East Tennessee State University
SECTION: PPP-30
SUBJECT: Harassment - Sexual
or Racial Policy
Policy Statement
Policy Statement
It is against University policy to discriminate
against any member of the University community on the basis of sex
or race. Harassment based on sex or race is a form of
discrimination.
These procedures may be utilized by any employee, applicant for
employment, or student who believes he or she has been subjected to
sexual or racial harassment. Former employees or students may
file complaints concerning conduct which took place during
the time of employment or enrollment, provided the complaint is
timely filed, and the conduct has a reasonable connection to the
University.
Educational Programs
The University will take measures to periodically
educate and train employees regarding conduct that could constitute
a violation of this procedure. All employees are expected to
participate in such education and training and to be
knowledgeable of policies and procedures concerning
harassment.
Disciplinary Action
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 sexual or
racial harassment will be subject to disciplinary action which may
include dismissal, expulsion or termination, or other appropriate
sanction.
All faculty and staff members are required to cooperate with
investigations of alleged sexual or racial harassment. Failure to
cooperate may result in disciplinary action being taken up to and
including termination. Students are also required to cooperate with
these investigations; failure to do so may result in disciplinary
action up to and including expulsion.
Responsibility of Supervisors
All faculty members, students and staff, particularly management
and supervisory personnel, are responsible for taking reasonable
and necessary action to prevent and discourage sexual or racial
harassment, and are required to promptly report conduct that could
be in violation of TBR and institutional policies and guidelines.
Such reporting should occur when information concerning a complaint
is received formally or informally.
University Commitment
Harassment is reprehensible and will not be tolerated by the
University. It subverts the mission of the University and threatens
the careers, educational experience and well being of students,
faculty and staff. Incidents involving sexual harassment or
racial harassment have no place within the University. In both
obvious and subtle ways, even a suggestion of sexual or racial
harassment is destructive to individual students, faculty, staff,
and the academic community as a whole. When through fear or
reprisal, a student, staff member, or faculty member submits or is
pressured to submit to unwanted sexual attention, the University's
ability to carry out its mission is undermined.
While sexual harassment most often takes place in situations of a
power differential between the persons involved, the University
also recognizes that sexual harassment may occur between persons of
the same University status. The University will not tolerate such
harassment between or among members of the University that creates
an unacceptable work or educational environment.
PROCEDURES
Purpose
East Tennessee State University assures that fair and prompt
consideration shall be given to all complaints of sexual or racial
harassment in accordance with the procedures set forth below.
Legal Requirement
Sexual harassment and racial harassment have
been held to constitute forms of discrimination prohibited by Title
VI, Title VII of the Civil Rights Act of 1964, as amended,
and Title IX of the Educational Amendments of 1972. The University
maybe held liable pursuant to Title VI or Title VII and/or lose
federal funds pursuant to Title IX for failure to properly
investigate and remedy claims of sexual or racial harassment.
Prohibited Conduct:
Sexual Harassment
Defined Sexual harassment in the
working/educational environment:
Generally, sexual harassment may be defined as
unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature when one of the
following criteria is met:
-
submission to such conduct is made either explicitly or implicitly as a term or condition of the individual's employment or of the individual's status in a program, course or activity;
-
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 affecting such individual;
-
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.
Examples of Sexual Harassment
Sexual harassment can take many forms, but most sexual harassment
falls into three categories: verbal, visual, or physical. Some
examples of behavior that may constitute sexual harassment are:
-
Refusing to hire, promote, grant or deny certain privileges because of acceptance or rejection of sexual advances.
-
Promising a work-related benefit or a grade in return for sexual favors.
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Suggestive or inappropriate communications, e-mail, voicemail, 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.
-
Sexual innuendos, comments, and remarks about a person's clothing, body or activities.
-
Suggestive or insulting sounds.
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Whistling in a suggestive manner.
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Humor and jokes about sex that denigrate men or women.
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Sexual propositions, invitations, or pressure for sexual activity.
-
Use in the classroom of sexual jokes, stories, remarks, or images when such use is in no way germane to the subject matter of the class.
-
Implied or overt sexual threats.
-
Suggestive or obscene gestures.
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Patting, pinching, and other inappropriate touching.
-
Unnecessary touching or brushing against the body.
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Attempted or actual kissing or fondling.
-
Coerced sexual intercourse.
-
Sexual assault.
The examples listed above are not exclusive, but simply represent types of conduct that may constitute sexual harassment.
Not every act that might be offensive to an individual or a group will be considered harassment. Whether the alleged conduct constitutes sexual harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of sexual advances in the context within which the alleged incident occurs. Harassment may not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.
Please note that sexual assaults may be criminal acts, and as such, investigation and processing by the criminal justice system, local police, campus police and/or crisis intervention centers may supersede or occur in addition to the process developed under this policy.
Consensual Relationships
Intimate relationships between supervisors and their subordinates, 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.
Consensual Relationships - Conflicts of
Interest
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, such as 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 over whom he or she has evaluative or
supervisory authority. The supervisor must take action to remove
the conflict of interest by, for example, assigning another
individual to supervise and/or evaluate the subordinate or
terminating the relationship.
Any retaliation against a person filing a complaint is strictly
prohibited regardless of the outcome of the investigation and may,
in itself, be grounds for disciplinary action.
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Prohibited Conduct: Racial Harassment Defined |
Generally, racial harassment is defined as any person's conduct which unreasonably interferes with an employee's or student's status or performance by creating an intimidating, hostile, or offensive working or educational environment. Harassment on the basis of race, color, ethnic or national origin includes offensive or demeaning treatment of an individual, where such treatment is based on prejudiced stereotypes of a group to which that individual may belong. It includes, but is not limited to, objectionable epithets, threatened or actual physical harm or abuse, or other intimidating or insulting conduct directed against the individual because of his/her race, color, ethnic or national origin. Title VII requires employers to take prompt action when a person expresses a racially charged opinion in a way which abuses or offends a coworker. |
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Prohibited Conduct: Retaliation |
Retaliation is prohibited by the University. Retaliation may be defined as the seeking of revenge, reprisal or injury to another who has exercised the right to file a complaint or make a report of sexual or racial harassment, or has participated in an investigation into allegations of sexual or racial harassment. |
Prohibited
Conduct
Other Forms:
Title VII also prohibits discrimination (and harassment) of
individuals based on color, ethnicity, national origin, and
religion. University policy prohibits discrimination based on
sexual orientation/gender identity. Complaints of discrimination on
these grounds may be filed with the University EEO/AA Officer
and/or pursuant to the University's grievance and complaint
procedures. However, the procedure utilized for these complaints
differs from the process used for sexual and racial harassment
complaints.
Complaint Reporting
General and Contact Offices
The University seeks to encourage the prompt reporting of sexual
or racial harassment and its prompt resolution through University
procedures. Where the charge of harassment is by one student
against another student, the Dean of Students, DP Culp Student
Center, will investigate and resolve the complaint in accordance
with appropriate student procedures. Other charges, not relating to
complaints against students, should be directed to the University
Equal Employment/Affirmative Action Compliance Officer
(hereinafter, EEO/AA Officer), 206 Dossett Hall Administration
Building. The EEO/AA Officer will investigate all charges
and make recommendations to the President regarding their
resolution, following the procedures set forth in this document.
Students, residents and employees of the College of Medicine may
contact the Assistant Dean, Women in Medicine, 003 VA Building 2.
The Assistant Dean, Women in Medicine will investigate in
consultation with the EEO/AA office.
Protection of Rights
The following procedures are intended to protect the rights of the
aggrieved party (hereinafter, 'the Complainant') as well as the
party against whom the harassment complaint 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.
The ETSU Office of University Counsel (hereinafter, Legal Counsel)
shall always be consulted prior to investigation. Legal Counsel
will be kept informed during the investigation.
In situations that require immediate action because of safety or
other concerns, the University may take any administrative action
which is appropriate, e.g., administrative leave 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 Counsel must be contacted before any
immediate action is taken.
Initiating a Complaint
Any current or former student, applicant for employment,
current or former employee who believes he or she has been
subjected to harassment at the University, or who believes that
he/she has observed harassment taking place, shall present the
complaint to the designated EEO/AA Officer, the Dean of Students,
or Assistant Dean, Women in Medicine (hereinafter 'the
Investigator'), responsible for compliance with Title VII of the
Civil Rights Act of 1964, Title VI, Title IX of the Education
Amendments of 1972.
Time Period for Filing a Complaint
Complaints must be brought within 365 days of the last incident of
harassment. Complaints brought after that 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 Counsel.
Every attempt will be made to obtain a written complaint from the
Complainant. The complaint shall include the circumstances giving
rise to the complaint, the dates of the alleged occurrences, and
names of witnesses, if any. The complaint shall be signed by the
Complainant. However, when the Complainant refuses to provide or
sign a written complaint, the matter will still be investigated to
the extent possible, and appropriate action taken. Complaints made
anonymously or by a third party must also be investigated to the
extent possible.
If the complaint does not rise to the level of harassment, the
complaint may be dismissed without further investigation after
consultation with Legal Counsel. The Complainant should be informed
of other available processes such as the employee
grievance/complaint process, or a student non-academic complaint
process.
Investigation Process
Initiation of Investigation
Legal Counsel 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 shall be conducted under
the direction of Legal Counsel. All investigatory notes and
documents shall be attorney work products. The Investigator shall
notify the President that an investigation is being initiated.
Sexual Harassment by EEO/AA Officer
When the allegation of harassment is against the EEO/AA 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.
Sexual Harassment by President
When the allegation of harassment is against the President of the
University, the EEO/AA shall immediately notify the TBR Office of
General Counsel who will assign an investigator who will report to
the Chancellor.
Sexual Harassment by Students
When the Respondent is a student, Dean of Students or Assistant
Dean, Women in Medicine for medical students, will investigate in
compliance with the procedures outlined in this policy. If a
finding of a violation is made, any resulting disciplinary action
will be undertaken in compliance with the University's student
disciplinary procedures.
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 require that certain
student disciplinary records are subjected to disclosure pursuant
to a public records request.
Conducting an Investigation
In consultation with and under the direction of Legal Counsel, the
Investigator shall conduct an investigation of the complaint. The
purpose of the investigation is to establish whether there has been
a violation of the policy. In conducting the investigation, the
Investigator shall interview the Complainant, the Respondent, and
other persons believed to have knowledge related to the
investigation. 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.
Confidentiality
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
interviewed should be informed that the University has an
obligation to address 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 should 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 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 assure greater
confidentiality. Additionally, the Complainant should be informed
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.
Notification of Complaint
The Investigator shall notify the Respondent in writing 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.
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.
Protection from Retaliation for
Complainant
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 harassment investigation, and may,
in itself, be grounds for disciplinary action.
Informal Resolution
At any time during the course of the investigation, the
Investigator shall meet with both the Complainant and the
Respondent individually for the purpose of resolving the complaint
informally. 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.
Investigation Report
If informal resolution is unsuccessful, the Investigator shall
draft a report summarizing the investigation which 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, all
attempts 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 Counsel, the report shall be
submitted to the President within twenty (20) working days
following receipt of the complaint. In rare situations where more
than 20 working days is needed to complete the investigation, 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 notice to the Complainant and the Respondent.
'No Cause' Finding
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 harassment
violation, but that the conduct alleged, had it been substantiated,
would have violated 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 which does
not rise to the level of actionable harassment may, nevertheless,
provide a basis for disciplinary action against the Respondent.
'Cause' Finding
The President shall review the Investigator's report, make a
final determination as to whether a violation has occurred, and
determine what the appropriate resolution should be. After the
President has made this determination, the Investigator shall
provide both the Complainant and the Respondent with a copy of the
determination, along with a copy of the Investigator's report.
If the investigation reveals evidence that a violation of the
policy has occurred, the President may meet with the Respondent
and/or the Complainant and attempt to resolve the problem by
agreement. Appropriate steps must be taken to ensure that the
harassment will not reoccur.
Recourse Procedures
If a violation of this policy is determined to have occurred, the
Respondent shall be advised of his/her right to a hearing, if such
right exists, pursuant to the procedures set forth below. The
Respondent must file the request for a hearing within ten (10)
working days following receipt of the President's determination.
Record-Keeping
After completion of the investigation and any subsequent
disciplinary proceedings, all documentation shall be forwarded to
Legal Counsel. 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 any employee or student, shall also be maintained the
Respondent's personnel or student record as appropriate.
Some documents involved in a 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.
Respondent:
Protection from Bad Faith Complaints
A complaint found to have been intentionally dishonest or
maliciously made will subject the Complainant to appropriate
disciplinary action.
Hearing
Request for a Hearing
If the Respondent requests and is entitled to a hearing, he or she
shall be advised of the established University procedures available
for resolution of the matter in question, which will generally be
the procedure for the hearing of a grievance before a grievance
committee.
Minimal Requirements:
Grievance Hearing Procedures
The grievance hearing procedures shall include the following
minimal requirements:
•
Notice to the Respondent of the hearing, which must include a
summary of the facts that form the basis of the violation; the
date, time and place of the hearing; and, the rights afforded the
Respondent during the hearing process.
•
The right of the Respondent to present his or her case.
•
The right of the Respondent to be accompanied by an advisor who may
assist the Respondent, but may not advocate on his or her behalf.
•
The right of the Respondent to call witnesses in his or her behalf.
•
The right of the Respondent to confront and cross-examine.
Hearing Option: University
vs. TUAPA
In the following situations, the Respondent must be given the
option of either a University hearing, or of having the hearing
held pursuant to the Tennessee Uniform Administrative Procedures
Act (TUAPA):
Election of Hearing
The election of which hearing process to utilize must be in
writing, signed by the Respondent, expressly waiving the TUAPA
option if such option is available.
If the Respondent elects to proceed pursuant to the TUAPA, Legal
Counsel should be notified immediately.
Faculty Recourse Procedures
When an allegation 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 as set out in this section. However, where the
investigation results in a finding that the harassment policy was
violated and the President concurs with that finding and determines
that procedures pursuant to TBR Policy 5:02:03:00, Academic
Freedom, Responsibility, and Tenure, should be undertaken in
consideration of the termination of a tenured faculty member, the
matter will then proceed directly to a hearing under either the
University policy for termination of tenure or TBR Policy
5:02:03:00.
FAQs
|
Whom do I contact with further questions? |
Complaint by student against faculty
member or staff; faculty member against staff;
faculty member against faculty
member or
supervisor; or staff against faculty member, staff,
supervisor or outside University vendor:
|
Affirmative Action Officer, 206 Dossett Hall Administration
Building
(423) 439-4211
Complaint by faculty member or staff against student:
Dean of Students, DP Culp Student Center
(423) 439-4210
Students, residents and employees of the College of Medicine may
also contact:
Assistant Dean, Women in Medicine, 003 VA Building 2
(423) 439-8849
Other Contacts for
Assistance
Employees Psychological/Emotional Assistance and Support
Services: Employee Assistance Program (800) 308-4934
Students Psychological/Emotional Assistance and Support
Services: Counseling Center (423) 439-4841
Links
TBR - Harassment
Sexual or Racial–
Personnel Guidelines
P-080
TBR
Non-discrimination
on Basis of Sex in
Programs &
Activities–
Academic Policy 2-02-10-01
TBR - Equal
Employment
Opportunity,
Affirmative
Action, Discrimination
and Nepotism -
Personnel Policies 5-01-02-00
TBR - Academic
Freedom,
Responsibility -
Personnel Policies 5-02-03-10
Revision Dates
Policy updated March 18, 2008