I.     Purpose

 II.    General Statement

III.    Responsibility

 IV.   Procedures
 

I.     Purpose

The purpose of these procedures is to establish standard guidelines for the orderly resolution of sexual harassment charges at East Tennessee State University. Fair and prompt consideration shall be given to all charges of sexual harassment in accordance with the procedures set forth below. These procedures may be used by any employee or student who believes he or she has been subject to sexual harassment.

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II.     General Statement

Sexual harassment has been held to constitute an illegal form of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964, as amended, Title IX of the Education Amendments of 1972, and by recent U.S. Supreme Court decisions. An institution or school may be held liable pursuant to Title VII and/or lose federal funds pursuant to Title IX for failure to properly investigate and remedy claims of sexual harassment. Generally, sexual harassment may be defined as unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when one of the following criteria is met:
 
1. Submission to such conduct is made either explicitly or implicitly a term or condition of the individual's employment or of the individual's status in a program, course or activity;

 
2. Submission to or rejection of such conduct by an individual is used as a basis for employment decisions, a criterion for evaluation, or a basis for academic or other decisions effecting such individual; or

 
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or educational experience or creating an intimidating, hostile, or offensive work or educational environment.

Flagrant and subtle forms of behavior such as unnecessary touching, threats or insinuations that refusal to agree to sexual advances will affect an individual's status, and repeated verbal abuse and use of degrading language or commentary about an individual's body are examples of conduct which may constitute grounds for charges of sexual harassment. Whether the alleged conduct constitutes sexual harassment depends upon the situation as a whole and the totality of the circumstances, such as the nature of sexual advances in the context within which the alleged incident occurred. Isolated offensive conduct will not necessarily create a sexually harassed condition. To be actionable, the act must be sufficiently severe or pervasive to alter the conditions of the victim's employment or status and create an abusive environment.

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III.     Responsibility

The Affirmative Action Officer for ETSU shall be responsible for assuring compliance with these procedures.

The following procedures are intended to protect the rights of the aggrieved party as well as the party against whom an allegation of sexual harassment is lodged, as required by state and federal laws. Each charge must be properly investigated and, when warranted, appropriate disciplinary action taken against the individual charged.
 

1. Informal Procedure

1. Any student, applicant for employment, or employee who believes he or she has been subjected to sexual harassment at ETSU may contact the Affirmative Action Officer or any one of the following officials as deemed appropriate:
1. Vice President for Student Affairs
2. Associate Vice President for Academic Affairs
3. Assistant Vice President for Student Affairs
4. Associate Dean of Student Affairs, College of Medicine
5. Dean of Libraries
6. Technical Clerk, Physical Plant
The official contacted will make every attempt to get the aggrieved party to provide the charge in writing. The charge shall include the circumstances giving rise to the allegations and the dates of the alleged occurrences. The charge shall be signed by the aggrieved individual. However, where the aggrieved individual refuses to sign a written charge, the official contacted will still investigate the allegations, and take appropriate action. Based on the findings of the investigation, the official contacted may take appropriate action which may or may not be the steps outlined in the remaining paragraphs of this guideline.¹

¹Includes revisions pursuant to TBR Guideline No. P-080, as revised February 14, 1989.

2. The Affirmative Action Officer shall notify in writing the charged party within five (5) working days of receipt of the charge. The charged party shall respond in writing to the charge within five (5) working days of notification.
3. The Affirmative Action Officer shall meet with both parties, individually and/or jointly, as appropriate, for the purpose of resolving the charge informally.
4. The Affirmative Action Officer shall conduct an investigation of the charge and submit a report to the President, the Tennessee Board of Regents EEO/AA officer, and the parties within twenty (20) working days following receipt of the charge.

1. Each report shall outline the basis of the charge, including the dates of the alleged occurrences, the response of the charged party, the findings of the Affirmative Action Officer and all attempts to resolve the charge informally and recommendations regarding disposition of the charge.
2. If following an investigation, the Affirmative Action Officer finds there is no substantial evidence to support the charge, the parties shall be so advised.
3. If the investigation reveals that there is evidence to support the charge, the charged party shall be advised of his/her right to a formal hearing pursuant to the procedures set forth in sections IV B and IV C below. A charged party may request a formal hearing within ten (10) working days following receipt of the report.
4. Any charged party, who may otherwise be entitled to a formal hearing, may waive such a hearing and accept the findings of the Affirmative Action Officer and the decision of the University President. In such case the waive shall be in writing and signed by the charged party. The waiver should state the matter involved and the decision acquiesced in, and should expressly state that the right of the charged party to a formal hearing is knowingly and voluntarily waived. Therefore, the decision of the University President shall be final, and the matter may not be appealed to the Chancellor of the Tennessee Board of Regents.

2. Formal Procedures

1. If the charged party requests a formal hearing, he or she shall be advised of hearing procedures available under Board of Regents Policy No. 1:06:00:05, Uniform Procedures for Cases Subject to Tennessee Uniform Administrative Procedures Act (TUAPA), and of the formal university hearing procedures available for resolution of the matter in question. The party requesting a hearing shall be given the opportunity to elect the procedures pursuant to which the matter shall be heard.
2. When an individual elects to proceed under the formal university hearing procedures (see below) for resolution of the matter, the election should be in writing and signed by the individual making the election and should expressly waive the procedures available under the TUAPA as to the matter in question.

3. Formal University Hearing Procedures

1. If the charged party elects to proceed under formal university hearing procedures, the University President will appoint a three (3) member hearing panel. At least one (1) member of the panel will be selected from the charged party's peer group and at least one (1) member will be from the aggrieved party's peer group. One (1) member of the panel will be appointed as Hearing Officer for the purpose of presiding at the hearing.
2. The Affirmative Action Officer will furnish the Hearing Officer a copy of the investigation report and advise the Hearing Officer concerning the definitions of sexual harassment and the criteria which must be met to substantiate a charge.
3. Within five (5) working days after appointment, the Hearing Officer will notify the charged party and the aggrieved party of the date, time and location of the hearing. The notification will include, as a minimum, the following items:

1. Notice of the charge to the party or parties.
2. The right of the party or parties to present his or her case.
3. The right to be accompanied by an advisor. (Note: The advisor, who may be an attorney, may only advise the party; the advisor cannot speak on behalf of the party.)
4. The right to call witnesses in his or her behalf.
5. The right to confront witnesses against him or her.

4. The hearing will be held within twenty (20) working days of notification and will be closed in order to protect the rights and reputation of the parties concerned. A tape recording, but not a transcription, will be made of the proceeding. The charged party may request that the recording be transcribed at his or her own expense.
5. The Hearing Officer will submit the findings of the panel to the University President, with a copy to the Affirmative Action Officer, within five (5) working days after the hearing.
6. In any case where the University President makes a decision which is adverse to the charge or claim of either party, the University President shall advise the person of any right to appeal.
7. Individuals electing to proceed under the TUAPA shall be referred to the appropriate institution official responsible for commencement of actions under the TUAPA (Board Policy No. 1:06:00:05).²
8. When a charge involves a tenured faculty member, the same informal and formal procedures set out above shall be utilized. Tenured faculty members shall have the same right to elect hearing procedures pursuant to the within guidelines. Where the selected hearing procedure results in a finding that sexual harassment exists and the President determines that the harassment constitutes adequate cause for termination, then the matter will proceed under either the institution policy for termination of tenure or TBR policy 5:02:03:00 (Academic Freedom, Responsibility, and Tenure).³

4. Confidentiality

All documentation and recordings related to any investigation and/or hearing pursuant to these procedures will be considered confidential and will be secured by the Affirmative Action Officer in a file separate from personnel files. Panel members and other parties will refrain from open discussions concerning the particulars of any investigation and/or hearing. 

²Added pursuant to TBR Guideline No. P-080, as revised February 14, 1989.
³Added pursuant to TBR Guideline No. P-080, as revised February 14, 1989.

Source:  Tennessee Board of Regents (TBR) Personnel Policy No. 5:01:02:00; TBR Personnel Guideline No. P-080.