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6:004 Discrimination and Harassment Complaints (other than Complaints of Sexual Violence and Stalking) - Complaint and Investigation Procedure

 

Austin Peay State
University
Discrimination and Harassment Complaints (other than Complaints of Sexual Violence and Stalking) - Complaint and Investigation Procedure

POLICIES
Issued:  March 25, 2017

Responsible Official:  Director of Equal Opportunity and Affirmative Action

Responsible Office:  Office of Equal Opportunity and Affirmative Action
 

 


Policy Statement


Austin Peay State University (APSU) shall fully comply with the applicable provisions of federal and state civil rights laws, including but not limited to, Executive Order 11246, as amended; the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act of 1990, as amended; the Vietnam Era Veterans Readjustment Act of 1974, as amended; the Equal Pay Act of 1963, as amended; Titles VI and VII of the Civil Rights Act of 1964, as amended; Title IX of the Educational Amendments of 1972, as amended; the Age Discrimination in Employment Act of 1967; the Age Discrimination Act of 1975; the Pregnancy Discrimination Act; the Genetic Information Nondiscrimination Act of 2008; Section 485(f) of the HEA, as amended by Section 304 of the Violence Against Women Reauthorization Act of 2013, and regulations promulgated pursuant thereto. APSU will promote equal opportunity for all persons without regard to race, sex (including pregnancy), sexual orientation or gender identity, age (as applicable), color, religion, ethnic or national origin, disability status, status as a covered veteran, genetic information, and any other legally protected class.

APSU affirms that it will not tolerate discrimination against any employee or applicant for employment because of race, sex (including pregnancy), sexual orientation or gender identity, age (as applicable), color, religion, ethnic or national origin, disability status, status as a covered veteran, genetic information, and any other legally protected class.

Similarly, in compliance with Title IX of the Educational Amendment of 1972, as amended, APSU shall not, on the basis of sex, subject any student to discrimination under any educational program.  No student shall be discriminatorily excluded from participation in or denied the benefits of any educational program on the basis of a protected status.


Purpose


The purpose of this policy is to provide a procedure for the orderly resolution of complaints of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex (other than sexual violence and stalking), sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law related to Austin Peay State University (APSU). 

Complaints related to sexual violence, including sexual assault, domestic violence, dating violence, and stalking will be addressed under the procedure set forth in APSU Policy 6:001 (Sexual Violence and Stalking).


Contents


Definitions
-Discrimination
-Harassment
-Consensual Relationships

Procedures
-Scope
-Reporting, Cooperation and Training
-Procedures
-Other Applicable Procedures

Related Form
-Discrimination/ Harassment Complaint Form     

Links
-APSU Policy 6:001


Definitions


Discrimination

Discrimination may occur by:

  1. Treating individuals less favorably because of their race, color, religion, creed, ethnic or national origin, sex, sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran genetic information or any other category protected by federal or state civil rights law; or,
  2. Having a policy or practice that has a disproportionately adverse impact on protected class members.

Harassment
  1. Harassment based on a protected class:
    1. Harassment is conduct that is based on a person’s race, color, religion, creed, ethnic or national origin, sex, sexual orientation, gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, or any other category protected by federal or state civil rights law, that
      1. Adversely affects a term or condition of an individual’s employment, education, participation in university activities or living environment.
      2. Has the purpose or effect of unreasonably interfering with an individual’s employment or academic performance or creating an intimidating, hostile, offensive or abusive environment for the individual; or
      3. Is used as a basis for or a factor in decisions that tangibly affect that individual’s employment, education, participation in the university’s activities or living environment.
    2. Examples of such conduct include, but are not limited to verbal or physical conduct relating to an employee’s national origin, race, surname, skin color or accent, offensive or derogatory jokes based on a protected category, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person’s religion or religious garments, offensive graffiti, cartoons or pictures, or offensive remarks about a person’s age.
    3. Not every act that might be offensive to an individual or group will be considered harassment.  Whether the alleged conduct constitutes harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of the conduct in the context within which the alleged incident occurs.  Harassment does not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.
  2. Examples of Sexual Harassment
    1. Examples of sexual harassment include, but are not limited to, the following:
      1. Refusing to hire, promote, or grant or deny certain privileges because of acceptance or rejection of sexual advances.
      2. Promising a work-related benefit or a grade in return for sexual favors.
      3. Suggestive or inappropriate communications, e-mail, notes, letters, or other written materials displaying objects or pictures which are sexual in nature that would create hostile or offensive work or living environments
      4. Sexual innuendoes, comments, and remarks about a person's clothing, body or activities
      5. Suggestive or insulting sounds
      6. Whistling in a suggestive manner
      7. Humor and jokes about sex that denigrate men or women
      8. Sexual propositions, invitations, or pressure for sexual activity.
      9. Use in the classroom of sexual jokes, stories, remarks or images in no way germane to the subject matter of the class
      10. Implied or overt sexual threats
      11. Suggestive or obscene gestures
      12. Attempted or actual kissing or fondling, patting, pinching and other inappropriate touching - (Please see APSU Policy 6:001 – Sexual Violence and Stalking)
      13. Coerced sexual intercourse (Please see APSU Policy 6:001 – Sexual Violence and Stalking)
      14. Sexual assault - (Please see APSU Policy 6:001 – Sexual Violence and Stalking)
      15. Suggestive or inappropriate acts, such as comments, innuendoes, based on one’s actual or perceived sexual orientation and/or gender identity.
    2. The examples listed above are not exclusive, but simply represent types of conduct that may constitute sexual harassment.
    3. Please note that incidents of sexual violence may constitute criminal acts and as such, investigation and processing by the criminal justice system, local police, campus security, and crisis intervention centers may occur in addition to the process developed under this policy.  Complainant must be notified of his/her right to file a criminal complaint.

Consensual
Relationships

Intimate relationships between supervisors and their subordinates and between faculty members and students are strongly discouraged due to the inherent inequality of power in such situations.  These relationships could lead to undue favoritism or the perception of undue favoritism, abuse of power, compromised judgment, or impaired objectivity.

Engaging in a consensual relationship with a student over whom the faculty member has either grading, supervisory, or other evaluative authority (i.e., member of dissertation committee, thesis director, etc.) constitutes a conflict of interest.  The faculty member must take steps to remove the conflict by assigning a different supervisor to the student; resigning from the student’s academic committees; or by terminating the relationship at least while the student is in his/her class.  Likewise, it is a conflict of interest for a supervisor to engage in a consensual relationship with a subordinate that he or she has evaluative or supervisory authority.  The supervisor must take action to resolve the conflict of interest by, for example, assigning another individual to supervise and/or evaluate the subordinate.


Procedures


Scope

These procedures shall be utilized by:

  1. Any employee or student who has been a victim of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex (other than sexual violence and stalking), sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law related to Austin Peay State University (APSU);
  2. Any former employee or student who has been a victim of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex (other than sexual violence and stalking), sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law related to Austin Peay State University (APSU) if the conduct took place during the time of employment or enrollment at APSU;
  3. Any employee or student who has knowledge of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex (other than sexual violence and stalking), sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law related to Austin Peay State University (APSU) against another employee or student in order to report such offenses; and,
  4. All third parties with whom APSU has an educational or business relationship who have been a victim of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex (other than sexual violence and stalking), sexual orientation/gender identity/expression, disability, age as applicable, status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law related to Austin Peay State University (APSU). 

All employees, including faculty members, and students are to be knowledgeable of policies concerning discrimination and harassment. All faculty members, students, and staff are subject to this Policy.  Any faculty member, student, or staff found to have violated this Policy by engaging in behavior constituting discrimination or harassment will be subject to disciplinary action that may include dismissal, expulsion or termination, or other appropriate sanction.

In addition, contractors, vendors, and other third parties are subject to this policy and are expected to comply with the requirements set forth herein.  Any contractor, vendor, or other third party who fails to comply with this policy is subject to all remedies available under any applicable contract. 

The procedures set forth in this policy do not only apply to conduct that occurs on campus and/or on property controlled by APSU.  If a complaint is filed under this policy, it may be investigated regardless of whether the conduct occurred off school grounds in order to determine whether the continuing effects of the off-campus conduct are having adverse effects on APSU’s educational environment.

Reporting, Cooperation and Training

 

Using the procedures outlined below, all faculty and staff must promptly report to the appropriate University contact any complaint or conduct that might constitute discrimination or harassment as defined by this policy, whether the information concerning a complaint is received formally or informally.  Failure to do so may result in disciplinary action up to and including termination.  

All faculty and staff members are required to cooperate with investigations of alleged discrimination or harassment.  Failure to cooperate may result in disciplinary action up to and including termination.  Students are also required to cooperate with these investigations and failure to do so may result in disciplinary action up to and including expulsion.

Because the courts have imposed strict obligations on employers with regard to discrimination and harassment, APSU is required to take measures to periodically educate and train employees and students regarding conduct that could violate this Policy.  All employees and students, are expected to participate in such education and training. Further, all faculty members, students and staff are responsible for taking reasonable and necessary action to prevent and discourage all types of discrimination and harassment. 

Procedures

A.  General

  1. The following procedures are intended to protect the rights of the aggrieved party (hereinafter, “the Complainant”) as well as the party against whom a complaint of discrimination or harassment is lodged (hereinafter “the Respondent”) as required by state and federal laws.  Each complaint must be properly and promptly investigated and, when warranted, appropriate disciplinary action taken against the Respondent. 
  2. APSU’S Office of the Legal Affairs shall always be consulted prior to investigation.  Hereinafter, references to “Legal Affairs” shall mean APSU’S Office of Legal Affairs.
  3. In situations that require immediate action, because of safety or other concerns, the University may take any disciplinary action that is appropriate, e.g., suspension with pay pending the outcome of the investigation.  Students may be placed on interim suspension under the appropriate circumstances pending the outcome of the investigation.  Legal Affairs shall be contacted before any immediate action is taken.
  4. Each employee, applicant for employment and student shall be notified of the name, office, and telephone number of the designated EEO/AA, Student Affairs, Title VI, or Title IX officer(s) responsible for assuring compliance with this policy, and federal law. 

B.  Filing Complaints 

  1. Any current or former student, applicant for employment, current or former employee, contractor or third party who believes he or she has been subjected to discrimination or harassment covered by this policy or who believes that he/she has observed discrimination or harassment taking place shall present the complaint to one of the offices designated below, which shall conduct the investigation:
    1. Complaints against students (except complaints filed under Title VI – discrimination on the basis of race, color, and national origin):

      Office of Student Affairs/Dean of Students
      Morgan University Center, Room 206
      (931) 221-7341
      http://www.apsu.edu/student-affairs/student-affairs-departments
    2. Complaints against faculty, staff, contractors, or third parties:
      Office of Equal Opportunity and Affirmative Action
      Browning Building, Room 7A
      (931) 221-7160
      http://www.apsu.edu/affirmative-action
    3. Complaints filed under Title VI (against faculty, staff, students, contractors or third parties):
      Title VI Coordinator (or his/her designee)
      Office of Equal Opportunity and Affirmative Action
      Browning Building
      http://www.apsu.edu/affirmative-action/title-vi-civil-rights-act-1964(931) 221-7178
  2. Complaints under Title VI of the Civil Rights Act of 1964, as amended, (i.e., prohibits discrimination and harassment on the basis of race, color or national origin) must be brought within 180 days of the last incident of discrimination or harassment.  All other Complaints must be brought within 365 days of the last incident of discrimination or harassment.  Complaints brought after that time period will not be pursued absent extraordinary circumstances.

    The determination of whether the complaint was timely or whether extraordinary circumstances exist to extend the complaint period must be made in conjunction with Legal Affairs.
  3. The Investigator will make every attempt to get the Complainant to provide the complaint in writing.  The complaint shall include the circumstances giving rise to the complaint, the dates of the alleged occurrences, and names of witnesses, if any.  Appendix A is a sample complaint form.  The Complainant shall sign the complaint.  However, when the Complainant refuses to provide or sign a written complaint, the matter will still be investigated and appropriate action taken.  Complaints made anonymously or by a third, party must also be investigated to the extent possible.
  4. If the complaint does not rise to the level of discrimination or harassment, the complaint may be dismissed without further investigation after consultation with Legal Affairs.  The Complainant should be informed of other available processes such as the employee grievance/complaint process, or a student non-academic complaint process.

 C. Investigation 

  1. Legal Affairs shall be notified of the complaint; whether written or verbal, as soon as possible after it is brought to the attention of the Investigator and the investigation will be under the direction of Legal Affairs.  All investigatory notes and documents shall be attorney work product.  The Investigator shall notify the President that an investigation is being initiated.
  2. When the allegation of discrimination or harassment is against the EEO/AA/ Title VI or Title IX, or Student Affairs Officer, the President will identify an individual who has been trained in investigating such complaints to investigate the complaint and carry out the responsibilities assigned pursuant to this policy.  When the allegation of discrimination or harassment is against the President, the EEO/AA officer shall notify the Board of Trustees who will assign an investigator who will make his/her report to the Board.
  3. When the Respondent is a student, the Student Affairs Office will normally investigate the complaint in compliance with the procedures outlined in this policy.  If a finding of violation is made, any resulting disciplinary action will be undertaken in compliance with APSU’S disciplinary procedures.
  4. When a student is involved as the Complainant, the Respondent or an individual interviewed, all documentation referring to that student shall be subject to the provisions and protections of the Family Educational Records and Privacy Act (FERPA) and Tennessee Code Annotated Section 10-7-504(a) (4) which requires that certain student disciplinary records are subject to disclosure pursuant to a public records request.
  5. In consultation with and under the direction of Legal Affairs, the Investigator shall conduct an investigation of the complaint.  The investigation shall include interviews with both the Complainant and the Respondent, unless either declines an in-person interview.  The investigation shall also include interviews with relevant witnesses named by the Complainant and Respondent.  The purpose of the investigation is to establish whether there has been a violation of the policy.  It is the responsibility of the Investigator to weigh the credibility of all individuals interviewed and to determine the weight to be given information received during the course of the investigation. 
  6. To the extent possible, the investigation will be conducted in such a manner to protect the confidentiality of both parties.  However, the Complainant, the Respondent and all individuals shall be informed that APSU has an obligation to address discrimination and/or harassment and that, in order to conduct an effective investigation, complete confidentiality cannot be guaranteed.  Information may need to be revealed to the Respondent and to potential witnesses.  However, information about the complaint should be shared only with those who have a need to know about it.  The Complainant and Respondent shall also be informed that a request to inspect documents made pursuant to the Public Records Act may result in certain documents being released.

    A Complainant may be informed that if he or she wants to speak privately and in confidence about discrimination or harassment, he or she may wish to consult with a social worker, counselor, therapist, or member of the clergy who is permitted, by law, to ensure greater confidentiality. 
  7. Additionally, the Complainant may be given assurances that measures will be taken against the Respondent should there be retaliation against him or her.  Retaliation is prohibited and should be reported to the Investigator immediately. Allegations of retaliation must also be investigated pursuant to the procedure set out in this Policy
  8. The Investigator shall notify in writing the Respondent within five (5) working days of receipt of the complaint.  The Respondent shall respond in writing to the complaint within five (5) working days following the date of receipt of the investigator’s notification.
  9. If either the Complainant or the Respondent is a student, the Investigator should communicate the prohibition against disclosure of personally identifiable information with regard to the student, based on FERPA.
  10. The Complainant, the Respondent and all individuals interviewed shall be notified that any retaliation engaged in connection with the complaint or its investigation is strictly prohibited regardless of the outcome of the investigation and may, in itself, be grounds for disciplinary action.
  11. At any time during the course of the investigation, the Investigator may meet with both the Complainant and the Respondent individually for the purpose of resolving the complaint informally. Either party has the right to end informal processes at any time.  If informal resolution is successful in resolving the complaint, a report of such, having first been reviewed and approved by Legal Counsel, shall be submitted to the President.
  12. If informal resolution is unsuccessful, the Investigator shall draft a report summarizing the investigation that shall be sent to Legal Counsel for review.  Each report shall outline the basis of the complaint, including the dates of the alleged occurrences, the response of the Respondent, the findings of the Investigator, whether there were any attempts made to resolve the complaint informally, a determination of whether there was a violation of the Policy, and recommendations regarding disposition of the complaint.

    After review and approval by Legal Affairs, the report shall be submitted to the President within sixty (60) calendar days following receipt of the complaint absent cause for extending the investigation timeline.  No working papers, statements, etc. generated in the investigation should be attached to the report to the President. In situations where more time is needed to complete the investigation, for reasons such as difficulty in locating a necessary witness, or complexity of the complaint, additional time may be taken, but only following notice to Legal Counsel and written notice to both the Complainant and the Respondent.
  13. If, after investigation, there is insufficient evidence to corroborate the complaint or, in any situation in which the Complainant refuses to cooperate in the investigation, it may be appropriate to discuss the complaint with the Respondent, informing him or her that he or she is not being accused of a discrimination/harassment violation, but that the conduct alleged, had it been substantiated, could be found to violate this Policy.  Any investigation and subsequent discussion should be documented and a report submitted as set forth in this procedure.  It should also be noted that conduct that does not rise to the level of actionable discrimination or harassment may, nevertheless, provide a basis for disciplinary action against the Respondent.
  14. The President shall review the Investigator’s report; make a final written determination, within a reasonable time as to whether a violation has occurred and, what the appropriate resolution should be.  After the President has made this determination, the Investigator shall, absent unusual circumstances and after consultation with Legal Counsel, provide both the Complainant and the Respondent with a copy of the determination, along with a copy of the Investigator’s report.
  15. If the investigation reveals evidence that a violation of the policy has occurred, the President must take immediate and appropriate corrective action.  Such action may include meeting with the Respondent and/or the Complainant and attempting to resolve the problem by agreement. Appropriate steps must be taken to ensure that the discrimination or harassment will not reoccur.
  16. After completion of the investigation and any subsequent disciplinary proceedings, all documentation shall be forwarded to Legal Affairs.  However, copies of the President’s determination, the Investigator’s report, the complaint (if it concerns an employee) and documentation of any disciplinary action taken against the Respondent should be placed in a file maintained on campus.  This file shall be maintained in a location designated by the President.  If such action was taken, copies of documentation establishing disciplinary action taken against the Respondent, whether employee or student, shall also be maintained in the Respondent’s personnel or student record, as appropriate.

    Some documents involved in a discrimination or harassment matter may be subject to the Public Records Act and thus open to public inspection. Other documents may be protected under FERPA, the attorney/client privilege, or attorney work product and would not be releasable. If a Public Records request is received, Legal Counsel must be consulted prior to the release of any documents.
  17. A complaint found to have been intentionally dishonest or maliciously made will subject the Complainant to appropriate disciplinary action.

D. Appeal of Decision 

  1. Because APSU is committed to a high quality resolution of every case, APSU affords the Complainant and Respondent an opportunity to appeal the President’s decision concerning the Respondent’s responsibility for the alleged conduct. The appeal process shall consist of an opportunity for the parties to provide information to APSU’s attention that would change the decision. The appeal process will not be a de novo review of the decision, and the parties will not be allowed to present their appeals in person to the President unless the President determines, in his/her sole discretion, to allow an in-person appeal.
  2. APSU shall provide written notice of the appeal process to the parties at the time that the parties are advised of the outcome of the investigation.
  3. Either party may send a written appeal to the President within ten (10) working days, absent good cause, of receipt of the President’s determination. The appealing party (ies) must explain why he or she believes the factual information was incomplete, the analysis of the facts was incorrect, and/or the appropriate legal standard was not applied, and how this would change the determination in the case. Failure to do so may result in a denial of the appeal.
  4. The President will issue a written response to the appeal as promptly as possible. This decision will constitute APSU’s final decision with respect to the President’s determination.

    If the President’s decision includes disciplinary action, the procedures for implementing the decision shall be determined by the applicable policies relating to discipline (e.g., employee grievance/complaint procedure, student disciplinary policies, and/or academic affairs policies). 

Other Applicable 
Procedures

An aggrieved individual may also have the ability to file complaints with external agencies such as the Equal Employment Opportunity Commission (EEOC), the Tennessee Human Rights Commission (THRC), the Office of Civil Rights (OCR), and the courts.  

Please note that the deadline for filing with external agencies or courts may be shorter than the deadline established for filing a complaint under this Policy. 


Related Forms


Discrimination/
Harassment Complaint
Form

https://www.apsu.edu/eoaa/titleix/forms.php

Links


APSU Policy 6:001 http://www.apsu.edu/policy/sexual-violence-and-stalking-6001

Revision Dates


APSU Policy 6:004 (previously 5:003) – Rev.: March 25, 2017
APSU Policy 6:004 – Rev.: September 11, 2012   
APSU Policy 6:004 – Issued: November 13, 2009


Subject Areas:

Academic Finance General Human
Resources 
Information
Technology 
Student
Affairs 
    X X   X

 


Approved


President: signature on file