Chapter 9 - General Provisions
Publication Date: February 12, 2010
Responsible Executive: VP for Business Affairs
9.01 Nondiscrimination and Sexual Harassment and Sexual Misconduct
- Statement of Policy
It is the policy of The University of Texas at San Antonio (UTSA) to provide an educational and working environment that provides equal opportunity to all members of the university community. In accordance with federal and state law, the university prohibits unlawful discrimination on the basis of race, color, sex, religion, national origin, age, disability, citizenship, and veteran status in all aspects of employment and education. Sexual misconduct and sexual harassment in any form will not be tolerated and individuals who engage in such conduct will be subject to disciplinary action. Discrimination on the basis of sexual orientation is also prohibited pursuant to university policy.
- Scope of Policy
This policy and its complaint procedure apply to all university administrators, faculty, staff, students, visitors and applicants for employment or admission. This policy is the principal prohibition of all forms of discrimination on campus, except as follows:
The university's controlling policy and procedure relating to disability discrimination can be found at Handbook of Operating Procedures (HOP) policy 9.02, Persons with Disabilities.
- Discrimination, including harassment, is defined as 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 on account of race, color, sex, religion, national origin, age, disability, citizenship, veteran status or sexual orientation.
- Harassment, as a form of discrimination, is defined as verbal or physical conduct that is directed at an individual or group because of race, color, sex, religion, national origin, age, disability, citizenship, veteran status or sexual orientation when such conduct is sufficiently severe, pervasive or persistent so as to have the purpose or effect of interfering with an individual's or group's academic or work performance; or of creating a hostile academic or work environment. Constitutionally protected expression cannot be considered harassment under this policy.
- Sexual misconduct includes unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature directed toward another individual that does not rise to the level of sexual harassment but is unprofessional and inappropriate for the workplace or classroom.
- Sexual harassment is a form of sex discrimination and includes unwelcome sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of employment or student status;
- Submission to or rejection of such conduct is used as a basis for evaluation in making personnel or academic decisions affecting that individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's performance as an administrator, faculty member, staff or student, or creating a hostile environment.
- Examples of behavior that could be considered sexual misconduct or sexual harassment include but are not limited to:
- Physical contact of a sexual nature including touching, patting, hugging, or brushing against a person's body;
- Explicit or implicit propositions or offers to engage in sexual activity;
- Comments of a sexual nature including sexually explicit statements, questions, jokes or anecdotes; remarks of a sexual nature about a person's clothing or body; remarks about sexual activity; speculation about sexual experience;
- Exposure to sexually oriented graffiti, pictures, posters, or materials; and/or
- Physical interference with or restriction of an individual's movements.
Constitutionally protected expression cannot be considered harassment under this policy.
- Retaliation is defined as any action that adversely affects the employment or institutional status of an individual for exercising the right to make a complaint or for aiding another individual in the presentation of a complaint. Individuals shall not be penalized, disciplined, or prejudiced who in good faith reports a violation of policy, procedure, or law.
- Resolution Options
A person who believes that he or she has been subjected to discrimination or harassment including sexual harassment or sexual misconduct in violation of this policy and seeks to take action may use either the informal resolution process or the formal complaint process, or both. The informal resolution and formal complaint resolution processes described in this policy are not mutually exclusive and neither is required as a pre-condition for choosing the other; however, they cannot both be used at the same time.
- Informal Resolution Process
This process may be used as a prelude to filing a formal complaint or as an alternative. It is not necessary that this option be used. Anyone who believes that he or she has been subjected to discrimination may immediately file a formal complaint as described in Section VI of this policy. Informal resolution may be an appropriate choice when the conduct involved is not of a serious or repetitive nature and disciplinary action is not required to remedy the situation. No formal investigation is involved in the informal resolution process.
- Reporting - Individuals wishing to utilize the informal resolution process should contact the Equal Employment Opportunity Officer (EEO).
- Informal Assistance - The individual is provided assistance in attempting to resolve possible discrimination if the individual does not wish to file a formal complaint. Such assistance includes strategies for the individual to effectively inform the offending party that his or her behavior is offensive and should cease, action by an appropriate university official to stop the offensive conduct and modification of the situation in which the offensive conduct occurred. However, the university may take more formal action to ensure an environment is free of discrimination.
- Timeframe - Informal resolutions will be completed within 30 (thirty) calendar days from receipt of a request for informal resolution.
- Confidentiality and Documentation - The university will document informal resolutions. The Office of Equal Opportunity Services (EOS) will retain such documentation. The university will maintain confidentiality to the extent permitted by law. Where the individual's desire to maintain anonymity constrain attempts at establishing facts and eliminating the potential harassment, the university will attempt to find the right balance between the individual's desire for privacy and confidentiality with the responsibility of the university to provide an environment free of discrimination.
- Complaint Procedures
This complaint procedure also constitutes the grievance procedure for complaints alleging unlawful sex discrimination required under Title IX of the Education Amendments of 1972. As used herein, "complaint" is synonymous with "grievance."
- Equal Employment Opportunity (EEO) Officer
The Senior Equal Opportunity Investigator of EOS serves as UTSA's EEO Officer and is authorized to investigate complaints based on discrimination. The EEO Officer may be reached at 210-458-4120.
- UTSA encourages any person who believes that he or she has been subjected to discrimination to immediately report the incident to his or her supervisor, to the appropriate supervisor of the accused faculty member or employee, to the EEO Officer, or when a student is the accused individual, to the Coordinator for Student Conduct & Community Standards. The complainant will be advised of the procedures for filing a formal complaint of discrimination. When a supervisor or the Coordinator for Student Conduct & Community Standards receives a complaint, he or she will immediately notify the EEO Officer.
- Complaints should be filed as soon as possible after the conduct giving rise to the complaint, but no later than thirty (30) calendar days after the event occurred. In the case of a currently enrolled student, if the last day for filing a complaint falls prior to the end of the academic semester in which the alleged violation occurred, then the complaint may be filed within thirty (30) calendar days after the end of that semester.
- In order to initiate the investigation process, the complainant should submit a signed, written statement setting out the details of the conduct that is the subject of the complaint, including the complainant's name, signature, and contact information; the name of the person directly responsible for the alleged violation; a detailed description of the conduct or event that is the basis of the alleged violation; the date(s) and location(s) of the occurrence(s); the names of any witnesses to the occurrence(s); the resolution sought; and any documents or information that is relevant to the complaint. While an investigation may begin on the basis of an oral complaint, the complainant is strongly encouraged to file a written complaint. When a supervisor or the Coordinator for Student Conduct & Community Standards receives a complaint with a written statement, he or she shall immediately notify the EEO Officer. Complaint forms are located on the EOS website.
- Complaint Investigation
- The EEO Officer and/or the Equal Opportunity (EO) Investigator are responsible for investigating formal complaints. If the complaint is not in writing, the investigator should prepare a statement of what he or she understands the complaint to be and seek to obtain verification of the complaint from the complainant.
- Within ten (10) work days of receipt of a complaint, the EEO Officer, as appropriate, may either dismiss the complaint or authorize an investigation of the complaint.
- A complaint may be dismissed if the facts alleged in the complaint, even if taken as true, do not constitute discrimination; the complaint fails to allege any facts that suggest discrimination occurred; or the appropriate resolution or remedy has already been achieved, or has been offered and rejected.
- If it is determined that a complaint will not be investigated, the EEO Officer will send the complainant a notification letter explaining the reason for the dismissal and informing the complainant that, within 15 (fifteen) work days of the notification, he or she may appeal the decision not to proceed with a complaint investigation to the Chief Legal Officer. The written appeal must explain why the decision to dismiss the complaint was in error. The Chief Legal Officer will respond within twenty (20) work days of receipt of the appeal. The Chief Legal Officer's decision is final. If the decision to dismiss is overturned, the complaint is sent back to the EEO Officer for investigation in accordance with the procedures outlined below.
- As part of the investigation process, the accused individual shall be provided with a copy of the complaint and allegations. The accused will be allowed a reasonable time to respond in writing.
- The complainant and the accused individual may present any document or information that is believed to be relevant to the complaint.
- Any persons thought to have information relevant to the complaint will be interviewed and such interviews will be appropriately documented.
- The investigation of a complaint will be conducted as soon as possible after receipt of the written complaint. In investigations exceeding sixty (60) work days, a justification for the delay will be presented to and reviewed by the Chief Legal Officer overseeing the investigative office. The complainant, accused individual and appropriate supervisor will be provided an update on the progress of the investigation after the review.
- Upon completion of the investigation, a written report will be issued. The report shall include: a recommendation of whether a violation of the policy occurred, an analysis of the facts discovered during the investigation, any relevant evidence, and recommended disciplinary action if a violation of the policy occurred. EOS may make recommendations to resolve any workplace issues it may discover during the investigation process regardless of whether discrimination or sexual harassment can be substantiated.
- A copy of the report will be provided to the complainant, the respondent, and the vice president who has authority over the respondent. The complainant and respondent have seven (7) work days from the date of the report to submit comments regarding the report to the appropriate vice president. However, if a complaint is filed against a student, then the complainant and respondent may not receive a copy of the report or be allowed to comment on the report due to the Family Education Rights and Privacy Act's restrictions on disclosure of educational records. The vice president can delegate responsibility for responding to comments submitted by the complainant or the respondent.
- Within ten (10) work days of receiving any comments submitted by the complainant or respondent the appropriate vice president who has authority over the respondent and will take one of the following actions:
- Notify both the complainant and respondent that a review is in progress;
- Request further investigation into the complaint;
- Dismiss the complaint if the results of the completed investigation are inconclusive or there is insufficient reasonable, credible evidence to support the allegation(s); or
- Find that the policy was violated.
A decision that this policy was violated shall be made upon the record provided by the investigator and any comments submitted by the complainant or respondent; and shall be based on the totality of circumstances surrounding the conduct complained of, including but not limited to: the context of that conduct, its severity, frequency, whether it was physically threatening, humiliating, or was simply offensive in nature. Facts will be considered on the basis of what is reasonable to persons of ordinary sensitivity and not on the particular sensitivity or reaction of an individual.
- If the appropriate vice president who has authority over the respondent determines that this policy was violated, he or she will take immediate action that is appropriate for the severity of the conduct or delegate such authority and action to the subordinate supervisor, if appropriate. Disciplinary actions can include, but are not limited to, written reprimands, the imposition of conditions, reassignment, suspension, and dismissal.
- The complainant and the respondent shall be informed in writing of the administrative official's decision and be provided a copy of the final statement of findings. However, if a complaint is filed against a student, information sent to the complainant will be in compliance with the Family Education Rights and Privacy Act.
- In the case of a student against whom disciplinary action is recommended, the EEO Officer will notify the Coordinator for Student Conduct & Community Standards.
- Implementation of disciplinary action against faculty, staff, and students will be handled in accordance with the university's policy and procedures for discipline and dismissal of faculty, staff, and students.
- Veteran's Employment Preference Complaint Procedure
The University of Texas System Board of Regents has delegated authority to the president to review all written complaints from individuals who believe they did not receive a veteran's employment preference relating to hiring or to retention of the individual if the institution reduced its work force. The president has delegated review of all written complaints to the university EEO officer. UTSA has adopted the following grievance procedure in order to provide prompt and equitable resolution of complaints alleging any action in violation of state provisions for veteran's preference.
- Complaints should be submitted to EOS within 60 (sixty) work days from the date after the applicant or employee received notification of non-selection or reduction in force status, or became aware of the disputed decision. In computing the 60th workday filing deadline, the next workday after the decision or notification is counted as the first day.
- Applicants or employees must complete the Intake Form from EOS and may submit to EOS by mail, fax or e-mail.
- Upon receipt of the complaint, a thorough investigation shall be conducted by EOS, who has been delegated by the president to review these matters.
- The complaint will be processed in accordance with the complaint procedures set in paragraph VI, Section 9.01, Nondiscrimination and Sexual Harassment and Sexual Misconduct, Handbook of Operating Procedures. When a Veteranâ€™s Employment Preference complaint is filed, the deadlines set in Section 9.01 do not apply. A written decision will be mailed by the appropriate vice president to the complainant no later than the 15th work day after the complaint is received by EOS. The appropriate vice president will make a final determination concerning whether an individual was denied a Veteran's Employment Preference.
- Provisions Applicable to all Complaints
- Assistance - During the complaint process, a complainant or respondent may be accompanied by a person of his or her choice; however, this individual may not actively participate in the meeting or interview.
- Retaliation - An administrator, faculty member, student or employee who retaliates in any way against an individual who has brought a complaint pursuant to this policy or an individual who has participated in an investigation of such a complaint is subject to disciplinary action, including dismissal.
- False Statements - Any person who knowingly and intentionally files a false complaint under this policy or makes false statements in the course of the investigation is subject to disciplinary action up to and including dismissal from the university.
- Confidentiality and Documentation - The university shall document complaints and their resolution. EOS shall retain such documentation. To the extent permitted by law, complaints and information received during the investigation will remain confidential. Relevant information will be provided only to those persons who need to know in order to achieve a timely resolution of the complaint.
- No recording devices are allowed during EOS interviews or meetings and no recording is allowed of telephone conversations.
- Dissemination of Policy
- The policy will be made available to all faculty, employees and students. Annual compliance training will provide guidance to employees and faculty about the university's Nondiscrimination Policy and will include information about complaint procedures and will refer individuals to designated offices or officials for additional information.
- The university may periodically educate and train employees and supervisors regarding the policy and conduct that could constitute a policy violation.
- In accordance with Texas Labor Code 21.010, all UTSA employees, including faculty, are required to complete discrimination training including sexual harassment no later than the 30th day after the date the employee is hired and shall complete supplemental training every two years. The electronic training record is the acknowledgement and verification that the training has been conducted.
- The vice president or designee will periodically assess their area of authority to make sure a climate is maintained that promotes an educational and working environment that provides equal opportunity to all members of the university community. If problems are noted or if the circumstances surrounding a complaint are not remedied, EOS will be notified immediately for assistance in taking corrective actions.
- Equal Employment Opportunity (EEO) Officer