Stephen F. Austin State University

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Discrimination Complaints/Sexual Harassment (E-46)

Original Implementation: September 1990/February 2, 1982
Last Revision: April 22, 2008

1. Purpose: To provide a working environment of nondiscrimination, equal employment opportunity, affirmative action, protection from retaliation for members of classes protected by law, and to comply with federal and state equal opportunity employment regulations.
2. Non-discrimination Policy: It is the policy of Stephen F. Austin State University not to discriminate against any employee or applicant for employment because of race, color, religion, sex, age, national origin, disability, or disabled veteran status. Unlawful discrimination based on sex includes discrimination defined as sexual harassment. Stephen F. Austin State University is committed to the principles of Equal Employment Opportunity (EEO) law. An employee who violates this policy is subject to disciplinary action up to and including termination.
   
   A supervisor or employee commits unlawful employment practice if the supervisor or employee retaliates or discriminates against a person, who (a) opposes a discriminatory practice, (b) makes or files a complaint alleging employment discrimination, (c) or testifies, assists or participates in any manner in an investigation, proceeding or hearing. Any employee who retaliates against another employee who opposes alleged employment discrimination violates the university’s policies and procedures and may be subject to disciplinary action up to and including termination. This policy applies to student complaints that might involve peer to peer discrimination/harassment and also student employment discrimination/harassment.
   
   The president or designee will be responsible for overseeing the Discrimination Complaint/Sexual Harassment Policy and procedures and for ensuring compliance with EEO laws. All employment decisions will be based on objective, job related, and measurable criteria that can be consistently applied. Human resources or designee will review all employment actions and decisions, to include, but not limited to, recruitment, selection, promotion, assignment, training, evaluations, discipline, restructuring, workplace accommodations, and compensation to ensure consistency of application. Human resources or designee will annually review all personnel policies and procedures to ensure compliance with EEO laws and present any recommendations for updating to the president. All employment related documents will be maintained in accordance with the university’s Texas State Record Retention Schedule.
3. Definitions:
1. Unlawful Discrimination: Based upon a variety of statutes, both on the federal and state levels, unlawful discrimination may affect terms and conditions of the employment or the educational setting and is based upon race, color, religion, sex, age, national origin, disability, or disabled veteran status. Applicable statutes include: Title VII of the Civil Rights Act of 1964, Civil Rights Act of 1991, Title IX of the Education Amendments of 1972, Age Discrimination in Employment Act, Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Equal Pay Act, Immigration Reform and Control Act of 1986, and Texas Labor Code 21.001, et seq. The totality of the facts and circumstances will have a bearing on whether unlawful discrimination has occurred.
2. Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, even if carried out under the guise of humor, constitute sexual harassment when:
   1. Submission to or tolerance of such conduct is made either explicitly or implicitly a term or condition of an individual's employment or education; or
   2. Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decisions (including admissions and hiring) affecting that individual; or
   3. Such conduct has the purpose or effect of substantially interfering with an individual's academic or professional performance or creating an intimidating, hostile or offensive employment, educational or living environment The university will not tolerate sexual harassment of any employee or student by another employee, supervisor, or other person with whom an employee or student may have contact with as part of his or her duties. The totality of facts and circumstances in any given situation will have a bearing upon whether unlawful discrimination or sexual harassment has occurred.
4. Required Equal Employment Opportunity (EEO) Training:
The university is required by the Texas Labor Code 21.010 to provide training to each new employee on policies regarding discrimination and harassment no later than 30 days after the date of hire. In addition, supplemental training is required every two years. All employees will receive a copy of the university’s Discrimination Complaint/Sexual Harassment Policy and procedures within 30 days of employment. A signed statement verifying attendance is required to be maintained in the employee’s personnel file.
5. Management and Supervisory Responsibilities:
Vice presidents, deans, directors and department chairs shall take appropriate steps to disseminate this policy statement and to inform employees and students of procedures for lodging complaints. Vice presidents, deans, directors, and department chairs are required and students are urged to notify the director of human resources, ADA coordinator or the appropriate dean, director, or department chair for the area involved when they learn of an instance of unlawful discrimination or sexual harassment.
6. Employee Responsibilities and Student Responsibilities:
While not required, all employees are urged to contact the director of human resources or the appropriate dean, director, or department chair for the area involved when they learn of an instance of employee related unlawful discrimination or sexual harassment. Students are urged to contact the director of human resources, ADA coordinator or the appropriate dean, director, or department chair for the area involved regarding employee related unlawful discrimination or sexual harassment. Student to student infractions should be reported to the Judicial Office.
7. Complaint Procedure:
Employees may report a discrimination or sexual harassment complaint without fear of retaliation. All university employees are responsible for immediately reporting discrimination or sexual harassment complaints to the director of human resources, or ADA coordinator (as applicable), or may additionally be reported to a vice president, dean, director or department chair for the area involved. Student to student complaints should be reported to the judicial officer, or the ADA coordinator (if applicable).

Complaints should be filed as soon as possible after any incident, but no later than 180 days from the incident involving unlawful discrimination or sexual harassment.

Complaints must be made in writing and signed by the individual submitting the complaint. While investigators will attempt to maintain as much confidentiality as possible, complete anonymity may give way to the university's obligation to investigate and take appropriate action. Those complaints that are received verbally, but not in writing should still be communicated to the Director of Human Resources for possible informal investigation.

If a pattern of harassment appears to exist but no complainant files charges, the university may file a third-party charge against an individual. Such charges will be handled with as much care and control as any other complaint so as to avoid acting on rumor or unjustified accusation.
8. Investigative Process:
1. Employee Related Complaints
Once a complaint has been brought to the attention of a supervisor, department chair, or other individual in a management level position, that person must report the complaint to the director of human resources as soon as possible. Every attempt should be made to keep the information confidential and restricted to only those who have an absolute need to know. As there may be more than one complainant in an unlawful discrimination or sexual harassment case, the term "complainant" as used herein shall refer to one or more complainants.

The dean or director (or other appropriate administrator) for the area involved will normally begin the investigation of the charges within 10 working days from when it was received, not as a representative of the complainant, but as an impartial party. If the director is the direct supervisor of the accused, the vice president will assign an alternative director from within their division so the investigator is not investigating his or her own department. The investigation shall normally be conducted within 45 working days thereafter the letter of finding will be forwarded to the director of human resources and the general counsel at the end of the investigation. Case complexity will vary and the termination of the investigation will depend on case circumstances; however, the investigation will commence within the designated time and will conclude under normal circumstances within 45 working days. It is incumbent upon the investigating official to document a reasonable justification for extending an investigation beyond 45 working days. Investigation of a complaint normally will include conferring with the parties involved and may proceed as necessary with examination of relevant documentation and interviews with other employees or students. Discretion should be exercised in determining which witnesses are indeed necessary to the investigation. The dean or director conducting the investigation may also consult with appropriate management personnel, including the director of human resources, the ADA coordinator, and the general counsel for advice and guidance as applicable. After investigating the allegations, the dean or director will meet with the accused employee, provide the accused with the allegations and an opportunity to respond to the allegations. The investigator is responsible for responding to each allegation that the complainant has made. This response should be in the form of a memo describing the investigator’s findings and conclusions. The memo summary should include a brief overview of the investigative process including the categories and numbers of individuals interviewed (excluding names), timelines, a summary of each allegation, a summary of the findings by the investigator, and a summary of the investigator’s conclusions and recommendations. This memo should be addressed to both the complainant and the accused with copies provided to the appropriate vice president, the general counsel, and the director of human resources. If the complainant or the accused are not satisfied with the results of the investigation as presented in the memo from the investigator, they may appeal in writing to the appropriate vice president within 30 days of the date of the memo.

If the complaint cannot be resolved to the satisfaction of all parties, the dean or director, working with the director of human resources and the general counsel, will make a recommendation, normally within 20 days of receipt of the complaint to the appropriate vice president as to whether any disciplinary action should be taken. A summary of the case will be provided to the vice president. Recommendations of the dean or director to the vice president may include dismissing of the charges; warning, suspension or termination of the accused; allowing the parties to sign a written statement of agreement resolving the differences between them; counseling; or other appropriate disciplinary action. A general status report of the investigation should be provided to the complainant and the accused upon completion of this investigative phase.
2. Student to Student Complaints:


The judicial officer shall investigate student to student complaints and follow the timeframes described in the preceding guidelines for employees. If student discipline is recommended, the Rules of Procedure in Student Disciplinary Matters will guide the proceedings. Said rules are located on the SFA Web Page for student policies and procedures or may be obtained from the Office of Student Affairs. Informal and formal disposition procedures are outlined within the policy; and, it contains full due process procedures.
9. Review by the Appropriate Vice President for Employee Related Complaints:
   After the vice president has offered to meet with the accused and if necessary, to meet with the complainant and witnesses, he/she will accept, modify or reject the recommendation of the dean or director. If the vice president concludes that the charges are serious enough to require termination or suspension, the faculty member or staff member may be placed on a leave of absence with pay, pending a hearing by the review board and action by the president.
   
   The vice president's review should generally be completed within 10 days from receipt of the matter, unless additional time is required in fairness to the parties. A general status report should be forwarded to the complainant and the accused at the conclusion of the vice president's review.
10. Review by the Employee Discrimination Complaint Review Board:
    If the decision of the vice president is not satisfactory to either party (complainant or accused), that individual(s) has 5 days in which to request a formal hearing of the Discrimination complaint review board ("review board"). The request must be put in writing to the vice president issuing the decision.
    
    The review board of three individuals will be selected from a panel of 20 pre-selected faculty members and 20 pre-selected staff members to be appointed by the president. If the accused is a faculty member, the review board will be composed of at least two faculty members. If the accused is a staff member, the review board will be composed of at least two staff members. The complainant will select one member and the accused will select one member from the applicable panel. The two selected members will choose a third person from the panel. None of these individual review board members shall be from the department of the accused or the complainant (if applicable). These three individuals will comprise the review board and will elect a chair from among themselves. The university president may remove any selected review board member if substantial proof of bias exists.
    
    The chair of the review committee is responsible for coordinating the hearing. The complainant, the accused, and the university all have the right to be advised by counsel, but lawyers will not be allowed to conduct or participate in the hearing. The day prior to the scheduled review committee hearing, each side shall submit a list of its witnesses and copies of its documentary evidence to the chair. A list of witnesses and a summary list of the evidence will be provided to each side. The rest of the review committee will not receive the material until the time of the hearing. All materials presented must be maintained in a confidential manner by all parties involved.
    
    The dean or director who conducted the investigation will apprise the review board of the charges and will normally present all relevant evidence. Both parties will have an opportunity to respond to the charges and present evidence. Each party may make a 5 minute opening statement prior to presentation of the evidence. The burden will be on the complainant to prove by the greater weight of the credible evidence that the accused has committed an act of sexual harassment and/or unlawful discrimination. Cross examination of the witnesses is allowed by all parties. Each party may make a 5 minute closing statement.
    
    The chair of the review board will conduct a fair hearing before the complainant and the accused and shall allow relevant witnesses and evidence from both parties. The hearing shall be closed to the public. The general counsel may and/or the director of human resources may be consulted in procedural matters of the review board and may be present at meetings. All information presented in the hearing is confidential and restricted to only those who have an absolute need to know.
    
    The review board will normally have 5 days after the completion of the hearing to summarize its findings and make a written recommendation to the president.
11. Review by the President for Employee Related Complaints:
    The president may accept, reject, or modify the decision of the review board and will have access to all evidence, both parties, and witnesses as deemed appropriate. In all instances except where a faculty member's tenure is revoked or a faculty member is being terminated during the term of their employment, the decision of the president is final. In cases where tenure is being revoked or a faculty member is being terminated during the term of employment, the case will be forwarded to the Board of Regents for a final determination. Pending action by the Board of Regents, the faculty or staff member may be suspended without pay and removed from the university or assigned to other duties with pay at the president's discretion. Final disposition of the case will be communicated to the accused employee and the complainant.
12. Employee Sanctions:
1. University imposed: University sanctions for violations of this policy may include any disciplinary action, up to and including termination of employment for faculty or staff. Such activities may be viewed as constituting moral turpitude or substantial neglect of academic responsibilities under the Faculty Handbook and a major work rule violation under the Staff Discipline and Discharge Policy.
2. Civil: Unlawful discrimination and sexual harassment are illegal under state and federal law. Official governmental investigations by the Equal Employment Opportunity Commission, the Texas Commission on Human Rights, and/or the Office of Civil Rights of the Department of Education may result in civil lawsuits against any person guilty of unlawful discrimination or sexual harassment.
3. Criminal: Sexual harassment by a public servant is a criminal offense under 39.02 of the Texas Penal Code. Depending on the severity of the acts, sexual harassment may also specifically include indecent exposure, public lewdness, assault, or sexual assault under Chapter 21 and 22 of the Texas Penal Code.
4. 4. False charges may result in disciplinary action against the complainant by the university or civil charges against the complainant by the accused. An unsubstantiated charge is not considered "false" unless it is found to be made with the knowledge of it being false.
13. Student Sanctions:
Disciplinary action for student to student related complaints may range from sensitivity counseling to suspension or dismissal. False charges may also result in disciplinary action. An unsubstantiated charge is not considered "false" unless it is found to be made with knowledge of it being false.
14. 14. The dean/director (or other appropriate administrator) who investigated the complaint will be responsible for monitoring the circumstances surrounding the complaint to insure the situation has been remedied.
15. 15. The human resources director or designee will be responsible for maintaining a log of all formal complaints and the results of such complaints.

Cross Reference: Faculty Handbook, Non-Academic Employee Handbook; 42 U.S.C. 2000e; 42 U.S.C. 1981; 20 U.S.C. 1681-1688; 42 U.S.C. 12101; 29 U.S.C. 621 et seq.; 29 U.S.C. 794 et seq.; 29 U.S.C. 206(d); 8 U.S.C. 1101; Texas Labor Code Sec. 21.101 et seq.; Texas Penal Code, Sec. 39.02; Pub. L. 88-352 (Title VII); Pub. L. 102-166

Responsible for Implementation: President

Contact for Revision: Director of Human Resources and General Counsel

Forms: None