UPPS 04.04.46 - Prohibition of Discrimination
Prohibition of Discrimination
UPPS No. 04.04.46
Issue No. 9
Effective Date: 6/17/2019
Next Review Date: 10/01/2022 (E3Y)
Sr. Reviewer: Director, Equal Opportunity and Title IX
* Texas State University is committed to an inclusive educational and work environment that provides equal opportunity and access to all qualified persons. Texas State, to the extent not in conflict with federal or state law, prohibits discrimination on the basis of race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression.
This policy describes reporting procedures for filing discrimination complaints with the Office of Equal Opportunity and Title IX and the process used to investigate and resolve them.
Texas State forbids discrimination in any university activity or program. Faculty members, staff employees, and students who discriminate against others in connection with a university activity or program will be considered to have violated this policy and are subject to disciplinary sanctions.
Discrimination – conduct directed at a specific individual or a group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education because of their race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression.
Harassment – a form of discrimination consisting of unwelcome verbal, written, graphic, or physical conduct that:
is directed at an individual or group of individuals because of their race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression; and
is sufficiently severe or pervasive so as to interfere with an individual’s employment, education, academic environment, or participation in institution programs or activities; and creates a working, learning, program, or activity environment that a reasonable person would find intimidating, offensive, or hostile.
To constitute prohibited harassment, the conduct must be directed at the individual or group based on a protected class. Conduct not based on one of the protected classes outlined in this definition will not be actionable under this policy.
To constitute prohibited harassment, the conduct must be both objectively and subjectively harassing in nature. Harassment does not have to be targeted at a particular individual in order to create a harassing environment, nor must the conduct result in a tangible injury to be considered a violation of this policy. Whether the alleged conduct constitutes prohibited harassment depends on the totality of the particular circumstances, including the nature, frequency, and duration of the conduct in question, the location and context in which it occurs, and the status of the individuals involved.
Respondent – the person reported to have discriminated against another person.
Complainant – the people who believe they are the victim of discrimination.
* Mediation – a form of alternative dispute resolution outside of the university’s formal complaint processes in which an impartial person, a mediator, facilitates communication between disputing parties to promote reconciliation, settlement, and understanding.
An employee may request mediation to resolve a discrimination complaint:
prior to filing an internal discrimination complaint; or
after filing an internal discrimination complaint, but before a decision is made on the case.
The parties to the dispute must agree to:
participate in the mediation;
attend the mediation with intent to resolve the complaint; and
meet the terms of any mutually-agreed-upon resolution.
Upcoming mediation will suspend the investigation of a formal complaint pending mediation results. Should mediation not result in resolution, the investigation will resume.
Either party may contact the Office of Equal Opportunity and Title IX or Human Resources to obtain additional information on the process or refer to UPPS No. 04.04.41, Staff Employee Mediation and Grievance Policy.
Confidentiality – When considering reporting options, complainants should be aware that certain university personnel can maintain strict confidentiality, while others have mandatory reporting and response obligations. University personnel who are not confidential reporters, as described in Section 02.07, and who receive a report of alleged discrimination are required to share the information with appropriate administrative authorities for investigation and follow up. Texas State will protect complainant’s confidentiality by refusing to disclose their information to anyone outside the university to the extent permitted by law. As for confidentiality of information within Texas State, the university must balance a complainant’s request for confidentiality with its responsibility to provide a safe and non-discriminatory environment for the university community.
Employees Required to Maintain Confidentiality – The following individuals are required to maintain confidentiality and shall not report any information about an incident without the complainant’s permission:
medical professional, including physical and mental health professionals, licensed counselors who provide mental health counseling to members of the university community, and those who act under the supervision of a health care employee; and
individuals whose scope of employment include confidentiality requirements under Texas law.
* Management Directed Inquiry (MDI) – proactive measure requested by a vice president, dean, director, chair, or department head to address potential personnel concerns regarding discrimination without a formal complaint being filed. The Office of Equal Opportunity and Title IX conducts an MDI and provides the requesting manager with the results.
PROCEDURES FOR REPORTING INSTANCES OF DISCRIMINATION
The university encourages its faculty, staff, students, and guests who believe they are victims of discrimination to seek resolution through university-supported informal (see Section 05.) and formal (see Section 06.) procedures. The university allows group filing for individuals who believe the same individual discriminated against them.
* Complainants should report discrimination in writing as soon as possible following the alleged incident to the Office of Equal Opportunity and Title IX.
RESPONSIBILITIES OF MEMBERS OF THE UNIVERSITY COMMUNITY REGARDING DISCRIMINATION REPORTS
* Anyone in a supervisory position (i.e., vice presidents, deans, directors, chairs, department heads, and supervisors) is REQUIRED to notify the director for the Office of Equal Opportunity and Title IX when they learn of a possible instance or allegation of discrimination.
* Anyone, who is NOT in a supervisory position, is ENCOURAGED to notify the director when they learn of a possible instance of discrimination.
An exception to this general reporting requirement occurs when a faculty member alleges discrimination or harassment as part of a request for a hearing related to the denial of tenure or promotion because, under The Texas State University System (TSUS) Rules and Regulations, (Chapter V, Section 4.4) such a faculty member must make this allegation in writing directly to the president.
The university may not dismiss a formal report until it resolves the incident, in accordance with TSUS Rules and Regulations, Chapter VII, Section 4.43. If the person decides not to file a formal complaint, the university may still take action, including conducting an MDI.
If a person knowingly files a false charge against any member of the university community, a contractor, or a visitor to campus, the university may subject that person to disciplinary action under university and TSUS Rules and Regulations.
PROCEDURES FOR INFORMAL COUNSELING AND RESOLUTION OF DISCRIMINATION REPORTS
* Because of the sensitive nature of discrimination, the university will make every reasonable effort to provide informal avenues for counseling and resolution. As part of an informal process, the complainant can receive support and assistance from the Director.
* The complainant may communicate directly with the person whose conduct is offensive and may bring a third party. Before adopting a direct approach, the complainant may seek advice about how best to approach the respondent. The university encourages students to consult the Counseling Center or the Dean of Students’ office; staff and faculty may seek assistance from a supervisor or the Director. A person who believes they are a victim of discrimination:
may seek direct resolution of the matter through discussions with the respondent; or
may seek to resolve the matter by sending the respondent a letter through the U.S. mail, certified, return receipt requested. The letter should include the following three parts:
a factual account of what happened;
a description of how the writer feels about what happened; and
what the writer wants to happen next (e.g., the behavior to stop).
If no resolution is forthcoming, the person is strongly encouraged to report the incident or incidents to the Office of Equal Opportunity and Title IX. The person who receives the report must notify the director as directed in Section 04.01.
* If a direct resolution is deemed inappropriate, the person should seek other informal counseling and resolution with a supervisor, department chair or head, Dean of Students’ Office, academic dean or advisor, counselor, or the director.
The person reporting the discrimination and the recipient of the report may discuss the specifics of the situation and explore possible avenues for informal resolution which may include how to file a formal complaint, if desired (see Section 06.).
Recipients of the report who are supervisors must consult with the director. After consultation with the director, the recipient of the report may attempt resolution while maintaining the anonymity of the person reporting the incident. The recipient of the report must take action toward resolution within 30 calendar days of receiving the report and provide written notification of this action to the director.
Following mandatory consultation with the director, the supervisor or administrator will base corrective action on a full review of the circumstances. If the supervisor finds discrimination, appropriate action directed toward the respondent will be taken.
The supervisor is responsible for notifying the director and the parties involved, in writing, of the efforts at informal resolution of a discrimination report.
* If the person claiming discrimination is dissatisfied with the informal resolution or if the 30-calendar-day timeframe has lapsed without resolution, they may file a formal discrimination complaint in writing with the director as soon as possible following the alleged incident (see Section 06.).
PROCEDURES FOR FORMALLY INVESTIGATING REPORTS OF DISCRIMINATION
* A person who wishes to file a formal complaint of discrimination must notify the director by mail, phone, or email.
Complainants may include a signed letter or use the Complaint Information form available in the Office of Equal Opportunity and Title IX as soon as possible following the alleged incident. The correspondence should include:
the complainant’s name, address, and, if possible, a telephone number where the director may reach the complainant during business hours;
names and, if known, job title, department, and contact information of the person or persons alleged to have committed the discriminatory act; and
a description of the alleged discriminatory act or acts in sufficient detail to enable the director to understand what occurred, when it occurred, and the basis for the alleged discrimination (race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression).
Email – Complainants may file a complaint using the following email address: email@example.com. Complainants must use the same procedures as above with electronic signature.
Phone – Complainants may contact the director at the following phone number: 512.245.2539.
The director will keep the information confidential to the extent permitted by law.
* The director will
initiate an investigation of an allegation of discrimination. This includes providing the respondent with written notification of the complaint in sufficient detail to allow them an opportunity to respond and conducting separate interviews with the complainant and the respondent, as well as other witnesses, if necessary. The director will issue a finding within 90 calendar days of the initial report.
review all aspects of the complaint;
only investigate reports of discrimination received per Section 06.01;
ascertain the desired resolution from the complainant;
obtain pertinent information from appropriate witnesses and other sources;
arrange interim relief measures, if necessary, in order to ensure that a hostile environment is not created through or after the investigation;
notify the TSUS Office of General Counsel when an attorney serves as advisor for a party to the complaint. Either the complainant or respondent may use an advisor, including legal counsel for advisory purposes. The advisor may only advise the party and may not otherwise participate in the investigation;
include in the written report, a recommendation that management consult with Human Resources or Academic Affairs, as appropriate, the TSUS Office of General Counsel on appropriate corrective actions for employees, and the Dean of Students’ Office for appropriate academic actions for students if the Director ascertains that a policy violation of discrimination has occurred;
determine if the conduct was still inappropriate, even if it finds that no discrimination occurred; and
issue a final report to the complainant, respondent, and the appropriate vice president in the reporting line.
* The vice president in the respondent’s reporting line, or other designated sanctioning authority determined by the director, in consultation with the TSUS Office of General Counsel, will issue and impose an appropriate sanction as soon as possible, but no later than 15 calendar days after receiving the final written report. The vice president, or other designated sanctioning authority, will notify, in writing, the complainant, respondent, and director of the sanction imposed.
* The decision of the vice president or other designated sanctioning authority is final. The sanction will be imposed immediately by the designated administrative authority, who will continually monitor the circumstances to ensure a remedied situation.
If the respondent receives a sanction for the discrimination, he or she may appeal only the action’s severity through the regular grievance process (see UPPS No. 04.04.41, Staff Employee Mediation and Grievance Policy or AA/PPS No. 04.02.32, Faculty Grievance Policy).
Texas State prohibits retaliation against a person who, in good faith, files a discrimination complaint, assists, or participates in the investigation of a report of discrimination or opposes discrimination.
* The director may administratively close or dismiss a formal discrimination complaint under the following circumstances:
complainant lacks standing to file a complaint under this policy;
university cannot locate complainant;
complainant resigns from employment;
university approves complainant’s request for case dismissal;
parties negotiate full remedy or settlement; or
for other reasons identified in applicable laws, regulations, or policies.
NOTE: Administrative closure does not prohibit issues raised in the complaint from being reviewed under Section 02.07.
PROCEDURES FOR PUBLICATION AND DISSEMINATION OF THIS POLICY
* The director will provide training to all full-time regular employees through brochures, workshops, or other appropriate means, concerning:
definitions of discrimination;
examples of incidents of discrimination;
descriptions of how and when to report;
descriptions of available informal and formal resolution mechanisms; and
sources of support and information for complainants and respondents, as mandated by Texas Law.
Chapter 21, Texas Labor Code, requires all full-time employees to receive supplemental training biennially. While not required by law, part-time employees may attend the training. Following the training, an electronic record will be kept to verify completion.
Deans and heads of administrative units should discuss this policy and issues of discrimination at meetings of faculty, staff, graduate student employees, and teaching assistants at least once each year.
* The director will discuss this policy in orientation programs for new faculty and staff employees within 30 calendar days of employment as mandated by Texas Law.
* The director will provide training programs for persons who advise and counsel students or respond to crisis situations. These programs will include information about discrimination (e.g., definitions, informal counseling, and formal reporting procedures).
* The dean of Students, the dean of the University College, and the dean of The Graduate College will collaborate with the Office of Equal Opportunity and Title IX to provide discrimination awareness and educational programs for students. While the university should direct this educational program toward new undergraduate and graduate students, it should not restrict it to them.
The university may impose the following sanctions for violation of this policy:
for faculty or staff – disciplinary action up to and including termination of employment;
for students – disciplinary action up to and including dismissal from the university; and
for contractors – cancellation of their contract with Texas State or other appropriate action.
REVIEWERS OF THIS UPPS
* Reviewers of this UPPS include the following:
Position Date Director, Office of Equal Opportunity and Title IX October 1 E3Y Chair, Staff Council October 1 E3Y Chair, Faculty Senate October 1 E3Y Associate Vice President for Student Affairs and Dean of Students October 1 E3Y Co-Chairs, President’s Council For Women October 1 E3Y
* CERTIFICATION STATEMENT
This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.
Director, Office of Equal Opportunity and Title IX; senior reviewer of this UPPS
Vice President for University Administration