University Policy 53
Sexual Harassment and Other Unlawful Harassment

Formerly Executive Memorandum 95-110
Initially Approved: May 10, 1995
Revised: February 11, 2002
Revised: August 10, 2009
Revised:  March 11, 2011
Policy Topic: Governance and Administration
Administering Office: Chancellor's Office

 I.          SCOPE OF THIS POLICY

This Policy applies to all applicants for employment or admission to University programs, officers and employees of the University, students, and persons who serve the University as its agent during the period of agency (e.g., volunteers). 

With regard to SPA employees, this policy is intended to supplant former University Policy #70 and applies to former employees as well as full-time or part-time employees with permanent, probationary, trainee, time-limited/permanent or temporary appointments.

II.        POLICY STATEMENT ON UNLAWFUL  HARASSMENT

The University is committed to equal opportunity in educational programs and employment for all persons regardless of race, color, creed, religion, gender, age, national origin, disability, military veteran status, political affiliation or sexual orientation[1].  

The University supports programs, curricula and extra-curricular activities that encourage inclusion and appreciation for all members of its community, and will not tolerate any unlawful harassment, as defined below, based on the above classes or characteristics to the extent that an employee’s work performance is affected as described in Section IV below, or a student is effectively denied equal access to the University’s resources and opportunities.

III.       POLICY STATEMENT ON SEXUAL HARASSMENT

Sexual harassment constitutes unlawful discrimination based on gender and threatens the University’s culture of civility and mutual respect.  It is the policy of the University that its employees and students should be free from sexual harassment by any University employee, student, visitor to the campus, or any agent or contractor having a business, professional, or educational relationship with the University, and sexual harassment as defined in this Policy will not be tolerated.  

The University reaffirms its commitment to academic freedom in this Policy, but recognizes that academic freedom does not allow sexual harassment.  The discussion of sexual ideas, taboos, behavior or language which is an intrinsic part of course content shall in no event constitute sexual harassment.  It is recognized that an essential function of education is a probing of opinions and an exploration of ideas that may cause some students discomfort.  It is further recognized that academic freedom ensures the faculty’s right to teach and the student’s right to learn.

IV.       DEFINITIONS

“Sexual harassment” is a type of discrimination and in the employment context includes, but is not limited to, the definition adopted by the Equal Employment Opportunity Commission (EEOC) Guidelines: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which may arise in one of the three following circumstances:

            a. submission to the sexual request or conduct is made either explicitly or implicitly a term or condition of employment  (Quid Pro Quo);
            b. submission to or rejection of the sexual request or conduct is used as the basis for an employment  decision affecting the individual (Quid Pro Quo);
            c. the sexual request or conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or education or creating an intimidating, hostile, or offensive environment (Hostile Environment).

With regard to students, sexual harassment is defined by the Office of Civil Rights (OCR) as unwelcome sexually harassing conduct that is so severe, persistent, or pervasive that it affects a student's ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment (Hostile Environment).  Additionally, Quid Pro Quo harassment occurs when a University employee causes a student to believe that he or she must submit to unwelcome sexual conduct in order to participate in a University program or activity.

Sexual harassment of students is a form of sex discrimination prohibited by Title IX.

Actions deemed to violate this Policy include, without limitation, the following examples:

  1. For employees or students to propose to other employees or students that they engage in or tolerate activities of a sexual nature in order to avoid some punishment or receive some reward; or
  2. To create a hostile environment as defined below; or
  3. To continue verbal or physical conduct of a sexual nature when an employee or student has indicated, by word or action, that such conduct is unwanted.

“Unlawful harassment” is a type of discrimination involving unwelcome or unsolicited speech or conduct based upon race, color, creed, religion, gender, age, national origin, disability, military veteran status, political affiliation or sexual orientation, which creates a hostile environment for employees or students. 

“Hostile environment”is one that a reasonable person (objective standard) would find hostile or abusive and one that a complainant under this Policy perceives to be hostile or abusive (subjective standard).  Hostile  environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, the extent to which the conduct was intended to harm, harass or exploit the complainant, and whether the conduct actually and substantially interferes with an employee’s work performance or a student’s ability to participate in or to receive benefits, services, or opportunities in the University’s education programs and activities.

“Quid Pro Quo” sexual harassment consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or student’s academic success, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions or academic decisions affecting such individual.

“Retaliation” is adverse treatment which occurs because of opposition to unlawful harassment or sexual harassment.

V.        COMPLAINT PROCEDURES - INFORMAL RESOLUTION

A complainant may elect to discuss the problem directly with the person whose behavior is questioned before seeking formal assistance, which is recommended in most circumstances.  Confronting the offending party in a conversation or in writing to request that s/he stop engaging in the offensive behavior may resolve the situation.  Candid discussion between the parties involved about how a behavior made someone feel can be an empowering experience that overcomes the negative feelings associated with an incident.  However, some situations may be so serious that informal action may not be appropriate and direct progression to the formal initiation of a complaint may be necessary.  If a complaint is directed against a supervisor or administrator who would otherwise play a role in responding to and attempting to resolve the complaint, the complainant should not discuss his/her complaint with that supervisor but may discuss the complaint with the next supervisor in a direct line of authority.

VI.       COMPLAINT PROCEDURES – FORMAL RESOLUTION

            A.        Initiation of Complaint

In order to take appropriate remedial action, the University must be aware of sexual harassment, unlawful harassment or related retaliation. Therefore, anyone who believes that s/he has experienced or witnessed sexual harassment, unlawful harassment or related retaliation should promptly submit a complaint to the responsible persons listed below.  Complaints should include the name and contact information of the complainant, the specific conduct that is the subject of the complaint, the name and contact information, if known, of the accused individual, and the name(s) and contact information of witnesses or other individuals having direct knowledge of the complaint.

                        1.         Complaints from Students

                        (a)  Student Complaints about Other Students.  Complaints of this nature should be reported to the Department of Student Community Ethics (114 Scott East; telephone no. 227-7234) or the Office of the Vice Chancellor for Student Affairs (114 Scott East; telephone no. 227-7234) for investigation and resolution. Complaints should be made within 30 calendar days of the alleged harassing action to ensure a prompt, impartial, and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.

                        (b)  Student Complaints about Employees (or agents and contractors of the University).  Complaints of this nature should be reported to the Director of Equal Opportunity and Diversity Programs (520 HFR Administration Building; telephone no. 227-7116) for investigation and resolution. Complaints should be made within 30 calendar days of the alleged harassing action to ensure a prompt, impartial, and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.  Investigations may be conducted in consultation with the Office of the Vice Chancellor for Student Affairs.

                                    (c) The University shall take appropriate action within no more than 60 calendar days from receipt of written complaint. The University has the right to take appropriate action in fewer than 60 calendar days.

                                    (d) The University shall provide a written response to the complaining student when the University has determined what action, if any, will result from the complainant’s written complaint.  In its response, the University shall not disclose confidential information about employees or other students, in accordance with the requirements of applicable state and federal law.

                        2.         Complaints from EPA Employees and Faculty Members

                        (a)  Employee/Agent Complaints about Students.  Complaints of this nature should be reported to the Department of Student Community Ethics or the Office of the Vice Chancellor for Student Affairs for investigation and resolution.   Complaints should be made within 30 calendar days of the alleged harassing action to ensure a prompt, impartial, and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.  Investigations may be conducted in consultation with the Director of Equal Opportunity and Diversity Programs.  

                        (b)  Employee/Agent Complaints about Other Employees (or agents and contractors of the University).   Complaints of this nature should be reported to the Director of Equal Opportunity and Diversity Programs for investigation and resolution.  Complaints should be made within 30 calendar days of the alleged harassing action to ensure a prompt, impartial, and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.

                                    (c) The University shall take appropriate action within no more than 60 calendar days from receipt of written complaint. The University has the right to take appropriate action in fewer than 60 calendar days.

                                    (d) The University shall provide a written response to the complaining employee when the University has determined what action, if any, will result from the complainant’s written complaint.  In its response, the University shall not disclose confidential information about other employees or students, in accordance with the requirements of applicable state and federal law.

                        3.         Complaints from SPA Employees

                        (a)  Complaints from an SPA employee concerning students should be reported to the Department of Student Community Ethics or the Office of the Vice Chancellor for Student Affairs for investigation and resolution. Complaints should be made within 30 calendar days of the alleged harassing action to ensure a prompt, impartial, and complete investigation; however, the University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.  Investigations may be conducted in consultation with the Director of Equal Opportunity and Diversity Programs.  

                        (b) An SPA complainant must submit a written complaint about employees/agents to the Director of Equal Opportunity and Diversity Programs within 30 calendar days of the alleged harassing action.   The University reserves the right to initiate investigations and take action at any time depending on the nature of the alleged harassing action.  Former SPA employees must submit a written complaint within 30 calendar days from the alleged harassing action or the employee’s last day of employment, whichever is earlier.

                        (c)  A complainant under this Policy has a right to file a simultaneous complaint under Title VII with the Equal Employment Opportunity Commission.

                        (d)  An SPA employee with a complaint concerning a denial of employment, promotion, training, transfer, demotion, layoff or termination due to discrimination based on age, sex, race, color, national origin, religion, creed, political affiliation or handicapping condition, or a complaint based on retaliation for opposition to alleged discrimination may complain directly to the Office of Administrative Hearings and the State Personnel Commission.  Such complaint should be made within 30 calendar days of the alleged harassing action, or the complainant may lose important rights if the complaint is not timely filed.

                                    (e) The University shall take appropriate action within no more than 60 calendar days from receipt of written complaint. The University has the right to take appropriate action in fewer than 60 calendar days if it waives the 60-day period, and the complaining employee has acknowledged such waiver. The waiver and acknowledgement shall be in writing in such form as may be prescribed by Human Resources from time to time.

                                    (f) The University shall provide a written response to the complaining employee when the University has determined what action, if any, will result from the complainant’s written complaint.  In its response, the University shall not disclose confidential information about other employees, in accordance with the requirements of the State Personnel Act.

                                    (g) After the University’s 60 calendar days (or less, if waived) response period has expired, the complainant may appeal to the Office of Administrative Hearings and the State Personnel Commission within 30 calendar days if not satisfied with the University’s response to complaint. 

                        (h)  The procedural rights and obligations set forth in this Section pertain to SPA complaints concerning University employees/agents, and have no application to complaints involving students. 

            B.        Manager's Obligation to Report

Any administrative or academic manager who experiences or witnesses an incident of sexual harassment, unlawful harassment or related retaliation, or receives a written or verbal complaint of sexual harassment, unlawful harassment or related retaliation shall promptly report it to the Director of Equal Opportunity and Diversity Programs.

            C.        Investigation Process for Complaints about Employees

Complaints involving employees under this Policy shall be addressed and resolved within required time limits, or, if none, as promptly as practicable after the complaint is made.  It is the responsibility of the Director of Equal Opportunity and Diversity Programsto determine the most appropriate means for addressing the complaint. Options include: (1) determining that the facts of the complaint or report, even if true, would not constitute a  violation of this Policy; (2) investigating the report or complaint if the facts of the complaint or report warrant; or (3) provided that the parties involved consent, referring the complaint to a trained University mediator for informal resolution.

The Director of Equal Opportunity and Diversity Programs may designate another individual (either from within the University, including an administrator, or from outside the University) to conduct or assist with the investigation or to manage an alternative dispute resolution process.  

Some of the factors that will be considered in determining whether conduct is harassing  and violates this Policy, include, but are not limited to, the following: (1) the severity, persistence, and pervasiveness of the harm or harassment inflicted upon or directed toward the victim by the offending party; (2) the extent to which the speech or conduct disrupts the orderly operation of the University; (3) the extent to which conduct effectively denies equal access to the University’s resources and opportunities; (4) the extent to which the discriminatory personal conduct was intended to harm, harass, or exploit the victim; and (5) the extent to which the conduct actually and substantially interferes with an employee’s work performance.  In all cases, any inquiry into alleged  harassment should consider the record as a whole and the totality of the circumstances, taking into account the nature of the speech or conduct and the context in which the alleged incidents occurred.

Upon the conclusion of the investigation, the Director of Equal Opportunity and Diversity Programs shall report the results of the investigation in writing to the accused employee’s Vice Chancellor for disciplinary action if warranted.  The report should include a brief summary of factual findings as well as recommended remedial action.  Generally, the results of the investigation will be confidential as described in Section X below.   

            D.        Investigation Process for Complaints about Students

Complaints involving students shall be addressed in accordance with the Student Code of Conduct and any applicable Division of Student Affairs policies and procedures.

VII.     REMEDIAL ACTION/DISCIPLINE

Remedial actions will depend on the severity of the conduct that is the subject of the complaint, however, violations of this Policy may, in appropriate circumstances, result in discipline, up to and including discharge from employment, expulsion of a student, or, for non-employees or non-students, removal from campus property.

VIII.    RETALIATION PROHIBITED

This Policy seeks to encourage students and employees to report concerns involving harassing and other discriminatory personal conduct.  Any act of reprisal or retaliation, including interference, restraint, coercion, penalty, discrimination, harassment - overtly or covertly - against a student or employee for responsibly reporting under this Policy interferes with free expression and violates this Policy.  Accordingly, individuals who violate this retaliation prohibition may be subject to prompt disciplinary action.

IX.       FRIVILOUS OR FALSE COMPLAINTS

This Policy shall not be used to bring frivolous or false complaints against students or employees.  If a complaint has been made maliciously or in bad faith, disciplinary action may be taken against the person bringing the complaint.

X.        CONFIDENTIALITY

Information gathered in the course of investigations or mediation conducted under this Policy will be given the full extent of confidentiality accorded by law to employee personnel records and student education records.  Any person who, without authorization, reveals such information may be subject to disciplinary action.  Disclosure of the content of complaints will be made on a “need to know” basis, depending on the type of investigation and remedial action required by the complaint.  In any event, the accused individual will be informed of the specific allegations in the complaint.

XI.       TRAINING

The Director of Equal Opportunity and Diversity Programs is responsible for developing or obtaining educational materials addressing sexual harassment, unlawful harassment, and other forms of discriminatory personal conduct, as well as conducting training on the subjects. Any  sexual harassment training program will have two components: a basic education and training program for all new employees (EPA and SPA) to be conducted as part of new employee orientation; and, an advanced education and training component  for managers who might assist with  investigations. Any employing unit, including academic departments, may request advanced education and training through the Director of Equal Opportunity and Diversity Programs as needed. Materials also must be made available for use by employees or students who want to develop a better understanding of sexual harassment.

XII.     REPORTS TO CHANCELLOR

The Director of Equal Opportunity and Diversity Programs is responsible for routinely and periodically reporting to the Chancellor the number and nature of complaints made under this Policy and the incidents of Policy violations. 

XIII.    RELATED POLICIES AND RESOURCES


[1] Western Carolina University recognizes that the category of sexual orientation is not a protected category under federal or state laws. By extending protection to this category as an internal policy matter it is not the intention of the University to create any rights that either may be pursued or enforced off-campus, that extend to the employee benefits package made available by the State of North Carolina or other off-campus entities, or that interfere with the University’s relationships with outside organizations, including the federal government, the military or private employers.

 

 

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