Date: November 3, 1997                                    Number:  87–1 REV

Title: Discrimination & Harrassment Policy

(Replaces Administrative Memoranda 87–1, 87–2, 87–4, 87–5 & 92–2)

Introduction

East Stroudsburg University is committed to providing an environment free from harassment and other forms of discrimination based upon race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference, or gender, including sexual/gender and racial harassment. Such an environment is a necessary part of a healthy learning and working atmosphere because such discrimination undermines the sense of human dignity and sense of belonging of all people in the environment.

Discrimination and harassment are prohibited by Titles IV, VI and VII of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972. They are also prohibited by the Pennsylvania Human Relations Act of 1955. In addition, various other constitutional provisions, statutes and common law causes of action prohibit such discriminatory conduct. It is the policy of the University to enforce these laws among its students and employees.

East Stroudsburg University is committed to eliminating incidents of illegal discrimination in personnel policies and practices within the institution through affirmative efforts at education and support. When violations of this policy occur, various forms of disciplinary action, where appropriate, may be imposed within the parameters of protected speech.

Policy

• No student or employee of the University or contractor/vendor conducting business with the University may illegally discriminate on the basis of race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference, or gender when assigning education–related or work–related benefits and burdens.
• No student or employee of the University, or contractor/vendor conducting business with the University, may engage in illegally harassing conduct which creates a hostile learning or work environment for other students or employees of the University.
• No University employee may create the perception in the mind of a reasonable student or subordinate that the granting or withholding of tangible academic or job benefits shall be based on the granting of sexual favors.
• University employees with supervisory responsibility who have been informed in writing or verbally by subordinates or have reason to know that this policy is being violated must take action to correct the situation. Supervisors shall refer the matter to the Office of Diversity & Equal Opportunity.
• It is the policy of the University to provide fair, expeditious and uniform procedures by which claims for such treatment may be investigated and resolved within the University community. It is also the policy of the University to safeguard the rights of those accused of discrimination. For that reason, sanctions shall not be imposed upon any students or employees of the University until they have received due process.

Definitions

1. AA/EO

• Affirmative Action/Equal Opportunity

2. Appropriate Vice President

• The Vice President with direct line responsibility over the college, department, office, agency, or other operational unit of the University in which the claimed discrimination occurred.

3. Clearly Offensive Conduct

• That conduct, be it verbal or nonverbal, which, when perceived in its overall context, would be taken by a reasonable person to be strongly objectionable and distasteful.

4. Complainant

• A person who files a written or oral complaint with the Office of Diversity & Equal Opportunity.

5. Confidential Information

• Information which can only be released by written authorization of the complaining party, the Director, or the State System's attorney.

6. Confront

• To verbally bring face to face and/or to contact regarding specific matters.

7. Demeaning Behavior

• Behavior which lowers the status, dignity or standing of any other individual as perceived in the mind of reasonable person.

8. Derisive Behavior

• Behavior which insults, taunts or otherwise belittles or shows contempt for another individual.

9. Director

• The Director of the Office of Diversity & Equal Opportunity, or her or his appointee.

10. Disability

• An individual's physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

11. Discrimination

• Conduct, including words, gestures and other actions, which unfairly disadvantages persons based upon their immutable characteristics such as race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age or disability.

12. Employee

• A person in a teaching or non-teaching position who receives compensation for work or services from funds controlled by the University, regardless of the source of the funds, the duties of the position, or the amount of compensation paid.

13. Harassment

• Unwelcome conduct that is demeaning or derisive of, or occurs substantially because of the race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference, or gender of a student or employee or groups of these individuals and which creates a hostile learning or work environment. Harassment shall include one or more of the three levels described below. Behavior described in Levels One and Two shall constitute harassment only when a pattern of such conduct continues after the harasser knew, or should have known, that the conduct was unwelcome, unless such conduct is "clearly offensive," in which case only one such incident is necessary. For certain conduct to constitute sexual harassment, the behavior must be sufficiently severe or pervasive so as to alter the conditions of the alleged victim's employment and create an abusive working (or learning) environment. (Source: Equal Employment Opportunity Commission 1984 policy guidelines on sexual harassment.)

14. Level One: Generalized Harassment

• Includes intentional behavior directed at an entire group which is based on demeaning or derisive stereotypes, is so pervasive that it creates a hostile learning or working environment, and that is not a part of a discussion or exchange of an idea, ideology or philosophy.
• Examples include comments or jokes, physical gestures or visual displays such as posters, etc.

15. Level Two: Individually Targeted Harassment

• Includes intentional, non–criminal behavior which is targeted at an individual or particular members of a group adversely affecting the work or learning environment, which can be verbal, visual or physical.
• Examples include negative or offensive comments, jokes, suggestions, or gestures directed to an individual's or group's race, ethnicity or national origin.

16. Level Three: Criminal Harassment

• Harassing behavior which violates state or federal criminal statutes.
• Examples include criminal harassment, criminal assault, sexual assault, rape, criminal mischief, arson and trespass.

17. Participant

• A person, other than a student or employee, who is participating in or attempting to participate in, or is receiving or attempting to receive the benefits of any program or activity conducted under the auspices of the University, including, but not limited to, applicants for employment, clients, spectators, visitors and volunteers.

18. Respondent

• A person named in a discrimination complaint as having engaged in or being responsible for a discriminatory act or omission.

19. Retaliation

• Any form of sanction or adverse treatment against a person because that person has asserted, or has assisted another person to assert, a discrimination complaint in either a formal or informal manner with the University or with any state or federal agency, or because that person has testified, assisted, or participated in any manner in an investigation or proceeding related to a discrimination complaint.

20. Sexual Harassment

• Any unwelcome treatment that is sexual in nature or occurs substantially because of the gender of the victim which creates a hostile work or learning environment. There are two types of sexual harassment: 1) hostile environment sexual harassment, which consists of three levels (see the definition of "Harassment," above) and 2) Quid Pro Quo sexual harassment (see the definition, below). (Source: Equal Employment Opportunity Commission 1984 policy guidelines on sexual harassment.)

21. Quid Pro Quo Sexual Harassment

• When a faculty member or supervisor's behavior creates the reasonable perception in the mind of a student or subordinate that the granting or withholding of tangible academic or job benefits shall be based on the granting of sexual favors. Examples include a professor promising a student an "A" if she/he sleeps with him/her, or a supervisor who threatens an employee with a poor review if she/he does not date him/her. (Source: Equal Employment Opportunity Commission 1984 policy guidelines on sexual harassment.)

22. Student

• A person applying for admission to, admitted to and duly registered as a participant in, or formally admitted to any program of instruction or training offered by the University at any level, whether or not for credit.

23. Subordinate

• Placed below another in rank, authority, power, status, etc.

24. PHRC

• Pennsylvania Human Relations Commission

Management Provisions

1. Education:
1. East Stroudsburg University recognizes the importance of educating its students and employees regarding the prevention of discrimination or harassment, the promotion of diversity, and the observance of high ethical standards in consensual relationships. Benefits from a such a program include:

• Informing individuals of their rights under this policy.
• Notifying individuals of proscribed conduct.
• Informing supervisors/managers about the proper way to address complaints of violations of this policy.
• Helping to educate members of the campus community about the problems this policy addresses.

2. To these ends, the University will organize an ongoing educational program in this area. Notice of this policy will be widely distributed. Workshops will be periodically conducted for employees of the University regarding discrimination, harassment, including sexual harassment, diversity, and consensual relationships.

2. Applicability:

1. Protection of academic freedom is valued in higher education. Deference to this ideal requires delicate balancing when applying this policy in the classroom. Faculty's good faith selection of subject matter and methodology, and the content of class discussions will be exempt, therefore, from the provisions of this policy. This exemption shall not apply to harmful or offensive personal attacks substantially based on a person's race, color, ethnic background, national origin, religion, creed, age, lack of American citizenship, disability, status of veteran of the Vietnam era, sexual orientation or preference, or gender.
2. Any student or employee of East Stroudsburg University who is or has been subjected to discrimination or harassment in violation of this policy may use the complaint procedures described herein.
3. Any student or employee who knows or has reason to know of violations of this policy in any activity conducted under the auspices of East Stroudsburg University is encouraged to report such conduct to the Office of Diversity & Equal Opportunity.
4. Questions regarding discrimination or harassment may be directed to the Office of Diversity & Equal Opportunity.
5. It is strongly encouraged that all administrative remedies provided hereunder be exhausted prior to initiating outside legal action through private sources, the PHRC or the appropriate federal enforcement agency.
6. If an investigation reveals evidence of criminal conduct in discrimination or harassment, the Director shall refer the matter to the University's legal counsel. This decision need not be based upon the alleged victim's choice of action.
7. Consideration shall be given to the alleged victim's requests in the investigation process and during fact finding. University officials, however, reserve the right to override the alleged victim's preferences in handling complaints. The justification for any decision to override the alleged victim's preference shall be documented in writing.
8. The Director, and others designated by the institution, must provide direction and assistance to the complainant and the respondent.

3. Protection of the Parties:

1. Complaint investigations shall be treated with discretion to protect the privacy of those involved, as permitted by law.
2. The intentional disparagement of a complainant, respondent or witness during the pendency of an investigation shall constitute a violation of this policy.
3. Neither the respondent, nor the complainant, nor any of their representatives shall contact any other party regarding allegations of discrimination unless such contact is arranged by the responsible supervisor handling the complaint or the Office of Diversity & Equal Opportunity with permission of the complainant and the respondent.
4. The University shall vigorously pursue this policy to protect against discrimination or harassment.
5. Individuals found to have knowingly filed false complaints will be subjected to administrative disciplinary action up to and including termination or expulsion.
6. Retaliation against any complainant, respondent, or any other person who has testified, assisted or participated in any manner in an investigative proceeding under this policy is prohibited.
7. Individuals found guilty of any retaliation may face disciplinary action up to and including termination or expulsion.

4. Available Remedies:

1. These complaint procedures do not set any limit on existing administrative discretion or powers. Remedies should be considered on a case–by–case basis.
2. Employees and students found guilty of discrimination or harassment may face disciplinary action up to and including termination or expulsion. Imposition of such discipline may not occur unless the respondent has been afforded due process.

5. Records:

1. Records of all discrimination or harassment complaints shall be sealed, maintained and stored for a period of three years in the Office of Diversity & Equal Opportunity.
2. All information contained in the complaint file is classified as confidential.
3. Participants in such complaint proceedings shall treat all information as confidential.

Complaint Procedure

1. Options:
1. Those who believe they are victims of discrimination or harassment, witnesses, or others may address discrimination or harassment issues by utilizing one or more of the following options:

• Consult with or register a complaint with the Office of Diversity & Equal Opportunity.
• Seek to resolve issues directly with the individual(s) alleged to have discriminated or harassed.
• If the discrimination or harassment is student to student, the option of using the student disciplinary process under the Student Code of Conduct is also available.

2. Initial Contact with the Complainant:

1. Any person who believes he or she is the victim of discrimination or harassment or who has knowledge of such conduct is encouraged to report that conduct directly to the Office of Diversity & Equal Opportunity or the Office of Disability Services. (If the discrimination or harassment is student to student, the option of using the student disciplinary process under the Student Code of Conduct is also available.)
2. Complaints should be brought as soon as possible after the event(s) which give rise to the complaint. Complaints should be filed within six months (180 days) of the most recent act which violates the policy. Where the interests of justice require, however, this time limit may be waived with the consensus of the Director, the appropriate vice president and the University counsel.
3. The initial complaint may be submitted to the Director of Diversity & Equal Opportunity either orally or in writing. In either case, the Director shall, in a meeting with the complainant, complete a Discrimination/Harassment Intake Form. (See Appendix A)
4. The Intake Form shall include the identity of respondent(s); a description of the alleged behaviors; the frequency, intensity and duration of the behaviors complained of; the emotional and/or physical damages the complainant alleges resulted from the conduct; and the remedial action sought by the complainant.
5. If a notice or inquiry is submitted orally or in writing, the Director shall proceed with contacting the respondent(s) when all of the following conditions are met:

• The Director, in the presence of the complainant, completes and signs the Intake Form.
• In cases where the Director is unable to obtain the signature of the complainant on the Intake Form, the Director will note the action and reason on the Intake.
• The alleged incident shall be directly referenced to one or more actions which are defined and prohibited by this policy

6. If the initial complaint of a violation of this policy is received by any employee of the University other than in the Office of Diversity & Equal Opportunity, the person contacted shall refer the complaint to the Office of Diversity & Equal Opportunity.
7. If the initial complaint is directed to the Office of Diversity & Equal Opportunity or if an unresolved complaint is referred to the Office of Diversity & Equal Opportunity:

• The Office of Diversity & Equal Opportunity shall complete the Intake Form and, if the complaint includes allegations which would constitute a violation of this policy, initiate an investigation as defined below.
• The Director shall attempt informally to facilitate an agreement satisfactory to the parties. As part of this effort, the Director shall encourage the parties to meet for face–to–face negotiations. No party, however, shall be forced to meet with the other party at this stage of the complaint procedure.
• Agreements towards resolution of complaints shall be documented in writing with all parties signing and receiving copies.
• The Director shall inform dean level supervisors with line authority over the respondent(s) named in the complaint that an investigation has been initiated.
• The director may initiate an independent investigation into alleged discrimination or harrassment, which need not be based upon the alleged victim's choice of action.

3. Initial Contact with the Respondent:

1. The Director shall notify the respondent(s) within five days from the initial complaint. During the intake meeting, the Director shall inform the respondent(s) of their rights and responsibilities during the investigation, and shall be provided a copy of the policy. The Director shall give the respondent(s) an opportunity of no more than ten days following this meeting to provide him/her with a written response to the allegations.
2. The Director shall then attempt to resolve the complaint by working directly with the parties. As part of that effort, the Director shall encourage the parties to meet for face–to–face negotiations. However, no party shall be forced to meet with the other party at this stage of the complaint procedure.
3. If the dispute is resolved to the satisfaction of the parties, an agreement towards resolution of the complaint(s) shall be documented in writing with all parties signing and receiving copies. The agreement shall then be sent to University Legal Counsel for review and approval.
4. If the agreement is approved by University Legal Counsel, the Director shall review the agreement 90 days following its approval to verify that its terms have been carried out by all parties. If so, the matter will be closed. A sealed file will be maintained in the Office of Diversity & Equal Opportunity for three years and then destroyed.

4. Investigation:

1. When the parties cannot come to a mutual agreement sanctioned by the University, the Office of Diversity & Equal Opportunity or a designee of the President, shall conduct an investigation of complaints. When conducting investigations, the Office of Diversity & Equal Opportunity shall disclose its role as a neutral investigator for the institution, as distinguished from an advocate for any of the parties involved.
2. The extent of an investigation shall be determined by the Director, but at a minimum shall include interviews with all complainants and respondents. It is within the Director's discretion to determine the order of these interviews.
3. All parties and witnesses will be interviewed by the Director. Assertions of the parties or witnesses will be put into writing and shared with all other parties. All parties will be given the opportunity to respond, in writing or during taped interviews, to the assertions made by parties and witnesses during the investigation.
4. An investigation shall be completed as quickly as practicable, but in any event, within twenty–five working days of receipt of the complaint, unless a longer period of time is reasonably required. Reasonable cause for delay includes, but is not limited to, the unavailability of key witnesses or the discovery of new evidence requiring further investigation. The Director shall attempt to keep the parties informed of the progress of the investigation throughout its duration. When delays occur, the parties shall be informed of them as soon as practical.
5. Within ten working days of the conclusion of the investigation, the Director shall make available to the parties a written report. The report shall review the complaint response, evidence adduced from the investigation and findings. The findings shall indicate whether it was more likely than not that a violation of this policy occurred.
6. The parties shall then have ten working days to provide to the Director their written responses to the investigation report. At the end of that ten day period, the Director shall file the report and any written responses received from the parties with the appropriate vice president.

5. Remedial Action:

1. If a complaint is found to be factually supported in whole or in part, the appropriate vice president or the President shall implement corrective and remedial steps necessary to eliminate the effects of the discrimination upon the complainant and upon any other person similarly situated.
2. The complainant and respondent shall be given a written copy of the specific corrective and remedial action ordered to be taken.

6. Sanctions:

1. No sanctions of any kind may be imposed solely on the basis of a complaint investigation by the Office of Diversity & Equal Opportunity.
2. Once the appropriate vice president or the President has reviewed the report of the Director along with any responses there to filed by any of the parties, she or he shall determine whether to close the complaint, attempt informal conciliation between the parties or initiate disciplinary proceedings. These proceedings shall include due process rights for the respondent, as provided by the appropriate administrative or student policies. These policies also indicate the rights of complainants to appeal any decision to close the complaint without disciplinary sanctions being imposed.

7. Resolution Review:

1. Within 90 days following the resolution of a complaint or the imposition of sanctions resulting from a complaint, the Office of Diversity & Equal Opportunity shall conduct a review to determine if the resolution of the case is being followed.
2. If the review indicates that the resolution is being followed, the matter shall be terminated and the case file closed.
3. If the follow–up review indicates that the resolution is not being followed, the case shall be referred back to the President or the appropriate vice president for consideration of additional disciplinary action(s), including possible disciplinary action against violators and their supervisors who knew that the resolution was not being followed, or that the unacceptable behavior continued to exist, and failed to take corrective action.