Note
After many years, the University now has an approved single policy for Unlawful Harassment and Unlawful Discrimination that applies to students, faculty and staff. This approved policy is the culmination of the effort of many people over many years. In the past there was a single policy for faculty and another separate policy for staff and students. We now have a unified policy that applies to all members of the campus community. This new policy has been approved by the Student Affairs Committee, Faculty Affairs Committee, Faculty Senate, Staff Affairs Committee, Staff Assembly Council, the President and Administration, and the Board of Trustees.
Policy 311 - Prevention of Unlawful Harassment and Discrimination
STATEMENTSanta Clara University is dedicated to:
Unlawful harassment and unlawful discrimination subvert these University ideals. The University does not tolerate unlawful harassment or unlawful discrimination and will take prompt and effective corrective action including, where appropriate, disciplinary action up to and including dismissal or expulsion. Any behavior constituting unlawful harassment or unlawful discrimination by any employee or student of the University, or by any other person engaged in a University activity, toward any employee or student of the University, or any other person engaged in a University activity, is prohibited. This prohibition applies to both: (1) behavior, whether on or off campus, in the course of any University administered class, program, job, or activity; and, (2) behavior in any other context, whether on or off campus, if at the time of the behavior the person engaging in the behavior knows that the other person is an employee or student of the University or a person engaged in a University activity. NATURE OF PROHIBITED CONDUCTUnlawful harassment and unlawful discrimination are defined and prohibited by federal and California law, as amended from time to time. Unlawful harassment Unlawful harassment is harassment that refers to or is based upon the protected status of the person or persons being harassed, including race, color, national origin, ancestry, sex, sexual orientation, age, religious creed, physical or mental disability, medical condition as defined by California law, marital status, citizenship status, or other status protected by law. Unlawful harassment also includes sexual harassment. Sexual harassment includes any of the following conduct: explicit or implicit requests by one person for sexual favors from another person that condition employment, academic progress, or other University benefit upon the performance of those sexual favors; other unwelcome sexual advances, touching, or propositions; continual verbal expression about an individual's body; sexually degrading words used to describe an individual; the offensive display in the workplace or educational environment of sexual objects or pictures. Sexual harassment also includes other physical, verbal, or visual conduct based on gender when: (1) it has the natural effect of unreasonably interfering with an individual's work or academic performance, or creating an intimidating, hostile, offensive, or abusive environment; or (2) submission to the conduct is an explicit or implicit term or condition of employment, academic progress, or student activity and/or submission to or rejection of the conduct is used as the basis for an employment or academic decision. Unlawful discrimination
Retaliation PROCEDURES RELATING TO COMPLAINTS OR REQUEST FOR ASSISTANCEApplication of procedures to faculty, staff, and students The Judicial Procedures applicable to enforcement of the Student Conduct Code apply to students, except that the procedures specified in this policy apply to the following cases involving students:
If there is doubt about whether cases involving students are covered by either of the two preceding paragraphs (numbered 3 and 4), the Director of Affirmative Action shall make a binding decision, not subject to appeal, as to whether the procedures specified in this policy or the Judicial Procedures applicable to enforcement of the Student Conduct Code shall apply. In reaching such a decision, the Director of Affirmative Action shall begin with the presumption that the procedures specified in this policy apply. For purposes of applying this policy, a student receiving compensation from the University for teaching responsibilities (including tutoring) shall be considered a student employee rather than faculty or staff. Initiation of complaint or request for assistance University supervisors and managers, including academic personnel with managerial authority on behalf of the University, have the following duties: (1) to report promptly to the Director of Affirmative Action any conduct that they observe that they believe may constitute unlawful harassment or unlawful discrimination; and (2) to communicate promptly to the Director of Affirmative Action any report of, complaint of, or request for assistance with respect to unlawful harassment or unlawful discrimination made to them. This duty applies even in cases in which the supervisor or manager is asked to or desires to participate in an attempted informal resolution of a complaint or request for assistance. Failure to comply with these duties may result in disciplinary action by the University. Initial evaluation by Director of Affirmative Action
Informal resolution One of the goals of the informal resolution process is to encourage and foster early action to prevent and/or correct conduct that the complainant believes is in violation of University policy. Accordingly, the fact of a respondent's agreement to undertake an informal resolution shall not constitute, shall not be used as, and shall not be construed as an admission that the respondent has violated University policy against unlawful harassment and unlawful discrimination, and the fact of a complainant's agreement to undertake an informal resolution shall not constitute, shall not be used as, and shall not be construed as an admission that the respondent has not violated University policy against unlawful harassment and unlawful discrimination. The Director of Affirmative Action is an experienced facilitator of informal resolution of these types of matters and the parties are encouraged to accept the Director of Affirmative Action's participation if the Director of Affirmative Action so suggests. The Director of Affirmative Action may also decline to serve as facilitator. If the complainant and respondent desire informal resolution to be facilitated by someone other than the Director of Affirmative Action, the Director of Affirmative Action shall advise them concerning the most appropriate and effective ways to proceed. If, during informal resolution, the Director of Affirmative Action, a supervisor or manager, or other neutral third person mutually chosen facilitates communication between the complainant and respondent in an attempt to resolve the complaint or request for assistance by agreement, the facilitation process constitutes mediation subject to the protections of confidentiality and against compelled disclosure, and the exceptions to those protections, that are stated in sections 1115 through 1128, inclusive, of the California Evidence Code. An attempt at informal resolution shall be initiated, if at all, within 10 working days of receipt of the complaint or request for assistance, and should proceed to conclusion (whether successful or unsuccessful) within 20 working days of initiation of the informal resolution process. The facilitator may extend the deadline for informal resolution for one succeeding period of 10 working days if the facilitator reasonably believes that a successful informal resolution is possible within the extended time. The following are examples of informal resolution:
If the Director of Affirmative Action has not participated in achieving an informal resolution, the parties, the supervisor or manager, or other neutral third person shall inform the Director of Affirmative Action in writing of the results of any attempt at informal resolution within 5 working days of conclusion of those efforts and shall attach any written agreement between the parties. Formal Resolution If the Director of Affirmative Action has not previously attempted to facilitate an informal resolution, the Director of Affirmative Action shall initiate a formal investigation within 10 working days of the decision to do so and shall serve as the investigator. If the Director of Affirmative Action has previously attempted to facilitate an informal resolution, the President of the University or his designee (or the Chair of the Board of Trustees if the complaint is against the President) shall promptly name an alternative qualified person to undertake the investigation. The investigator so chosen must be able to and shall initiate the investigation within 10 working days of being named. Investigation of the complaint or request for assistance will be thorough and proceed to conclusion within 30 working days of the initiation of the investigation. When the investigation is completed, the investigator will promptly report in writing to the appropriate University officer. The report shall include the investigator's evidentiary findings of the occurrence or non-occurrence of the alleged conduct and the investigator's legal conclusion as to whether conduct that occurred amounted to unlawful harassment or unlawful discrimination. The appropriate University officer will then promptly decide upon the resolution, including, if appropriate, a remedy and prompt and effective corrective action. The appropriate University officer is determined by the role of the parties in the University community (faculty, staff, or student) at the time of the alleged conduct. 1. Except for cases described in paragraph E.2 immediately below,
2. If the Assistant Vice President for Human Resources is the respondent or is a complainant in a case in which a staff member is a respondent, the appropriate University officer is the Vice President for Administration and Finance. If the Provost or a vice president is the respondent, the appropriate University officer shall be the President. If the President is the respondent, the appropriate University officer is the Chair of the Board of Trustees. 3. In a case involving multiple respondents with different roles in the University community at the time of the alleged conduct (e.g. one respondent is a faculty member and one respondent is a staff member), the investigator shall report to the appropriate University officer for each respondent. The appropriate University officers shall consult with one another prior to deciding upon a resolution, remedy, or corrective action to assure that any differences in their decisions will be reasonably related to differences in the conduct of the respondents. Subject to legal constraints on disclosure (e.g. Family Educational Rights and Privacy Act) and to the extent appropriate considering the privacy of individuals involved, the appropriate University officer will inform the complainant and respondent(s) in writing of the evidentiary findings of the investigator and the resolution of the matter, including any remedy or corrective action to be taken. The complainant, respondent, and the University shall act in conformity with the resolution. An appeal shall stay such action unless the University determines that such action is necessary to prevent additional harm to an aggrieved party or other persons. Appeal of formal resolution The appropriate appellate decision maker is identified in paragraphs F.1 through F.5 immediately below. 1. Except for cases described in paragraphs F.2, F.3, and F.4 immediately below,
2. Except for cases described in paragraphs F.3 and F.4 immediately below, appeal is to the President in the following cases (in which, at the time of the alleged conduct, the role of the complainant (e.g. staff) and the role of the respondent (e.g. faculty) in the University community differed):
Prior to rendering his decision, the President may consult with any person who participated in the formal resolution process, including the complainant and respondent, and with any other person whose advice he deems relevant, and shall consult with the following persons:
3. An appeal may be taken instead to neutral arbitration only if all of the following conditions are met: both the complainant and the respondent were staff members at the time of the alleged conduct; the complainant did not hold a continuing faculty appointment at the time of the alleged conduct; the complainant and respondent both agree to neutral arbitration. The arbitrator shall be a qualified professional labor/employment arbitrator who is not employed by or affiliated with the University. In cases of agreed referral to a neutral arbitrator, the staff member and the University will promptly choose any arbitrator by mutual agreement. If the staff member and the University are unable to agree on the identity of the arbitrator, the staff member shall request a panel of names from JAMS/Endispute of Santa Clara County. The arbitrator shall be chosen from the panel of names by alternate striking of names, beginning with the staff member, until one is left, who shall serve as arbitrator. The University shall be responsible for the professional fees of the arbitrator, unless the staff member objects, in which case the University and the staff member shall each be responsible for 50% of the professional fees of the arbitrator. The arbitrator will be authorized to award appropriate remedy under law as to the specific issues submitted; however, the arbitrator shall have no power to add to, subtract from, change, alter, or ignore the provisions of the Staff Policy Manual or any other University policy. The decision of the arbitrator shall be binding upon the complainant and respondent(s) and upon the University. 4. If the Assistant Vice President for Human Resources is the respondent or is a complainant in which a staff member is a respondent, appeal shall be to the President. If the Provost or a vice president is the respondent, appeal shall be to the Chair of the Board of Trustees. If the President is the respondent, appeal shall be to the Board of Trustees. 5. In a case involving multiple respondents with different roles in the University community at the time of the alleged conduct (e.g. one respondent is a faculty member and one respondent is a staff member not holding a faculty appointment) an appeal shall be taken to the appellate decision maker designated above for each respondent involved in an appeal. If, as a consequence, there is more than one appellate decision maker, such decision makers shall consult with one another prior to a decision to assure that any differences in their decisions will be reasonably related to differences in the conduct of the respondents. Appeals shall be heard promptly. Ordinarily, decisions should be rendered not more than 10 working days after the appellate decision maker has received all evidence and argument. Subject to legal constraints on disclosure (e.g. Family Educational Rights and Privacy Act) and to the extent appropriate considering the privacy of individuals involved, the appellate decision maker shall immediately inform the complainant and respondent of the decision in writing. If a student covered by these procedures is a respondent, the appeal shall not be subject to the appellate screening mechanisms applied to alleged violations of the Student Conduct Code. If a person appeals an investigator's evidentiary findings, the appellate decision maker shall affirm the evidentiary findings unless it concludes that those findings were clearly erroneous. If it decides that the investigator's evidentiary findings of the occurrence of conduct found to constitute unlawful harassment or unlawful discrimination were clearly erroneous, it shall so inform the parties in writing, shall dismiss the matter, and no further action shall be taken against the respondent(s). If it decides that the investigator's evidentiary findings of the non-occurrence of alleged conduct were clearly erroneous, it shall so inform the parties in writing, and shall refer the matter for resolution (including remedy and corrective action, if any) by the University officer to whom the investigator reported. If a person appeals the remedy or corrective action ordered by the appropriate University officer, the appellate decision maker shall affirm the remedy or corrective action unless it finds the remedy or corrective action to be arbitrary or manifestly unreasonable. If it finds the remedy or corrective action to be arbitrary or manifestly unreasonable, it shall decide upon the remedy or corrective action if any. In either case, the decision by the appellate decision maker shall be final, shall be communicated to the parties in writing, and shall be implemented promptly. Definition of "working days" and extension of deadlines Compliance Documentation Rank and tenure decisions Confidentiality 2. University personnel and students (other than the complainant and respondent) participating in the resolution of a complaint or request for assistance shall preserve the confidentiality of information that in any way relates to the existence, nature, and resolution of a complaint or request for assistance, except: (a) to the extent necessary to pursue resolution or appeal of a complaint or request for assistance; (b) to the extent that disclosure is required by law; (c) to the extent that disclosure, including disclosure that exculpates, is required by the ordered remedy or corrective action; (d) to the extent that the Director of Affirmative Action reasonably deems disclosure appropriate to effectuate a remedy or corrective action for the benefit of the complainant, other members of the University community, or the University. Failure to maintain confidentiality may result in disciplinary action by the University. Urgent Action Designee in lieu of Director of Affirmative Action RESPONSIBILITIESTo achieve the goals of this University policy, each member of the University community must understand and accept responsibility for fulfilling the ideals of the University Statement of Purpose and for honoring its Guiding Principles. The President, Provost, vice presidents within their areas, together with vice provosts, deans, program chairs, Director of Affirmative Action, managers, and supervisors, are responsible for promoting progress on the ideal of building a diverse, nondiscriminatory community, initiating creative actions to increase diversity, and promoting an environment of mutual respect. Academic deans (for faculty), the Dean of Student Life (for students), and the Assistant Vice President for Human Resources (for staff) are responsible for monitoring implementation of this policy. The Director of Affirmative Action is responsible for responding to inquiries regarding federal and state laws as well as filing reports required by federal and state law. As appropriate, the University will make available educational programs concerning unlawful harassment and unlawful discrimination. RESOURCESFor more information about this policy, including information about the nature of unlawful harassment and unlawful discrimination, contact: Affirmative Action Office A person aggrieved by unlawful harassment or unlawful discrimination may file a complaint within the time required by law with the appropriate federal or state agency. Depending upon the nature of the complaint, the appropriate agency may be the federal Equal Employment Opportunity Commission (EEOC), the federal Office of Civil Rights (OCR), or the California Department of Fair Employment and Housing (DFEH). Flow Charts depicting lines of formal resolution (PDF) Last Updated: June 1, 2007 |

