Harassment and Discrimination Policies and Procedures

 

Emporia State University seeks to create an atmosphere that recognizes and protects an environment of tolerance for all members of the university community. Federal law and university policy (see Explanations section) protect a number of groups from unlawful discrimination. The University makes all decisions with reference to employment status and student status without regard to age1, race2, color3, religion4, gender5, marital status6, national origin7, disability status8, veteran status9, sexual orientation10, or any other factors which cannot lawfully be considered, to the extent specified by applicable federal and state laws.

Moreover, the university regards inappropriate behavior, unfair treatment, or harassment of any individual to be inconsistent with its goal to provide an environment in which students, faculty, unclassified professionals, classified employees, and other members of the university community can develop intellectually, professionally, personally, and socially. These policies and procedures extend to all University personnel operating in a University-sanctioned capacity, both on and off campus. The Affirmative Action Officer is responsible for implementation of a campus-wide harassment training program for faculty and staff. This training shall be mandatory for University employees and appropriate training records will be maintained.

This University has adopted a policy on the Use of Controversial Material in Instruction, Including the Use of Sexually Explicit Materials in Instruction (University Policy Manual 4E.0101) that complies with the Kansas Board of Regents’ policy on this issue. The harassment and discrimination policies and procedures described herein shall be followed for the reporting, investigation, handling, and disposition of all complaints by any person regarding University Policy 4E.0101.

1 Age Discrimination Act of 1975, Age Discrimination in Employment Act of 1967
2 Title VI & VII of the Civil Rights Act of 1964
3 Title VI & VII of the Civil Rights Act of 1964
4 Title VII of the Civil Rights Act of 1964
5 Title VII of the Civil Rights Act of 1964, Equal Pay Act of 1963, Pregnancy Discrimination Act of 1978, Title IX of Education Amendments of 1972
6 Emporia State University Equal Employment & Educational Opportunity and Non-Discrimination Policy
7 Title VI & VII of the Civil Rights Act of 1964
8 Americans with Disabilities Act of 1990, Sections 503 & 504 of the Rehabilitation Act of 1973
9 Vietnam Era Veteran’s Readjustment Act of 1974, Uniform Services Adjustment and Re-Adjustment Act of 1994
10 Kansas Board of Regents Policy and Procedures Manual, Policy on Affirmative Action and Equal Opportunity
(amended 06/22/00), Pg. 58

3D.0106.01 EXPLANATIONS


The Age Discrimination in Employment Act of 1967 prohibits discrimination against individuals who are at least 40 years of age. Discrimination is prohibited in all terms and conditions of employment including: hiring, firing, compensation, job assignments, shift assignments, discipline, and promotions.

Age is also addressed in the Age Discrimination Act of 1975. Under this act no person shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.

Employment discrimination based on race, color, religion, sex, or national origin is prohibited under Title VII of the Civil Rights Act of 1964. It is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment.

Under Title VI of the Civil Rights Act of 1964 no person on the basis of race, color, or national origin be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Equal Pay Act of 1963 prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964. Therefore, discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated the same as other applicants or employees with similar abilities or limitations.

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. Individuals cannot, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Americans with Disabilities Act of 1990 prohibits an employer from discriminating against a qualified applicant or employee because of his/her disability. To be protected individuals need to be qualified and able to perform the job with or without reasonable accommodations from the employer.

Discrimination based on disability in any program or activity receiving Federal financial assistance is prohibited under Sections 503 and 504 of the Rehabilitation Act of 1973.

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 prohibits discrimination based on veteran status in federally assisted programs and it requires affirmative action to employ and advance in employment of veterans. Veterans protected by this act are Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

Kansas Board of Regents Policy and Procedures Manual, Policy on Affirmative Action and Equal Opportunity, amended 6-22-00, page 58

3D.0106.02 DEFINITIONS

3D.0106.02.01 SEXUAL HARASSMENT

Sexual harassment is a form of sex discrimination that is illegal under Title VII of the Civil Rights Act of 1964 for employees, under Title IX of the Education Amendments of 1972 for students, and under Kansas Law. Retaliation against an individual for making a complaint of sexual harassment is also considered to be sex discrimination and is therefore likewise illegal. No member of the university community shall engage in sexual harassment. For the purposes of this policy sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  1. submission to such conduct is made, explicitly or implicitly, a term or condition of employment;
  2. submission to or rejection of such conduct by an individual is used as a basis for employment decisions which affect that individual;
  3. such conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive work environment; or
  4. such conduct is not legitimately related to the subject matter of a course. 

Sexual harassment encompasses any sexual attention that is unwanted. Examples of verbal or physical conduct that is prohibited include, but are not limited to:

< direct or implied threats that submission to sexual advances will be a condition of employment, work status, promotion, grades, or letters of recommendation;
< direct propositions of a sexual nature;
< a pattern of conduct causing discomfort, intimidation and/or humiliation that includes one or more of the following:

comments or gestures of a sexual nature;
sexually explicit statements, questions, jokes, or anecdotes;
unnecessary touching, patting, hugging, or brushing against a person's body;
remarks of a sexual nature about a person's clothing or body; or
remarks about sexual activity or speculations about previous sexual experience.

3D.0106.02.02 RACIAL AND/OR ETHNIC HARASSMENT

Racial and/or ethnic harassment is a form of discrimination that is illegal under Title VII of Civil Rights Act of 1964. No member of the university community shall engage in racial or ethnic harassment. Retaliation against an individual for making a complaint of racial and/or ethnic harassment will be treated as a violation of the racial and/or ethnic harassment policy. For the purpose of this policy, racial and/or ethnic harassment is defined as ethnic slurs and other verbal or physical conduct relating to race, ethnicity, or racial affiliation that:

1. has the purpose or effect of creating an intimidating, hostile, or offensive work or academic environment;
2. has the purpose or effect of unreasonably interfering with an individual's work performance, academic performance, living environment, if residing in University housing, or participation in any university-sponsored activity;
3. otherwise adversely affects an individual's academic or employment opportunities; or
4. is not legitimately related to the subject matter of a course.

Racial and/or ethnic harassment may be blatant or subtle. Examples of the conduct that is prohibited include, but are not limited to:

< derogatory name calling or language based on cultural stereotypes;
< incidents or behaviors which are derogatory to a racial or ethnic group; or
< repeated ignoring or excluding of one's presence or existence in a University setting.

3D.0106.02.03 OTHER HARASSMENT

No member of the university community shall engage in harassment on the basis of age, color, religion, marital status, national origin, disability status, veteran status, sexual orientation, or on any other factor that violates state or federal discrimination law. For the purposes of this policy, such aforementioned harassment is defined as unwelcome verbal and/or physical conduct which:

1. Has the purpose or effect of creating an intimidating, hostile, or offensive work or academic environment;
2. Has the purpose or effect of unreasonably interfering with an individual’s work performance, academic performance, living environment, if residing in University housing, or participation in any university-sponsored activity;
3. Otherwise adversely affects an individual’s academic or employment opportunities; or,
4. Is not legitimately related to the subject matter of a course.

3D.0106.03 ROLE OF THE AFFIRMATIVE ACTION OFFICER

While the Affirmative Action Officer is available to assist in the complaint process, he/she is not permitted to be an advocate for either party and is obligated to assure fairness to both parties and to protect the University’s interests. For further information, contact the Affirmative Action Officer.

3D.0106.04 AFFIRMATIVE ACTION ADVISORY COUNCIL

The Affirmative Action Advisory Council (hereafter referred to as the "Council") includes seven representatives appointed annually by the President of Emporia State University. Representatives, except for students, are appointed to serve three (3) year terms with at least one representative completing his/her term each year. Student representatives are appointed to serve one (1) year terms. However, a reappointment to serve consecutive terms may be considered with the approval of the Affirmative Action Officer and the President of the University.

The representatives will be appointed as follows: two faculty representatives, one professional staff representative from Student Affairs, one professional staff representative at-large, one representative from classified, and two representatives from the student body. The Affirmative Action Officer meets with the Council and serves as an ex-officio member.

If a Council member has a conflict of interest he/she may request to be excused from the meetings and hearing pertaining to the specific complaint(s). These requests should be made to and discussed with the Affirmative Action Officer.

The Council meets at least once a semester and more often as circumstances warrant. The purpose of the Council is to assist and advise the Affirmative Action Officer in the planning, development, and implementation of the program and to review Emporia State University's affirmative action policy and recommend changes as needed. The Council will also serve as the grievance committee when formal complaints alleging harassment and/or discrimination are filed.

3D.0106.05 GRIEVANCE PROCEDURES FOR FACULTY, STAFF, AND STUDENTS

(updated 2/09; updated 6/10)

Supervisors and administrators are obligated to report complaints of discrimination and/or harassment to the Affirmative Action Officer. In some instances the supervisor or administrator may have handled the complaint through the informal process; however the obligation to inform the Affirmative Action Officer still exists. Complaints must be filed within one year of the alleged behavior, are confidential, and will not be disclosed to anyone who does not have a need to know.

Procedures for the resolution of complaints should be thorough yet expeditious to the extent possible. These procedures are specifically designed to process complaints which fall within the purview of the university's affirmative action and harassment and/or discrimination policies and which involve university personnel or students as principals. Complaints filed under these grievance procedures involve discrimination and/or harassment and shall not be used in addition to other existing university grievance procedures.

Emporia State University has an informal and formal means to resolve complaints of harassment and/or discrimination. Informal complaints may be reported either in writing or orally whereby a resolution is agreed upon by both parties through informal means. Formal complaints must be reported in writing and result in a formal investigation, as described below. All complaints of harassment or discrimination should be reported to the Affirmative Action Officer.

A. Procedures

1. Informal Resolution

a. The individual making the complaint ("the complainant") should first discuss the allogation the allegation(s) with the individual(s) perceived as harasser(s). It is undersood that in some circumstances this step would not be possible or advisable.
b. If the discussion does not lead to a resolution or the complainant elects not to exercise the first step, the complainant may elect to discuss the allegation(s) with the department chair or director (hereafter referred to as the "responsible administrator") supervising the faculty, staff, or student alleged to be engaging in the discriminatory or harassing behavior. For students with complaints of harassment or discrimination by other students, the responsible administrator would be the Associate Vice President for Student Life.
c. The responsible administrator should conduct an inquiry into the matter. If a reasonable basis is determined, an attempt will be made to bring about a resolution to which both the complainant and the respondent(s) agree. If the responsible administrator is already aware of the behavior that is the subject of the complaint, the complainant should contact the Affirmative Action Officer. It is expected that informal resolution will be handled expeditiously and completed within a reasonable length of time. The Affirmative Action Officer is available for assistance in this process.
d. If a mutually satisfying resolution is not reached, a formal complaint may be filed to begin the Formal Resolution process.

2. Formal Resolution

a. The complainant should file a complaint with the Emporia State University Equal Opportunity Office. The complainant will complete a Formal Complaint form providing the basis of the alleged harassment and/or discrimination, a description of the incident(s) related to the alleged discrimination, and the remedy desired. The Affirmative Action Officer will conduct an interview with the complainant to clarify and get a thorough understanding of the complaint.
b. The Affirmative Action Officer will meet with the respondent as soon as possible and give him/her a verbal explanation and a written statement of the complaint. The respondent will then have the opportunity to respond. The respondent will be cautioned about retaliation and a follow-up meeting to discuss his/her response will be scheduled. Following the initial meeting the respondent will have 5 working days to give his/her formal, written response to the complaint.
c. At the follow-up meeting with the respondent, the Affirmative Action Officer will review the respondent's written response and conduct an interview to clarify and get a thorough understanding of his/her response.
d. In addition to interviews with the complainant and the respondent, the Affirmative Action Officer may interview other parties who have specific knowledge about the alleged incident(s). Individuals who are interviewed will be informed that confidentiality must be maintained and the fact that an investigation is underway should not lead to any conclusions or assumptions.
e. The Affirmative Action Officer will meet with the Council to share the details of the complaint. The Council will be given a verbal explanation and written statement of the complaint, the response, and the findings of the Affirmative Action Officer's investigation. If the Council determines that sufficient evidence to warrant a hearing has not been provided, both parties will receive a letter stating the steps that were taken and the determination that was made. If the Council determines that sufficient evidence to warrant a hearing has been provided, both parties will receive a letter stating the steps that were taken, the determination, and the next steps to be taken in the process. The Affirmative Action Officer will meet with the Council to define the area of harassment and/or discrimination involved in the complaint and to clarify the review criteria for evaluation of evidence.
f. A time and place convenient for all concerned parties will be set for the hearing by the Affirmative Action Officer. Both the complainant and the respondent will have the opportunity to bring witnesses to testify. A list of witnesses and any other evidence needs to be submitted to the Affirmative Action Officer at least 5 working days before the hearing date. The complainant and the respondent have the right to invite another individual to serve as an advisor during the hearing. The advisor is present solely to advise the represented party. The advisor shall not directly address or communicate with the Council or other parties involved in the hearing, nor shall he/she speak on the behalf of the individual being advised.
g. The Affirmative Action Officer will facilitate the hearing. The complainant will present his/her testimony and/or evidence followed by the respondent. Council members have the right to question all parties involved, while the complainant and respondent have the right to question witnesses. The complainant and respondent will both be given the opportunity to respond to comments made by the other.
h. Following the hearing the Council has 20 working days to submit a written report of its recommendation, signed by all members, to the Affirmative Action Officer. This report will include a recommendation concerning the disposition of the complaint. A Council member(s) may append to the report a dissent or non-concurrence with the majority opinion.
i. The Affirmative Action Officer will provide the report and recommendation made by the Council to the Vice President for Academic Affairs. Within 5 working days of receiving the report, the Vice President will consider the recommendations and communicate to the parties the action(s) to be initiated.
j. If either the complainant or respondent do not believe the resolution is satisfactory, a review may be requested. A written appeal of the final recommendation must be received in the President’s Office within 30 days of the individual’s receipt of the recommendation from the Vice President for Academic Affairs. The President will respond within 30 days after receiving the written appeal.

B. Confidentiality

It is the responsibility of the Affirmative Action Officer and the responsible administrator to whom a complaint is brought to maintain confidentiality while still allowing for an investigation, providing a remedy for individuals injured by discrimination or harassment, and allowing respondents to reply to complaints. Individuals involved in the investigation or hearing are also obligated to maintain confidentiality. The University cannot guarantee complainants, respondents, or witnesses absolute confidentiality because the University is obligated to investigate complaints.

C. Accommodations

Reasonable accommodations will be made for persons with documented disabilities. Involved parties with disabilities should contact the Affirmative Action Officer at least 3 days prior to the hearing so that accommodations can be made during the process. Students may contact the Director of Disability Services and/or the Affirmative Action Officer at least 3 days prior to the hearing so that accommodations can be made. All communication between students, the Office of Disability Services, and the Affirmative Action Officer will be strictly confidential.

D. Retaliation

Retaliation is generally any adverse action taken without a legitimate reason as a result of involvement in an administrative review of a complaint of unlawful discrimination or harassment. It is a violation of Emporia State University’s anti-harassment policies to retaliate against any individual involved in the complaint process. Appropriate sanctions will be imposed against persons who engage in retaliatory behavior. Respondents, complainants, witnesses, and other involved parties will be cautioned of inappropriate behavior in the form of retaliation.