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Handbook of Operating Procedures
Chapter 9 - General Provisions
Previous Publication Date: June 5, 2023
Publication Date: September 13, 2023
Policy Reviewed Date: September 13, 2023
Policy Owner: VP for Business Affairs


9.01 Nondiscrimination


I. POLICY STATEMENT


It is the policy of The University of Texas at San Antonio (UTSA) to maintain and cultivate an educational and working environment that provides equal opportunity to all members of the UTSA community. UTSA prohibits unlawful discrimination regardless of where it occurs if it impacts the educational or employment environment for any member of the university community.


II. RATIONALE


Maintaining and cultivating an environment free of unlawful discrimination enhances the educational and working experience for all members of the UTSA community, and advances the university’s mission.  This policy furthers an educational and working environment that provides equal opportunity to all members of the UTSA Community. In accordance with state and federal  laws, statutes and regulations, UTSA prohibits unlawful discrimination on the basis of race, color, sex (including pregnancy), religion, national origin, age, disability, veteran status, genetic information, gender identity, gender expression, and sexual orientation in all aspects of employment and education.


III. SCOPE


This policy and its complaint procedure apply to all UTSA administrators, faculty, staff, students, visitors and applicants for employment or admission. This policy does not apply to Sexual Harassment and Sexual Misconduct. The policy on Sexual Harassment and Sexual Misconduct is addressed in Chapter 9.24 of the Handbook of Operating Procedures (HOP).


IV. WEBSITE ADDRESS FOR THIS POLICY


http://www.utsa.edu/hop/chapter9/9.01.html


V. RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS


  1. Federal and State Statutes (This list is not inclusive of all laws prohibiting discrimination.)
    1. The United States Constitution, First Amendment
    2. Title IX of the Education Amendments of 1972
    3. Section 504 of the Rehabilitation Act of 1973
    4. The Uniformed Services Employment and Reemployment Rights Act
    5. Title VI of the Civil Rights Act of 1964
    6. Title VII of the Civil Rights Act of 1964
    7. The Age Discrimination Act of 1975
    8. Genetic Information Nondiscrimination Act of 2008 (GINA)
    9. Texas Labor Code Chapter 21
  2. UTSA or UT System or the Board of Regents’ Rules and Regulations
    1. UTSA HOP policy 2.34, Faculty Grievance Procedure
    2. UTSA HOP policy 3.03, Discipline and Dismissal of Classified Employees
    3. UTSA HOP policy 3.04, Grievances of Non-Faculty Employees
    4. UTSA HOP policy 9.02, Reasonable Accommodations
    5. UTSA HOP policy 9.24, Sexual Harassment and Sexual Misconduct
    6. Student Code of Conduct Section 701, et seq.
    7. UT System Regents Rules and Regulations, Rule 10701 Policy Against Discrimination
    8. UT System Regents Rules and Regulations, Rule 30107 Veteran’s Employment Preferences
    9. UT System Administrative Policy UTS105 Sexual Orientation Nondiscrimination Policy
  3. Other Policies and Standards
    1. U. S. Equal Employment Opportunity Commission - Discrimination
    2. U.S. Department of Education Office for Civil Rights

VI. CONTACTS


If you have any questions about this HOP 9.01, Nondiscrimination, contact the following office(s):

  1. EOS Director and Title IX Coordinator:
    Suzanne Patrick
    eos.office@utsa.edu
    210-458-4120
  2. Affirmative Action Coordinator:
    Assistant Director of Talent Acquisition
    Kris Cox
    HR@utsa.edu
    210-458-4250
  3. Campus ADA Coordinator:
    Dianne Hengst
    ada@utsa.edu
    210-458-4157

VII. DEFINITIONS


  1. Discrimination, 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 the basis of race, color, sex (including pregnancy), religion, national origin, age, disability, veteran status, genetic information, gender identity, gender expression, and sexual orientation. Discrimination includes conduct which, regardless of intent, has the effect or impact of creating an intimidating, hostile or offensive working or learning environment on the basis of any protected characteristics described in this policy.
  2. Harassment, is a form of discrimination, and is defined as verbal or physical conduct that is directed at an individual or group on the basis of race, color, sex (including pregnancy), religion, national origin, age, disability, veteran status, genetic information, gender identity, gender expression, and sexual orientation when such conduct is sufficiently severe or pervasive so as to have the purpose or effect of interfering with a specific individual or group of identifiable individuals’ academic or work performance; or of creating an intimidating, hostile, or offensive academic or work environment that is, or would be, offensive both subjectively to the complainant and objectively to a person of reasonable sensitivity and sensibilities. Constitutionally protected expression is not considered harassment under this policy.
  3. Retaliation, is defined as any adverse action threatened or taken against an individual for opposing a discriminatory practice or filing, supporting or providing information or assistance in connection with a complaint or charge of discrimination or for engaging in other legal protected activities. Retaliation includes, but is not limited to, intimidation, threats or harassment against any complainant, witness or third party.
  4. Complainant, is defined as the individual who submits a complaint alleging discrimination, including harassment as defined under this Policy. This person may or may not be the alleged victim of the alleged prohibited conduct.
  5. Respondent, is defined as is the individual who has been reported to be the perpetrator of prohibited conduct under this Policy.

VIII. RESPONSIBILITIES


  1. Faculty, staff, students, visitors and applicants for employment or admission
    1. Any person who believes that they have been subjected to prohibited discrimination should immediately file a complaint with UTSA’s Office of Equal Opportunity Services (the “EOS Office”) and utilize the procedures set forth in this policy.
    2. Individual(s) who witness or are aware of suspected incidents of prohibited discrimination are strongly encouraged to immediately report the incident to the EOS Office.
  2. Supervisor/Administrator/UTSA official
    1. Every supervisor, administrator and UTSA official is responsible to promptly report incidents of prohibited discrimination that come to their attention to the EOS Office.
  3. EOS Office
    1. Determines the immediate and effective steps to be taken to end prohibited discrimination and protect the alleged complainant.
    2. Advises alleged victims of their right to file a complaint and/or to participate in the applicable student, faculty or staff discipline process. The EOS Office also must assess the appropriate approach in the event an alleged victim does not wish to file a complaint and/or participate in an investigation or subsequent disciplinary process to ensure any alleged prohibited discrimination and harassment is properly addressed.
    3. Reviews and processes complaints of alleged prohibited discrimination.
    4. Consults with the Office of Legal Affairs and UTSA Police Department (UTSAPD), as appropriate, in cases involving potential criminal conduct to determine if law enforcement should be involved.
    5. Advises the alleged victim of the right to file a criminal complaint in cases involving potential criminal conduct.
    6. Explains the resolution options available to the parties under the Informal and Formal process outlined under Section IX of this policy, and proceeds accordingly
    7. Explains confidentiality of the parties and witnesses when participating in the process outlined in this policy.
  4. The Director of Equal Opportunity Services
    1. Has oversight responsibility over investigations of complaints.
    2. Meets with students, faculty and staff, visitors and applicants for employment or admission who wish to file a complaint under this policy or who are seeking information about the policy.
    3. Ensures that UTSA provides notice of its nondiscrimination policies and practices related to educational programs and activities for applicants, students, faculty, and staff in accordance with U.S. Department of Education regulations and guidelines.
    4. Delegates EOS-related tasks to EOS personnel as appropriate.
  5. EOS Investigator
    1. The trained University official assigned to conduct a thorough, reliable, and impartial investigation and compile the information that they have gathered into an Investigation Report.
    2. The Investigator is a neutral party in the investigation process.
  6. Appellate Officer
    1. Reviews appeals of dismissal of complaints pursuant to the complaint process
    2. Cannot be the investigator(s) or EOS Director in the complaint process
    3. Responsible for releasing a written decision within the timeline set out in this Policy
  7. UTSA Police Department (UTSA PD)
    1. Advises a complainant of their right to file a discrimination complaint under this policy to EOS in cases where an incident is reported to UTSA PD.
    2. Provides UTSA officials investigating discrimination complaints access to any related UTSA law enforcement records as permitted by state and federal law, and which does not compromise any criminal investigation.
  8. Counseling Services through Wellness 360
    1. Provides resources and support to UTSA students, including victims of unlawful discrimination. Students desiring counseling and mental health services should contact:
      1. UT Health San Antonio Wellness 360:
        https://wellness360.uthealthsa.org/wellness-360-at-utsa/
        Wellness 360 Counseling Center
        Phone: (210) 458-4140

        Main Campus:
        Recreation and Wellness Center (RWC), 1.810
        Downtown Campus:
        Frio Street Building, FS4.556
    2. Faculty and staff, including victims of unlawful discrimination, desiring counseling and mental health services should contact:
      1. Deer Oaks Employee Assistance Program
        1-866-EAP-2400
        1-866-327-2400
        24 Hour Access to
        Free Professional Support
        National Relay: 1-800-877-8339

IX. PROCEDURES


  1. Reporting Responsibilities
    1. UTSA encourages any person who believes that they have been subjected to prohibited discrimination to immediately file a complaint with UTSA’s Office of Equal Opportunity Services and to utilize the procedures set forth in this Policy. Every supervisor, administrator and UTSA official is responsible to promptly report incidents of prohibited discrimination and harassment that comes to their attention. All other faculty and staff, and students and visitors who witness or are aware of suspected incidents of prohibited discrimination are strongly encouraged to immediately report the incident to:

      Suzanne Patrick, JD, CCEP
      Director and Title IX Coordinator
      Equal Opportunity Services and Title IX Office
      North Paseo Building
      Suzanne.Patrick@utsa.edu
      210-458-4120
      https://www.utsa.edu/eos/
    2. Complaints may also be filed through the Compliance Hotline administered by the Office of Institutional Compliance & Risk Services at: https://www.utsa.edu/compliance/hotline.html
    3. Individuals who in good faith report a violation of law, policy, practice or procedure may not be penalized, disciplined, or punished for their good faith report.
    4. Reports of any prohibited discrimination should be filed as soon as possible after the conduct complained of arises. A delay in filing or reporting can greatly limit UTSA’s ability to stop the discrimination and take effective action against the alleged respondent. A signed complaint must be filed within 60 calendar days of the occurrence of the alleged violation in order to ensure prompt and efficient handling and resolution. At the discretion of EOS or the Executive Director of Institutional Compliance and Risk Services and Compliance Officer, the 60 calendar day filing period may be extended for good cause.
    5. The EOS Office may initiate a Formal Complaint on its own against a Respondent. The process for an EOS initiated complaint will follow the process identified below, except that the EOS Office does not become the Complainant. The individual who experienced the alleged prohibited conduct may be listed and considered the Complainant throughout the process including through a formal hearing.
  2. Resolution Options
    1. A person who believes that they have been subjected to prohibited discrimination or harassment in violation of this policy, and seeks redress may use either the Informal Resolution process or the Formal Complaint process, or both. Both processes are administered by the EOS Office. The Informal Resolution and Formal Complaint 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.
      1. Informal Resolution Process
        1. 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. Any person who believes that they have been subjected to discrimination or harassment may immediately file a Formal Complaint as described in Subsection (2) below. Informal Resolution may be an appropriate avenue when the conduct involved is not of a serious or repetitive nature and disciplinary action is not required to remedy the situation.
          1. The complainant is provided informal assistance in attempting to address conduct that may be harassment or discrimination if that person does not wish to file a Formal Complaint. Such assistance may include strategies to assist the individual to effectively inform the offending party that the complained of behavior is unwelcomed and/or offensive and should cease, action by an appropriate UTSA official to intervene to have the unwelcomed and/or offensive conduct cease, and/or modification of the situation in which the unwelcomed and/or offensive conduct occurred. However, UTSA may take additional action or formal action as appropriate, including disciplinary action, to ensure an environment is free of unlawful harassment and discrimination.
          2. Informal Resolutions will be completed within 60 (sixty) business days from receipt of a request for Informal Resolution except as may be extended by EOS for good cause.
      2. Formal Complaint Investigation Procedures
        1. This complaint procedure may be used for allegations of violations of this policy including complaints alleging unlawful gender discrimination (excluding sexual harassment or sexual misconduct) required under Title IX of the Education Amendments of 1972. As used herein, "complaint" is synonymous with "grievance."
          1. Formal Complaint
            1. In order to initiate the investigation process, the complainant should submit a signed complaint including a written statement that details the conduct that is the subject of the complaint, including the complainant's name, 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 UTSA employee, supervisor or University office receives a complaint with a written statement, the individual receiving the complaint shall immediately notify the EOS Office. EOS Complaint Forms are located on the EOS website located at www.utsa.edu/eos.
          2. Complaint Investigations.
            1. The EOS Office is responsible for investigating Formal Complaints. If the complaint is not in writing, the investigator should prepare a statement of what that investigator understands the complaint to be and seek to obtain verification of the complaint from the complainant.
            2. An EOS investigator shall review the complaint, and shall, as appropriate, 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 prohibited harassment or discrimination or retaliation under the policy; the complaint fails to allege any facts that suggest prohibited harassment or discrimination occurred; or the appropriate resolution or remedy has already been reached by the complaining party and the responding party, and the complaining party considers the matter resolved.
            3. If it is determined that a complaint will not be investigated for any reason, the EOS Office will contact the complainant and/or send the complainant a notification letter explaining the reason for the dismissal and informing the complainant that, within 15 (fifteen) business days of the notification, the complainant may appeal the decision not to proceed with a complaint investigation to the Appellate Officer named in the notification letter. The written appeal must explain why the decision to dismiss the complaint was in error. The Appellate Officer named in the notification letter will respond within twenty (20) business days of receipt of the appeal. The Appellate Officer's decision is final. If the decision to dismiss is overturned, the complaint is sent back to the EOS Office for investigation in accordance with the procedures outlined below.
            4. As part of the investigation process, the person alleged to have violated the policy, identified herein as respondent, shall be provided with a copy of the complaint and allegations or a statement from the EOS Office that explains the allegations as the EOS office and the complainant understand them to be. The respondent may respond in writing to the allegation within fifteen (15) business days . EOS may grant an extension for good cause.
            5. The complainant and the respondent may present any document or information that is believed to be relevant to the complaint within fifteen (15) business days, absent any extension for good cause granted by EOS.
            6. Any person thought to have information relevant to the complaint may be interviewed and such interviews will be appropriately documented. EOS will reach out to parties and witnesses and provide a reasonable time period for the parties and witnesses to ensure the accuracy of their statements made during interviews before completing the final report.
            7. Both the respondent and the complainant may recommend witnesses for interview and suggest questions that should be asked. Neither the complainant nor the respondent may attend investigation interviews of witnesses or participate in the gathering of evidence.
            8. The investigation of a complaint will be conducted as soon as possible after receipt of the written complaint. For investigations that exceed ninety (90) business days from the date an investigation commenced, a justification for the delay will be presented by the investigator to and reviewed by the Executive Director of Institutional Compliance and Risk Services and Compliance Officer overseeing the investigative office. The complainant and respondent, will be provided with an update on the progress of the investigation and issuance of the report.
            9. Upon completion of the investigation, a written report will be issued. The report shall include: a summary of the complaint, the policies implicated, an analysis of the facts discovered during the investigation, a summary of any relevant evidence, a finding of fact based on the investigation and relevant evidence, a finding of whether a policy violation can be substantiated based on the relevant evidence, and a recommendation that the appropriate supervisory authority take disciplinary action in accordance with applicable policies if a violation of the policy occurred. Factual conclusions shall be based upon a preponderance of the evidence standard. The EOS Office may also include observations learned during the investigation in the report and submit those observations to the appropriate University official (e.g., Vice President of Area, Dean or Department Chair). Such observations may address any workplace, classroom management, or other relevant issues regardless of whether prohibited harassment or discrimination can be substantiated. EOS may make referrals and/or recommendations based on those observations.
            10. A copy of the report will be provided to the complainant, the respondent, and the vice president or dean who has authority over the respondent, and if a student, either current or admitted, or if an applicant for admission is the respondent, to the Dean of Students (DOS). The vice president or dean may delegate responsibility for reviewing the EOS report and any submitted comments, and taking appropriate action identified in (xi) below. The complainant and respondent have seven (7) business days from the date the report is issued to submit written comments regarding the report to the appropriate vice president or dean.
            11. Within fifteen (15) business days of the deadline for receipt of comments, the appropriate vice president, dean or delegated individual, who has authority over the respondent, will review the report and record submitted by the investigator, any comments submitted by the complainant and respondent, and take appropriate action consistent with applicable policies and procedures and include one of the following actions:
              1. 1. Request that the EOS Office do further investigation into the complaint and notify the parties that an additional review has been requested;
              2. 2. If no additional investigation is requested, or once EOS has completed the additional review, issue a final decision in writing to both parties which will include one of the following:
                1. Concur with the EOS Office that a violation under this policy was not substantiated and dismiss the complaint;
                2. Affirm an EOS Office finding of a policy violation under this policy.

                  The decision maker must inform the complainant and respondent of the final decision in writing and send a copy of the written determination to the EOS Office, and other responsible parties, for continued monitoring as needed.
      3. Employee disciplinary actions that result from a finding of a policy violation will be addressed in accordance with UTSA’s applicable disciplinary policies and procedures. Disciplinary actions may include, but are not limited to, written reprimands, the imposition of conditions, reassignment, suspension, or dismissal. Implementation of disciplinary action against students (including admitted students or applicants for admission) will be referred to the Office of Student Conduct and Community Standards for processing in accordance with the Student Code of Conduct. The Student Code of Conduct can be accessed in the UTSA Information Bulletin at www.utsa.edu/infoguide. Student disciplinary actions may include, but are not limited to, probation, suspension, expulsion, or in the case of an admitted student not yet enrolled, revocation of admission.
        1. The respondent shall be afforded an opportunity to grieve/appeal any disciplinary action that results from a decision as provided in the established policies governing such, for:
          1. Faculty - HOP policy 2.34, Faculty Grievance Procedure
          2. Staff - HOP policy 3.03, Discipline and Dismissal of Classified Employees, or HOP policy 3.04, Grievances of Non-Faculty Employees;
          3. Students - Student Code of Conduct Section 701, et seq.
        2. The final decision regarding case outcomes and sanctions will be shared with the EOS Office by the adjudicating party for monitoring of outcomes and sanctions.
  3. Veteran's Employment Preference Complaint Procedure
    1. 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 EOS office. 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.
      1. Complaints should be submitted to EOS within 60 (sixty) business 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 business day filing deadline, the next business day after the decision or notification is counted as the first day.
      2. Applicants or employees must complete the Intake Form from EOS and may submit to EOS by mail, fax or e-mail.
      3. The complaint will be processed in accordance with the complaint procedures set forth in paragraph Section B “Resolution Options” above, except that Handbook of Operating Procedures deadlines set forth in that paragraph do not apply. A written decision will be mailed by the appropriate vice president or designee to the complainant no later than the 15th business day after the complaint is received by EOS. The appropriate vice president or designee will make a final determination concerning whether an individual was inappropriately denied a Veteran's Employment Preference.
  4. Pay Transparency Nondiscrimination Provision
    1. UTSA will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the University, or (c) consistent with the University’s responsibility to comply with open record laws.
  5. Provisions Applicable to all Complaints
    1. Assistance - During the complaint process, a complainant, respondent or witness may be accompanied by an uninvolved person of their choice as an advisor (an advisor may be an attorney) unless doing so would violate FERPA. This advisor may not actively participate in the meeting or interview. In addition, this advisor must not have any personal knowledge regarding the facts surrounding the complaint.
      1. 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 up to and including dismissal.
      2. Confidentiality and Documentation - UTSA shall document complaints through resolution. The EOS Office shall retain such documentation in accordance with State and Federal records laws and UTSA policy. 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 necessary to achieve a timely resolution of the complaint. Where the individual's desire to maintain anonymity constrains attempts at establishing facts and eliminating the potential harassment or discrimination, UTSA will balance the individual's desire for privacy and confidentiality against the responsibility of UTSA to provide an environment free of prohibited harassment and discrimination. If a complaint involves a student as a complainant, respondent, or witness, except as otherwise prescribed by law, the information provided to the parties will be redacted in accordance with the Family Educational Rights and Privacy Act (FERPA) and Section 51.971, Texas Education Code.
      3. No party may make an audio or video recording of any meetings, whether virtual or in person, throughout this process. Recording devices not are allowed during EOS/Title IX Office interviews or meetings. The EOS/Title IX Office personnel will take notes during all interviews with parties and witnesses.
      4. Deadlines - Deadlines in this procedure may be modified by the EOS Office upon a written showing of good cause by either party or UTSA.
      5. Concurrent Criminal or Civil Proceedings. Law enforcement, criminal or civil proceedings, findings, or outcomes are not determinative of any complaint or investigation, or any decision on disciplinary action. This policy and procedure are independent of any ongoing criminal or civil process, and UTSA has an independent duty to address any complaint filed under this policy.
  6. Dissemination of Policy and Education
    1. The policy will be made available to all faculty, employees and students online and in publications. Regular compliance training will provide guidance to employees and faculty about UTSA’s Nondiscrimination Policy, will include information about complaint procedures, and will refer individuals to designated offices or officials for additional information. Periodic notices will be sent to students, faculty, and staff about UTSA’s Nondiscrimination Policy. The notice will specify the right to file a complaint under this Policy and will refer individuals to designated offices or officials for additional information.
      1. UTSA shall periodically educate and train employees and supervisors on the policy, including programming on conduct or behavior that could constitute a policy violation. Preventive education and training programs will be provided to students, faculty and staff.
      2. In accordance with Section 21.010, Texas Labor Code, all UTSA employees, including faculty, are required to complete discrimination training no later than the 30th calendar 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.
      3. Each vice president, dean 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 UTSA community. If problems are noted or if the circumstances surrounding a complaint are not remedied, the EOS Office shall be notified immediately for assistance in taking corrective actions.
  7. Title IX Coordinator
    1. Suzanne Patrick
      EOS Director and Title IX Coordinator
      Office of Equal Opportunity Services
      North Paseo Building Suite 440
      eos.office@utsa.edu
      210-458-4120

X. SPECIAL INSTRUCTIONS FOR INITIAL IMPLEMENTATION


None


XI. FORMS AND TOOLS/ONLINE PROCESSES


None


XII. APPENDIX


None

XIII. Dates Approved/Amended


09-13-2023
06-05-2023

03-31-2021

03-12-2021
01-22-2021
12-18-2020 (Ref Citation Change)
04-03-2020
09-01-2019
09-17-2015
08-01-2013