973, and the Utah Anti-Discrimination Act. It is the policy of the university to enforce these laws among its students and employees. When violations of this policy occur, appropriate disciplinary action may be imposed.

This policy shall not be construed to restrict constitutionally protected expression, even though such expression may be unpleasant or even hateful. 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, individuals are encouraged to invite, rather than inhibit, discourse on ideas.


I. REFERENCES

PPM 3-1, Equal Opportunity and Non-Discrimination Employment

PPM 3-10, Termination of Employment (Non-Faculty)

PPM 3-31, Staff Employee Grievances (with provision for certain hourly employees)

PPM 3-33, Discipline (Non-Teaching Personnel)

PPM 3-34, Americans with Disabilities Act & Section 504 Request for Accommodation

PPM 3-67, Violence Prevention

PPM 6-22, Student Code

PPMs 9-1 through 9-8, Faculty Rights and Responsibilities

PPMs 9-9 through 9-18, Academic Due Process


II. DEFINITIONS

A. Appropriate Administrator

The administrator at the vice presidential level with direct line responsibility over the college, department, office, agency or other operational unit of the university in which the claimed discrimination or harassment occurred

B. Complainant

A person who files a written or oral complaint of discrimination or harassment

C. Disability

A physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment

D. Discrimination

Conduct which unfairly disadvantages persons based on their protected classification(s), except as permitted by law

E. Employee

A person in a teaching or non-teaching position, including an independent contractor, 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.

F. Executive Director

The Executive Director of Affirmative Action/Equal Opportunity (AA/EO) or her/his designee

G.  Gender Identity/Expression

Having a gender identity, self-image, or full-time gender appearance, behavior or expression, whether or not that gender identity, self-image, or full-time appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

H.  Harassment

Unwelcome conduct directed against a person based on one or more of that person’s “protected classifications.”

I.  Hostile Environment

Harassment which is so severe or pervasive that it denies or limits a student’s ability to participate in or benefit from the University’s program or unreasonably interferes with an employee’s work performance or creates an intimidating, or offensive work environment.  Both subjective and objective factors shall be considered when evaluating whether a hostile climate exists.

J.  Pervasive Conduct

Conduct of an unwelcome nature that occurs so frequently it would be taken by a reasonable person to create a hostile work or learning environment.

K.  Protected Classifications

Race, color, national origin, pregnancy, genetics, age (over 40), disability, religion, sex, sexual orientation, gender identity/expression, veteran, active military status, and other classifications protected by law.

L.    Respondent

A person named in a discrimination complaint for one or more violations of this policy.

M.  Responsible Supervisor

Any supervisor, or her/his designee, with line authority over the respondent, who receives a complaint alleging non-compliance with this policy.  Responsible Supervisors include department chairs, program directors, managers, supervisors, deans, vice presidents or directors at the departmental level or higher, or other appointed administrators or members of the faculty.

N.  Retaliation

Any significant form of sanction or substantially adverse treatment against a person because that person has engaged in activities protected by this policy.  Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this policy.

O.  Severe

Conduct, which, when perceived in its overall context, would be taken by a reasonable person to be so offensive that a single incident would create a hostile environment.  Sexual assault is an example of severe conduct.

P.  Sexual Orientation

A person's predisposition or inclination toward heterosexuality, homosexuality, or bisexuality

Q.  Title IX Coordinator

The Executive Director of AA/EO is the University’s designated Title IX Coordinator.  Other Title IX Coordinators may be appointed by the President of the University, as needed.

R.  Veterans

 A person who, having served in the military service, has been honorably discharged


III. POLICY

A. No student or employee of the university may engage in discrimination or create a hostile environment on the basis of “protected classifications,” as defined above, when involved in university activities.

B. All University employees who, know or have reason to know, that this policy is being violated, must take action as specified by this policy.  (See IV. Management Provisions)

C. University employees and students are required to cooperate with internal investigations under this policy.

D. University employees and students shall not file false claims or provide false information during an investigation.  If students or employees knowingly and intentionally file false claims, they will be subject to disciplinary action.

E. No employee or student shall retaliate against any person because they have participated in activities protected by this policy, including, but not limited to inquiring about one’s rights under this policy, being a party to a complaint under this policy, serving as a witness in an investigation of a complaint under this policy, serving as an investigator or mediator in a civil rights investigation of a complaint under this policy, or opposing any practice prohibited by this policy.

F. Employees and students found guilty of violations of this policy, including discrimination, creation of a hostile environment, providing false information or engaging in retaliation, 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, in accordance with University policy.

G. Members of the university community, and especially faculty, supervisors and other university officials should strive to prevent discriminatory harassment. When discriminatory harassment that is neither severe nor pervasive occurs, efforts should be undertaken to prevent the creation of a hostile work or learning environment even before it may be appropriate to impose disciplinary sanctions on those engaging in the harassment, as described in Paragraph F, above. Nondisciplinary remedial measures such as education and training, mediation, voluntary transfers or reassignments, etc., that may help to avoid the creation of hostile environment should be considered.


IV. MANAGEMENT PROVISIONS

A. Applicability

1. In order to protect free speech and academic freedom of faculty, students and other members of the university community, this policy shall not apply to expression that is protected by the U.S. Constitution, the Utah Constitution or falls within traditional boundaries of academic freedom.  This includes, but is not limited to, faculty members' good faith selection of subject matter and methodology, the content of class discussions, and expression in publications and public forums.  This exemption shall not apply to harmful or offensive personal attacks substantially based on a person's protected classifications.  The university retains the right to apply restrictions consistent with constitutional principles of forum analysis to regulate use of university property.

 

2. Any member of the university community who is being, or who has been subjected to discrimination or harassment, as defined in this policy, may use the complaint procedures described herein.  Questions regarding discrimination or harassment may be directed to the AA/EO Office.

 

3. All employees have a duty to immediately report to the AA/EO, information related to discriminatory harassment, unless statutorily barred from sharing such information.

 

4.  All individuals are encouraged to report unwelcome conduct based on protected classifications to the AA/EO office, even if such conduct has not reached the level of creating a hostile environment.  An example is unwelcome sexual conduct that is not, yet, severe or pervasive.  This will assist in preventing such conduct from creating a hostile learning or work environment.

 

5.  Complaints should be reported 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 by the Executive Director.  


B. Options for Complainants

1. Those who believe they are victims of discrimination or harassment may utilize one or more of the following options:

 

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

b. Seek to resolve issues through a Responsible Supervisor.

c. Consult with the AA/EO Office to pursue informal resolution through mediation.

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

e. Pursue criminal charges through the WSU Campus Police.

 

f. Initiate outside legal action through external sources, including the Utah Anti-discrimination and Labor Division or the appropriate federal enforcement agency.  It is recommended that where time allows (before applicable statutes of limitations have expired) grievance procedures within the university be utilized.

2. Although consideration shall be given to the alleged victim's preferences in the investigation process, the Executive Director may initiate an independent investigation into alleged discrimination or harassment, which need not be based on the alleged victim’s preference.    The justification for such a decision shall be communicated to the alleged victim.

3. If an investigation reveals evidence of criminal conduct, the Executive Director shall refer the matter to the appropriate law enforcement agency.  This decision need not be based upon the alleged victim's choice of action.

4. The Executive 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 with the purpose or effect of intimidating witnesses or parties from the enforcement of this policy may constitute a violation of this policy.  It is not a violation of this policy, however, for anyone involved in a complaint to seek appropriate counsel, either on or off campus.  This includes, but is not limited to, legal or psychological counseling.

3. Complainants shall not be required to confront respondents regarding the complaint during the investigation, but may do so, if they wish.

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

5. The Executive Director may take immediate steps to prevent any further harassment during the pendency of the investigation/resolution process.  These measures may include, but are not limited to, temporarily reassigning housing, changing class assignments or schedules, placing the parties on temporary, non-disciplinary leave with pay, or receiving temporary reassignments.

D. Records

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

2. All information contained in the complaint file is classified as "Protected" with a secondary classification as “Private” under the Government Records Access and Management Act.  Disclosure will be only as permitted by law and university policy.


V. PROCEDURE

A. Initial Report

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 a Responsible Supervisor.

2. Filing reports of discrimination or harassment

 

a. Informal complaints may be either written or oral.

b.  Formal complaints and responses must be written, signed and verified.  A formal written complaint should include, at a minimum, the identities of the complaining and responding parties, the type of complaint, a description of the behaviors complained of, the harm the complainant alleges resulted from the conduct, and the remedial action sought by the complainant.  

c. If a potential complainant chooses not to submit a formal complaint, the complainant shall be informed that her/his refusal may prevent the AA/EO Office from conducting an investigation. Regardless of whether a formal complaint is received, the Executive Director shall use her/his best efforts to resolve the problem.

 

3. Initial report directed to a Responsible Supervisor of the respondent:

 

a. If the complaint is informal, the Responsible Supervisor may either attempt to resolve it directly with the parties through informal means or refer it to AA/EO.

b. If the Responsible Supervisor handles the complaint informally, she/he must consult the AA/EO Office after interviewing the complainant regarding recommended procedures.

c. If a tentative resolution is reached through informal means to the satisfaction of the parties, the Responsible Supervisor shall inform the Executive Director of the terms of the agreement.  The Executive Director will review the adequacy of the agreement based on law, policy and institutional practice to determine if the resolution will adequately eliminate the hostile environment for the complainant and/or leave others at risk of assault or harassment.  In situations involving safety concerns, the Executive Director will refer the resolution to the Strategic Threat Assessment and Response (STAR) Team for evaluation, in accordance with PPM 3-67.

d. If the Responsible Supervisor fails to resolve the complaint within 10 working days of its receipt, s/he shall refer the complaint to the AA/EO Office.

e. If the Executive Director determines that the agreement reached by the parties is inadequate, then the Executive Director shall contact the Responsible Supervisor and attempt to assist the Responsible Supervisor and the parties to reach an agreement that is adequate.  If the Executive Director fails in that effort, then the AA/EO Office shall conduct a formal investigation.

 

4. If the initial complaint of a violation of this policy is received by any university employee, other than a Responsible Supervisor, the person contacted shall immediately refer the complaint to a Responsible Supervisor or the AA/EO Office.

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

 

(1) The AA/EO Office shall determine whether the complainant wishes to file an informal or a formal complaint.  

(2) If the complaint is informal, the AA/EO Office shall attempt to facilitate a resolution of the conflict that is agreeable to all parties, as described below.  

 

a.  The AA/EO Office shall be required only to conduct such fact-finding as is useful to resolve the conflict and as is necessary to protect the interests of the parties and the university.

b. Whenever reasonable, the Executive Director shall attempt to facilitate an agreement satisfactory to the parties through informal means such as discussions, mediation, etc.  Complaints of serious criminal conduct, such as sexual assault, are inappropriate for informal resolution.

B. Formal Complaint Investigation

1. If the complainant wishes to file a formal complaint, the AA/EO Office shall determine whether the complaint includes allegations which, if true, would constitute a violation of this policy, and whether there is any reasonable evidence supporting those allegations.  If so, the AA/EO Office shall initiate an investigation as described below.  If not, the AA/EO Office will not proceed with an investigation, but will attempt to resolve the underlying complaint.

2. 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.

3. The extent of a formal investigation shall be determined by the Executive Director.

4. If the Executive Director accepts the formal complaint, s/he shall inform the respondent(s) of the existence and nature of the complaint.  This shall be done by providing to each respondent a copy of either the written complaint, or a written summary of those portions of a complaint that bear on that respondent. The Executive Director shall also inform the respondents of their rights and responsibilities during the investigation and shall overview the anticipated investigative procedures.

5. The Executive Director shall inform the Appropriate Administrator that an investigation has been initiated.

6.  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, the discovery of new evidence requiring further investigation or ongoing conciliation efforts. The Executive Director shall attempt to keep the parties informed of the progress of the investigation throughout its duration.

7. Within 10 working days of the conclusion of the investigation, the Executive 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 there is reasonable cause to believe that a violation of this policy occurred. The Executive Director may, at her/his discretion, include recommendations regarding disciplinary sanctions, where appropriate.

8. The parties shall then have ten working days to provide to the Executive Director their written responses to the investigation report. At the end of that ten day period, the Executive Director shall file the report and any written responses received from the parties with the Appropriate Administrator.

9.  Agreements to resolve formal complaints shall be documented in writing with all parties signing and receiving copies.

C. Remedial Actions, Sanctions and Appeals

1. The Appropriate Administrator shall review the investigation report and any submissions by the parties, and determine whether to close the complaint, attempt informal conciliation between the parties or initiate disciplinary action(s) against the respondent(s).

 

2. If there is reasonable cause to believe the respondent(s) violated this policy, the Appropriate Administrator shall implement steps necessary to remediate the effects of the discrimination or harassment upon the complainant(s) and others similarly situated.  

3. If there is reasonable cause to believe the respondent(s) violated this policy, the Appropriate Administrator may initiate disciplinary proceedings against the respondent(s) as may be appropriate to deter such conduct in the future. These proceedings shall include all appropriate due process rights for the respondent, as provided by the following policies. These policies also indicate the rights of complainant(s) to appeal any decision to close the complaint without disciplinary sanctions being imposed.

 

a. Respondents who are non-faculty employees are entitled to due process as set out in PPMs 3-31 and 3-33. Completion of the investigative procedures of this policy may, at the discretion of the AVP 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 PPM 6-22.   Completion of the investigative procedures of this policy may, at the discretion of the Vice President for Student Affairs and the student(s) or student groups involved, constitute completion of informal resolution procedures outlined in those policies.

d. Under circumstances which could otherwise result in multiple hearings, each of which would involve adjudicating 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 their concurrence, and that of University Legal Counsel, shall determine the necessity for such consolidation and the composition of the hearing panel. If any of the parties are unwilling to consolidate, then separate hearings will be undertaken.

e. The complainant(s) and respondent(s) shall be informed, in writing, of the corrective and remedial actions to be taken.

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 Administrator 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