Discrimination, Harassment, and Sexual Misconduct

No. 3-32    Rev.   9-13-18 Date  8-17-77     

 

PURPOSE

Weber State University is committed to providing an environment free from harassment and other forms of individual or institutional discrimination based upon “protected classifications,” as defined below.  Such an environment is a necessary part of a healthy learning and working atmosphere. This will be accomplished through preventative educational efforts, support for those impacted by discrimination and harassment, effective policy enforcement and remedial activities.

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 Clery Act, 20 U.S.C. § 1092(f), the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Pregnancy Discrimination Act, the Age Discrimination Act of 1975, the Equal Employment of Veterans Act,  the Genetic Information Non-Discrimination Act of 2008, the Immigration and Nationality Act, the Lilly Ledbetter Fair Pay Act of 2009, Uniformed Services Employment and Reemployment Rights Act (USERRA), the Equal Pay Act of 1963, the Veterans Readjustment Benefits Act, the Utah Fair Housing Act, Nursing Mothers in the Workplace and the Utah Anti-Discrimination Act. Utah State Board of Regents’ policy R256, Student Disciplinary Processes, protects students’ due process rights. Sexual assault, sexual exploitation, dating violence, domestic violence, and stalking are forms of sexual harassment prohibited by this policy. It is the policy of the University to enforce these laws among its students, employees and others, as further described herein. 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 3-2, Employee Definitions

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 Accommodations

PPM 3-67, Violence Prevention

PPM 5-36a, Safety, Response, and Reporting Policy (Clery)

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. Actual Complainant 

The person or persons who have been most directly and negatively impacted by claimed discrimination or harassment.  This person may or may not also be the Complainant.

B. Affirmative Action/Equal Opportunity Office (AA/EO Office)

The office responsible for responding to claims of discrimination and harassment, as defined by this policy. (Contact information for this office shall be easily and widely available, including on the homepage for the AA/EO Office.)

C. Appropriate Administrator

The administrator at the vice presidential level, or their designee, with direct line responsibility over the college, department, office, agency or other operational unit of the University with supervisory authority over the individual or individuals who are accused of discrimination or harassment.

D. Complainant

A person who files an informal or formal complaint of discrimination or harassment.

E. Confidential Employees

All employees of the Counseling & Psychological Services Center, Women’s Center, Student Health Center, and employees of the WSU Police Department, to the extent they receive reports of Clery crimes from these offices and the complainant has requested nondisclosure of those offices.  These individuals do not have reporting requirements as “responsible employees” for purposes of this policy and Title IX only.  These individuals may be considered Campus Security Authorities and have other reporting requirements for purposes of the Clery Act and PPM 5-36a.  Employees who have a legal privilege also do not have reporting requirements under this policy.

F. Consent

Consent is affirmative and freely given permission to engage in sexual activity. A person can affirm consent, or lack of consent, through words or conduct. Consent can be withdrawn at any time, irrespective of the consent which may have been given previously. Silence or absence of resistance does not, necessarily, imply consent. A complainant has not consented when the complainant is under the age they can legally consent; unconscious; unaware that the act is occurring; physically unable to resist; overcome by force, violence, concealment or surprise; lacks the understanding to make rational decisions or engage in responsible actions due to alcohol or other drugs, or because the complainant is temporarily or permanently impaired by a disability. 

Being intoxicated or incapacitated does not diminish one’s responsibility to obtain consent and will not be an excuse for sexual harassment and misconduct.  

The University adopts other circumstances identified in Utah law as standards for determining consent as in Utah Code Ann. §76-5-406.  However, criminal prosecution of offenses is subject only to standards in applicable law. 

The University considers unconsented conduct as unwelcome conduct although consent, alone, does not, necessarily indicate that conduct was welcomed.

G. 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.

H. Disability Coordinator (or ADA/504 Coordinator)

The Weber State employee given the overall responsibility to supervise, and ensure accessibility and accommodations for individuals with disabilities in accordance with state and federal non-discrimination laws related to disability. (http://www.weber.edu/nondiscriminationandaccessibility) 

I. Discrimination

Conduct which denies or limits persons’ opportunities based on their protected classification(s), except as permitted by law.

J. Discriminatory Harassment

“Unwelcome conduct” (as defined, below) that is based on “protected classifications” (as defined, below). Sexual harassment is defined, in detail, below. 

K.  Employee

See PPM 3-2 II. B.

L. Executive Director

The Executive Director of Affirmative Action/Equal Opportunity (“AA/EO”).

M.  Gender Identity/Expression

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. 

N.  Hostile Environment

Discriminatory harassment which is so severe, persistent or pervasive, as determined by analyzing the totality of the circumstances, that it denies or limits a student’s ability to participate in or benefit from the University’s programs or activities 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 environment exists.

O.  Individual with a Disability

Any person who has a physical impairment (including, but not limited to a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting a body systems such as neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine) or mental impairment (a mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities) that substantially limits one or more major life activities (functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.), has a record of such an impairment, or is regarded as having such an impairment (whether or not the impairment limits or is perceived to limit a major life activity). 

P.  Pervasive Conduct

Conduct of an unwelcome nature that occurs so frequently it would be taken by a reasonable person to deny or limit a student’s ability to participate in or benefit from the University’s program or unreasonably interfere with an employee’s work performance or creates an intimidating, or offensive work environment.

Q.  Protected Classifications

Race, color, national origin, pregnancy, and pregnancy-related conditions such as childbirth, false pregnancy, miscarriage, abortion, or related conditions, (including recovery), genetics, disability, religion, sex, sexual orientation, gender identity/expression, veteran, active military status, age (over 40 in employment discrimination), and other classifications protected by law.

R.    Respondent

A person against whom an informal or formal complaint of discrimination or harassment is filed. 

S.  Responsible Employees

All employees, as defined by PPM 3-2 II. B., except “confidential employees,” as defined above, are “responsible employees” for purposes of mandatory reporting, as described below. 

T.  Responsible Supervisor

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

U.  Retaliation

Any form of sanction or adverse action (including intimidation, threats, coercion, or discrimination) against a person because that person has engaged in activities protected by this policy or state or federal nondiscrimination laws, such as filing a complaint or participating in an investigation.  Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from engaging in activities protected by this policy or state or federal nondiscrimination laws.

V.  Severe

Conduct, which, when perceived in its overall context, would be taken by a reasonable person to be so offensive that a single incident or a small number of incidents would create a hostile environment. Nonconsensual sexual intercourse is an example of severe conduct.

W.  Sexual Harassment and Misconduct

Sexual harassment and misconduct are types of discriminatory harassment that refer to a variety of behaviors that include these two common elements:
· The behaviors are unwelcome, and
· The behaviors are either: 1) of a nature that is related to sex or gender, gender identity or expression, or sexual orientation, and/or 2) they are directed at a person because of their actual or perceived sex or gender, gender identity or expression, or sexual orientation. 

This policy prohibits all sexually harassing conduct, whether or not it is criminal, if such conduct occurs on University property or while one is engaged in University activities, when the results of such conduct create a hostile work or learning environment in University courses, activities or employment. This policy also requires redressing a hostile environment that occurs on campus even if it relates to off-campus activities, when the results of such conduct create a hostile work or learning environment in University courses, activities or employment. Forms of sexual harassment and misconduct that are potentially criminal, and which the Clery Act may require to be reported include: 

1.  Dating Violence

Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant.  The existence of such a relationship shall be determined based on the reporting party’s statement with consideration of the length and type of relationship and the frequency of interaction with the persons involved in the relationship.  It includes, but is not limited to, sexual or physical abuse or the threat of such abuse.  It does not include acts covered under the definition of domestic violence. 

2.  Domestic Violence

A felony or misdemeanor crime of violence committed against a complainant by: (i) a current or former spouse or intimate partner; (ii) a person with whom the complainant shares a child in common; (iii) a person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner; (iv) a person similarly situated to a spouse of the complainant under applicable domestic or family violence laws; or (v) any other person against an adult or youth victim whom the complainant is protected under applicable domestic and family violence laws.  

3.  Incest

Sexual intercourse between persons who are related to each other within the degrees wherein sexual intercourse is prohibited by law.

4.  Fondling

The touching of the private body parts of another person for the purpose of sexual gratification and without the consent of the complainant, including instances where the complainant is incapable of giving consent because of their age or because their temporary or permanent mental incapacity.

5.  Rape

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without consent of the complainant. 

6.  Sexual Assault

Rape, fondling, incest, or statutory rape, as defined herein.

7.  Sexual Exploitation

When a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
a. Invasion of sexual privacy;
b. Prostituting another person or other sex trafficking;
c. Non-consensual video or audio-recording of sexual activity;
d. Allowing others to hide to watch consensual sex;
e. Voyeurism;
f. Knowingly transmitting an STD or HIV to another person;
g. Exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals;
h. Sexually-based bullying;
i. Non-consensual removal of a condom or other form of birth/disease control by a sex partner, sabotage to a condom or other form of birth/disease control by a sex partner without the other’s knowledge or consent, or false representation of the use of a condom or other form of birth/disease control.

8.  Stalking

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of a third person, or to suffer substantial emotional distress. A “course of conduct” means two or more acts, including, but not limited to, acts which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. “Reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant. This definition of stalking is also the definition under Utah criminal law. (Utah Code Ann. §76-5-106.)

9. Statutory Rape 

Sexual intercourse with a person who is under the statutory age of consent.

[See, also, PPM 5-36a for more information about Clery crimes and reporting, as well as for information about state law definition of such crimes.]

X.  Sexual Orientation

A person's enduring physical, romantic, and/or emotional attraction to members of the same and/or opposite sex, including heterosexual, homosexual, or bisexual orientations. 

Y. Title IX Coordinator 

The Weber State employee given the overall responsibility to supervise and ensure that the University complies with Title IX.  Other Deputy Title IX Coordinators may be appointed, as needed. (Contact information for these offices shall be easily and widely available.)

Z. Unwelcome Conduct 

Conduct is considered “unwelcome” if the person did not request or invite it and considered the conduct to be undesirable or offensive. Unwelcome conduct may take various forms, including, name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Unwelcome conduct does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Unwelcome conduct can involve persons of the same or different protected classifications. Participation in the conduct or the failure to complain does not always mean that the conduct was welcome. The fact that a person may have welcomed some conduct does not necessarily mean that the person welcomed other conduct. Also, the fact that a person requested or invited conduct on one occasion does not mean that the conduct is welcome on a subsequent occasion. Unwelcome conduct that is “severe,” persistent and/or “pervasive” enough to create a “hostile environment” becomes “discriminatory harassment” when it is based on a person’s “protected classifications” (see, definitions, above).

AA.  Veteran

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

III. POLICY

A. Employment Discrimination Prohibited: Illegal employment discrimination based on protected classifications is prohibited. Weber State University will publicize that it is an Equal Opportunity/Affirmative Action employer. Recruitment of personnel shall frequently use off-campus recruiting sources to encourage applications from under-represented groups. Procedures for selection shall be based on job-related criteria including education, skills, experience and affirmative action requirements. Promotions, compensation, evaluations, access to facilities, discipline and terminations and all other aspects of University employment shall be administered in a nondiscriminatory manner. 

B. Student Discrimination Prohibited: Illegal student discrimination based on protected classifications is prohibited. Weber State University will publicize that it is an Equal Educational Opportunity institution. Student recruitment; admissions to programs & classes; participation in co-curricular activities; access to University housing; eligibility for financial aid and student employment and all other aspects of the student program shall all be administered in a nondiscriminatory manner.

C. Other Discrimination Prohibited: Illegal discrimination against persons, other than students or employees, who are participating or attempting to participate in, or are receiving or are applying for the benefits of, any program, service or activity conducted under the sponsorship or auspices of the university, including but not limited to spectators, visitors, and volunteers based on protected classifications is prohibited. 

D. Discriminatory Harassment Prohibited: No person may engage in illegal conduct that creates a hostile environment for employees, students or others on the basis of their protected classifications. This includes behavior occurring off-campus that creates a hostile environment on campus or in University activities. 

E. Prevention of Discriminatory Harassment Encouraged: Members of the University community, and especially faculty, supervisors and other University officials, should strive to prevent illegal 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 D, above. Non-disciplinary 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.

F. Mandatory Reporting of Violations of This Policy: All “responsible employees,” as defined above, who know or suspect that this policy is being violated must report such violations, as specified below. All others, including, but not limited to students, are strongly encouraged to report known or suspected violations of this policy. (See IV. Management Provisions)

G. Cooperation Implementing Interim Measures Required: Faculty and staff shall cooperate with the AA/EO Office, Human Resources, Disability Services and the Safe@Weber Survivor Advocate to provide interim measures or accommodations under IV.C.9 below. 

H. Safety Concerns Referred to the STAR Team: In situations involving safety concerns, the AA/EO Office will refer the situation to the Strategic Threat Assessment and Response (STAR) Team for evaluation, in accordance with PPM 3-67.

I. Noninterference with Investigations Under This Policy: University employees and students are prohibited from interfering with and are strongly encouraged to cooperate with investigations of violations of this policy. 

J. False Complaints and Testimony Prohibited: University employees, students and others shall not file false claims or provide false information during an investigation of a complaint under this policy. 

K. Retaliation Prohibited: No employee or student shall retaliate against any person because they have participated in activities protected by this policy or state or federal law, 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, supporting a complainant, respondent, or witness who has participated in activities protected under this policy, or opposing any practice prohibited by this policy or state or federal law. Retaliation should be reported immediately to the AA/EO Office.

L. Reasonable Accommodation of Disabilities Required: Faculty and staff will not illegally discriminate in admissions to the University or specific programs, or enrollment in courses based on disability and will provide accommodations, academic adjustments, auxiliary aids and services for persons with disabilities, as required by PPM 3-34 and state and federal law. Procedures for requesting accommodation for disabilities and resolving disputes regarding such requests are set forth under PPM 3-34. 

M. Reasonable Accommodation of Religious Beliefs Required: Faculty and staff shall reasonably accommodate religious and other deeply held beliefs, as required by law and University policy.  Unresolved disputes regarding religious accommodations may be grieved through the procedures set out in Section V., below.  

N. Reasonable Accommodation of Pregnancy Required: Faculty and staff will reasonably accommodate students and employees who are pregnant, in accordance with the law.  Students’ absences due to medical conditions relating to pregnancy will be excused for as long as deemed medically necessary by a student's doctor and students will be given a reasonable  opportunity to make up missed work.

O. Sanctions for Violations of This Policy: Employees and students found to have violated this policy, including discriminating, creating a hostile environment, interfering with approved reasonable accommodations, providing false information or engaging in retaliation, may face disciplinary action up to and including termination, eviction, expulsion or being trespassed.  Imposition of such discipline may not occur unless the respondent has been afforded due process, in accordance with University policies, as described below. 

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 set forth in PPM 9-1.  This includes, but is not limited to, faculty members' good faith selection of subject matter and methodology, the content of academic discussions, and protected 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 which violate this policy. The University retains the right to apply restrictions consistent with constitutional principles of forum analysis to regulate use of University property.

2. This policy and the procedures for addressing complaints of discrimination and harassment, apply to all University programs and activities; including those conducted off-campus and to all off-campus conduct that has on-campus effects.

3. Any member of the University community who is being, or who has been subjected to discrimination or harassment, including improper denials of accommodations, 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.

4. All “responsible employees,” as defined above, are required to immediately report to the AA/EO Office the names of the complainant(s), respondent(s) and others who were involved, as well as relevant facts, including the date, time, and location of suspected violations of this policy, unless they are “confidential employees,” as defined above. 

 5. Confidential employees do not have a duty to report information about alleged violations of this policy to the AA/EO Office (or others) when permission has not been given from the person who disclosed that information, subject to the limitations required by law.  Confidential employees should inform such individuals of this policy, options available under Section IV.B, resources for counseling, medical, and academic support, and what retaliation and safety protections may be available.

6. Exceptions to the reporting requirements described herein may be made in limited instances where disclosure is made during academic programs or awareness, prevention, or support programs where disclosure is not necessarily intended by the individual to constitute a report to the University for purposes of this policy.  A request for an exception for such program must be made to the Title IX Coordinator prior to the program.  The Title IX Coordinator may grant an exception, but may put conditions on such grant.

7. All persons who are not “confidential employees” as defined above, are encouraged to report known or suspected discrimination, including harassment or similar conduct, even if the individual does not believe it has reached the level of creating a hostile environment, such as 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.

8.  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 alleged act which violates the policy. Where the interests of justice require, however, this time limit may be waived by the Executive Director.  Regardless of whether a complaint is accepted and investigated, supportive services may be provided to the parties.
B. Options for Complainants

1. Complainants 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. Seek to resolve issues through the Faculty Omsbud. 

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

e. File a formal complaint with the AA/EO Office.

f. Pursue criminal charges through the police.

g. Initiate outside legal action through external sources, including the Utah Anti-discrimination and Labor Division or the appropriate federal enforcement agency such as the Equal Employment Opportunity Commission or the Office for Civil Rights in the Department of Education.  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 complainant’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 complainant’s preference. If the actual complainant elects not to pursue a matter under this policy, the Executive Director may appoint a designee, to pursue the matter in the actual complainant’s stead. The designee then becomes the complainant. The actual complainant shall be permitted to provide input to the complainant, including whether the complainant appeals a decision under the grievance process. Factors discussed in IV. C. 3., below, shall be considered.

3. If an investigation reveals evidence of criminal conduct, the Executive Director shall determine whether the matter must be referred to the appropriate law enforcement agency. Where a referral is discretionary, the Executive Director will generally refer the matter, but an exception may be made in deference to the wishes of the actual complainant. Factors discussed in IV.C.3., below, shall be considered. In all cases, reporting will take place as required by law. The University may proceed with an investigation, even in cases involving referrals to law enforcement.

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. The confidentiality of complainants and investigations shall be treated with discretion to protect the privacy of those involved, except as required by law and as described herein. 

2. A (potential) complainant may request confidentiality or anonymity, and may choose not to submit a complaint at all. Individuals who desire to make a report of suspected violation of this policy, but who are concerned about identifying information being shared with others should make those concerns known prior to reporting to a University employee. Employees responsible for reporting such information should alert individuals of their reporting responsibilities as soon as possible.  Reporting employees should communicate the desires of the reporter regarding confidentiality to the AA/EO Office.

3. The University will attempt to cooperate with requests for confidentiality, if possible. In so doing, the Executive Director will evaluate any such request in the context of the University’s goal to provide a safe and nondiscriminatory environment for all members of the University community. The factors that may be considered include the seriousness of the alleged discrimination or harassment, the age of the complainant, whether there have been other complaints or reports of discrimination or harassment against the respondent, and the rights of the respondent to receive information about the complainant and the allegations if a formal proceeding with sanctions may result. 

4. (Potential) complainants shall be informed that their requests or their refusals to disclose names, pursue an investigation, or file a formal complaint may limit the University’s ability to investigate and to respond to complaints.

5. Regardless, the AA/EO Office shall strive to stop prohibited discrimination, including harassment, eliminate any hostile environment, take steps to prevent the recurrence of the discrimination, and address any effects on campus or in the context of any University programs and activities.

6. The parties may discuss investigations with others under this policy in order to obtain and present evidence or otherwise to defend their interests. They may seek appropriate counsel on or off campus, including, but not limited to legal or psychological counseling. The intentional disparagement of a complainant, respondent or witness, however, during the pendency of an investigation, with the purpose or effect of intimidating witnesses or parties from the enforcement of this policy may constitute retaliation or other violations of this policy.

7. The parties shall not be required to meet with or confront each other regarding the complaint during the investigation. 

8. Neither the parties nor their representatives shall contact each other during the investigation regarding allegations of discrimination unless such contact is with the permission of the party being contacted and is arranged by either the Responsible Supervisor handling the complaint or the AA/EO Office.

9. Interim Measures and Accommodations. 

a. The University will take steps to ensure that during the University’s investigation (and any criminal investigation), adjudication, and appeals process, interim measures and accommodations are taken or provided to protect and support the parties and minimize the likelihood of retaliation. Interim measures and accommodations can be requested by contacting the AA/EO Office. 

b. The University will provide written notification about options for, available assistance with, and the procedure to request interim measures and accommodations.  Such interim measures and accommodations will be provided as reasonably available, regardless of whether the complainant chooses to report to police. 

c. The University will take steps to ensure, where possible, and as supported by the available information, that such interim measures and accommodations minimize the burden on all parties and equitably distribute between the parties any burdens that cannot be eliminated. Where parties are students, every effort should be made to avoid depriving them of their education. All parties should be consulted throughout the investigation to ensure that interim measures continue to be necessary and effective based on their evolving needs. 

i.  Examples of possible interim measures and accommodations for all parties that may be available include, but are not limited to medical and mental health services, including counseling, issuing no-contact directives, providing assistance with transportation such as shuttle service, cab voucher or parking arrangements, assistance identifying an advocate to help secure additional resources or assistance including off-campus and community advocacy, support and services, or providing an escort while on campus. 

ii.  Interim measures for employees may include, but are not limited to, temporarily reassigning work schedules or assignments, or placing employees on non-disciplinary leave with pay. 

iii.  Interim measures for students may include, but are not limited to: reassigning student housing or dining locations, providing assistance in finding alternative housing, transferring to another section of a lecture or laboratory, rescheduling class assignments or test schedules, providing opportunities to make up missed academic work, accessing academic support (e.g., tutoring), preserving eligibility for academic, athletic or other scholarships, financial aid, internships, study abroad or foreign student visas, arranging for incompletes, or allowing students to retake or withdraw from courses without penalty, to the extent academically feasible.

d. The University will provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, student financial aid, and other services available for victims, both within the institution and in the community.

10. All parties and witnesses may have advisors present during interviews. Advisors may be, but do not have to be attorneys. Generally advisors are not permitted to participate during the investigative process, but may advise the party.  Any restrictions on the advisors' ability to speak or otherwise participate will be applied equally to all parties. In instances where it is foreseeable that a sanction of expulsion or suspension for ten days or more may be applied against a student, the respondent shall be notified of these rights prior to being interviewed about allegations of misconduct. 

11. The University shall avoid conflicts of interest (real or reasonably perceived) by those investigating and adjudicating complaints.

12. Because sexual assaults may occur in circumstances where individuals may have engaged in minor violations of the University codes of conduct, including usage of alcohol or drugs, individuals may fear reporting because they might be charged with violations of conduct codes.  In order to encourage reporting, when sexual misconduct is reported in circumstances where University codes of conduct have been violated, WSU will provide amnesty from institutional disciplinary actions, except under circumstances where such violations would normally result in suspension, eviction, expulsion, or termination.  

D. Records

1. Records of all illegal 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 governed by the Family Educational Rights and Privacy Act where student education records are involved and classified as "Protected" with a secondary classification as “Private” under the Government Records Access and Management Act for all other records.  Notwithstanding anything herein, disclosure will be only as permitted by law and University policy.

V. PROCEDURE

A. Initial Report

1. Any person who believes they have experienced discrimination or harassment, or who has knowledge of such conduct impacting other students, employees or others, is encouraged, and in some instances is required, to report that conduct directly to the AA/EO Office or to a Responsible Supervisor, as further described above.

2. Filing reports of discrimination, harassment, or retaliation

a. Informal complaints may be either written or oral. Complainants may request anonymity or confidentiality for informal complaints, as described above. 

b. Formal complaints and responses must be written, signed, and sworn as true and accurate.  A formal complaint (or complaint summary) should include, at a minimum, the identities of the parties involved, the specific section(s) of the University’s policy(ies) allegedly violated, the conduct allegedly constituting the potential violation(s), and the date(s) and location(s) of the alleged violations, a description of witnesses who have knowledge that is relevant to the complaint, other relevant evidence of which the parties are aware, the harm the complainant alleges resulted from the conduct, and the remedial action(s) sought by the complainant.  

c. Where there are multiple respondents, written summaries of those portions of the complaint that bear on that respondent may be substituted.

3. When the initial report is 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 the AA/EO Office.

b. If the Responsible Supervisor handles the complaint informally, immediately after interviewing the complainant, the Responsible Supervisor must consult with the AA/EO Office 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 AA/EO Office 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 end the discrimination or harassment; eliminate any hostile environment; prevent its recurrence, and remedy the discriminatory effects on the complainant(s) and others as appropriate. 

d. If the Responsible Supervisor fails to resolve the complaint within 10 working days of its receipt, they 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 AA/EO Office shall contact the Responsible Supervisor and attempt to assist the Responsible Supervisor and the parties to reach an agreement that is adequate.  If the AA/EO Office fails in that effort, the complainant may elect to pursue a formal complaint with the AA/EO Office.

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 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:

a. The AA/EO Office shall determine whether all parties agree to attempt to resolve the complaint through informal procedures.  

b. If the parties voluntarily agree to pursue an informal resolution, the AA/EO Office shall attempt to facilitate a resolution of the conflict that is agreeable to all parties, as described below.  

i.   The AA/EO Office shall be required only to conduct such fact-finding as is necessary and useful to: end any discrimination and harassment, resolve the conflict, protect the interests of the parties, eliminate a hostile environment, remedy the effects of such an environment and prevent reoccurrence.

ii.  The parties will be notified of their right to end the informal process at any time and initiate a formal investigation. 

iii.  Mediation will not be used in situations where safety concerns are present, where alleged conduct was so traumatic that there is a risk of further psychological harm, or where a power differential between the parties makes mediation otherwise inappropriate.

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 the complaint is timely, and is neither frivolous nor without merit. If so, the AA/EO Office shall promptly 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. An individual, free of actual or reasonably perceived conflicts of interest and biases for or against any party shall conduct the investigation. The investigator shall disclose their role as a neutral investigator for the institution, as distinguished from an advocate for any of the parties involved. The investigation shall be conducted by an individual trained to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence—including both inculpatory and exculpatory evidence—and take into account the unique and complex circumstances of each case.

3. The extent of a formal investigation shall be determined by the AA/EO Office, but shall include, at the discretion of the AA/EO Office, potential violations of other policies and procedures that arise out of the same facts that are alleged in the complaint of violations of this policy and may make recommendations regarding those potential violations as well. 

4. The AA/EO Office shall promptly and effectively inform all parties of the initiation of an investigation and their rights and responsibilities during the investigation, including:
a. the right to have an advisor throughout the process who may, but need not be, an attorney, and the right to postpone for a reasonable time, an initial interview until arrangements for an advisor can be made;
b. the right to expect the University to gather sufficient evidence to reach a fair, impartial determination as to whether a policy violation has occurred and 
c. c. the duty not to obstruct the investigation; 
d. the right to participate or not participate in the investigation, and notice that the investigation may proceed without the participation of any party to the complaint; 
e. the timeframes involved, including any deadlines; 
f. the right to present witnesses and other evidence; and
g. the right to pursue criminal charges independent of the investigation. 

This shall be done by providing to each respondent a copy of either the written complaint, or, where there are multiple respondents, a written summary of those portions of a complaint that bear on that respondent. 

5. Where criminal charges are involved, the AA/EO Office will maintain regular contact with law enforcement to determine when it may begin its investigation.  The AA/EO Office will promptly begin its investigation as soon as notified by the law enforcement agency that it has completed the evidence gathering process, or sooner if the AA/EO Office determines that the evidence gathering process will be lengthy or delayed, or where it is otherwise in the best interest of the University. The AA/EO Office will not delay its investigation until the ultimate outcome of the criminal investigation. 

6. The AA/EO Office shall inform the Appropriate Administrator that an investigation has been initiated in her or his area of responsibility.

7.  The preponderance of the evidence standard will be used for investigating all alleged discrimination and harassment complaints and making findings related to the allegations.

8. An investigation, including the opportunity for the parties to supplement the investigation report, as described below, and the decision of the Appropriate Administrator, shall be completed as promptly as practicable, but in any event, within forty-five calendar days of the filing of the complaint, unless a longer period of time is reasonably required. to provide a thorough and equitable investigation.  Reasonable causes for delay include, but are not limited to, temporary delays to avoid interfering with police investigations, the unavailability of key witnesses, the discovery of new evidence requiring further investigation or ongoing conciliation efforts. The AA/EO Office shall regularly keep the parties informed of the progress of the investigation throughout its duration.

9. At the conclusion of the investigation, the AA/EO Office shall make available to all parties (including the actual complainant, if she or he is not a party to the complaint or the next of kin where the actual complainant is deceased) a written report. The report shall review the complaint, response, a summary of the relevant exculpatory and inculpatory evidence determined from the investigation, findings, conclusions and recommendations. The conclusions shall indicate whether there is reasonable cause to believe that a violation of policy occurred. If the complaint presented more than a single allegation of misconduct, a decision shall be reached separately as to each allegation of misconduct.  The AA/EO Office shall include recommendations regarding sanctions and remedies, where appropriate., that are reasonably calculated to stop the discrimination or harassment, eliminate any hostile environment, remedy the effects of discrimination and prevent its recurrence. Sanctions for the most serious violations may include suspension, eviction, expulsion, or termination or trespass. Remedies may include, but are not limited to, the interim measures/accommodations described above.  

10. The parties shall then have ten working days to provide to the AA/EO Office their written responses to the investigation report. These responses can take issue with the evidence considered, offer additional evidence, take issue with the conclusion(s) of the investigation and/or object to any recommended sanctions or other remedies. 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. The AA/EO Office may investigate further based on the responses of the parties. 

11.  Conciliated 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 within ten working days whether to close the complaint, investigate further, attempt informal resolution between the parties, or impose disciplinary sanction(s).  That decision will be communicated in writing to the parties.

2. If the Appropriate Administrator, based on a preponderance of the evidence, finds that this policy was violated, the Appropriate Administrator shall implement steps necessary to eliminate the discrimination, including a hostile environment, if necessary, prevent its recurrence, and to remediate the effects of the discrimination or harassment.

3. The Appropriate Administrator may impose disciplinary sanctions as may be appropriate to deter such conduct in the future.  These proceedings shall include all appropriate due process rights, as provided by the following policies. These policies also indicate the rights of all parties to appeal all decisions regarding the findings of the investigation and/or whether appropriate disciplinary sanctions have been recommended. Possible sanctions are stated in PPM 6-22, PPM 3-33, PPM 9-14 or PPM 3-67.  Complainants and Respondents who wish to appeal decisions made by the Appropriate Administrator must follow the procedures that govern the right of the Respondents.

a. Respondents who are non-faculty employees are entitled to due process as set out in PPM 3-31. Completion of actions taken by the appropriate administrator will be considered as replacing 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 constitute completion of informal resolution procedures outlined in that policy, unless all parties and the Dean of Students agree to use the informal level resolution procedures. 

d. Respondents who are neither students nor employees may ask for a review of such decision by submitting a request with a concise statement of facts and reasons for review to the Vice President for Administrative Affairs within five days of notification of the action.

e. In cases involving allegations of sexual harassment or misconduct, hearing committee members shall receive training on those issues. This training will include, but not be limited to domestic violence, dating violence, sexual assault, and stalking, and hearing processes that protect the safety of victims and promote accountability while avoiding approaches that apply sex stereotypes or generalizations. When a student is the complainant, a student may only be a member of such a hearing committee if agreed upon by all parties.  

f. 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.  The line supervisor most proximate to all complaining and responding parties shall determine the necessity for such consolidation and the composition of the hearing panel. 

g. The complainant(s) (and the actual complainant, if different from the complainant) shall be informed, in writing, of the outcome and the corrective and remedial actions to be taken. Notice should be provided to all parties at the same time. 

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 an informal review as necessary to determine if the hostile environment or discrimination has been eliminated.

2. If the review indicates that the hostile environment or discrimination has been eliminated, the matter shall be terminated and the case file closed.

3. If the follow-up review indicates that the hostile environment or discrimination has not been eliminated, the case shall be referred back to the Appropriate Administrator for consideration of additional action(s), including possible disciplinary action against violators and their supervisors who knew that the resolution was not being followed, or who knew that the unacceptable behavior continued to occur, and failed to take corrective action(s).