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HOP 3.7.1 Sexual Harassment and Misconduct

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Sec. 1 Purpose

This Policy is to set forth the commitment of The University of Texas System Administration (U. T. System Administration) to create an environment free from sexual misconduct and sexual harassment and to comply with federal and state laws regarding sexual harassment.

Sec. 2 Principles

The U. T. System Administration is committed to the principle that the working environment of its employees should be free from inappropriate conduct of a sexual nature. Sexual misconduct and sexual harassment are unprofessional behaviors and individuals who engage in such conduct will be subject to disciplinary action. U. T. System Administration assures that all reports or complaints of sexual harassment and/or misconduct are addressed in an immediate and impartial manner to remediate or prevent the prohibited conduct from continuing.  Furthermore, U. T. System Administration is committed to providing the training necessary to educate staff to understand and respect these policies and procedures.

Sec. 3 Applicability

This Policy applies to all U. T. System Administration employees and third parties acting on behalf of U. T. System Administration, including visitors and applicants for employment. It applies to conduct regardless of where it occurs, including off U.T. System Administration property, if it potentially affects the complainant's employment with U. T. System Administration  U. T. System Administration does not tolerate harassment based on or related to sex, race, national origin, religion, age, disability, protected veteran status, genetic information, or other protected categories, classes, or characteristics. While sexual orientation and gender identity are not explicitly protected categories under state or federal law, it is U. T. System Administration’s policy not to discriminate in employment or use of programs, activities, facilities, or services on these bases. In addition, it applies whether the complaint was made by or against a third party, and whether the complaint was made verbally or in writing. 

Sec. 4 Consensual Relationships

4.1 Romantic or sexual relationships between a supervisor and a person under his or her supervision create situations that may lead to sexual harassment, conflicts of interest, favoritism, and low morale. Therefore, such relationships are discouraged. This policy is not intended to discourage the interaction of supervisors and employees where it is appropriate and ethical.

4.2 If a romantic or sexual relationship exists between a supervisor and an employee under his or her supervision, the supervisor must immediately inform his or her supervisor of the relationship. Failure to do so may result in disciplinary action. Additionally, displays of affection in the work environment are strictly prohibited and may result in disciplinary action. A display of affection includes, but is not limited to, kissing, handholding, and other behavior as specified in the definitions section of this policy.

4.3 Complaints concerning consensual relationships impacting the work environment by nonparticipating individuals will be addressed per the process outlined in Section 9.

Sec. 5 Options for Individuals to Address Possible Violations

The U. T. System Administration provides an informal resolution process and a formal complaint procedure that individuals may use to address possible violations. The informal process described in this policy may be used as a prelude to filing a formal complaint, or as an alternative. It is not necessary that the informal option be used. Anyone who believes that he or she has been subject to sexual harassment or sexual misconduct may immediately file a formal complaint by following procedures outlined in this policy. Support resources  via the Employee Assistance Program (EAP) are available to individuals who have concerns about sexual harassment or who may need support during the informal or formal process.

All employees and third parties are strongly encouraged to immediately report any incidents of Discrimination, sexual misconduct (including sexual harassment and sexual violence) and other inappropriate sexual conduct to the Chief Human Resources Officer, Equal Employment Opportunity (EEO) Officer or designee.

Individuals wishing to remain anonymous can file a complaint in any manner, including by telephone or written communication with the Chief Human Resources Officer, Equal Employment Opportunity (EEO) Officer or designee; however, electing to remain anonymous may greatly limit U.T. System Administration’s ability to stop the harassment, collect evidence, or take effective action against individuals or organizations accused of violating the Policy.

Complaints should be reported as soon as possible after the complainant becomes aware of the inappropriate conduct. Delays in reporting can greatly limit U.T. System Administration’s ability to stop the harassment, collect evidence, and/or take effective action against individuals or organizations accused of violating the Policy.

Sec. 6 Informal Resolution Process

6.1 When an individual does not wish to file a formal complaint, the informal resolution process provides assistance to the individual to resolve possible sexual harassment or sexual misconduct. Such assistance includes developing strategies for the individual to effectively inform the offending party that his or her behavior is unwelcome and should cease, action by an appropriate U. T. System official to stop the unwelcome conduct, or mediation. The U. T. System may also take more formal action to ensure an environment free of sexual harassment and sexual misconduct.

6.2 To utilize the informal resolution process, an individual should contact the Chief Human Resources Officer, the Equal Employment Opportunity (EEO) Officer, or designee.

Sec. 7 Complaint Procedure

7.1 Grievance Procedure. This complaint procedure also constitutes the grievance procedure for complaints alleging unlawful sex discrimination required under Title IX of the Education Amendments of 1972. As used herein, "complaint" is synonymous with "grievance."

7.2 Reporting of Sexual Harassment or Sexual Misconduct.

a) The U. T. System encourages any person who believes that he or she has been subjected to sexual harassment or sexual misconduct to immediately report the incident to the supervisor of the accused employee, and/or to the Chief Human Resources Officer and/or to the EEO Officer or designee. In no case will a complainant be required to report such behavior to the person accused of the misconduct. When a supervisor receives a complaint, he/she will immediately notify the Chief Human Resources Officer, the EEO Officer, or designee. The Chief Human Resources Officer, the EEO Officer, or designee will advise the complainant of the procedures for filing a formal complaint of sexual harassment.

b) U.T. System encourages the prompt reporting of complaints or concerns so that rapid and constructive action can be taken, when appropriate. Early reporting and intervention have proven to be the most effective method of resolving actual or perceived incidents of discrimination or harassment.

7.3 Initiation of the Investigation Process. The complainant should submit a written and signed statement setting out the details of the conduct that is the subject of the complaint, including the complainant's name, signature, and contact information; the name of the person directly responsible for the alleged violation; a detailed description of the conduct or event that is the basis of the alleged violation; the date(s) and location(s) of the occurrence(s); the names of any witness(es) to the occurrence(s); the resolution sought; and any documents or information that are relevant to the complaint. While an investigation may begin based on an oral complaint, the complainant should file a written complaint; or an EEO Officer or designee will prepare a written statement setting forth the details of the complaint and send such written statement to the complainant for verification of the allegations.

7.4 Complaint Investigation.

a) The Chief Human Resources Officer, the EEO Officer, or designee will investigate all complaints. If the complaint is not made in writing, the investigator will prepare a written statement of what he or she understands the complaint to be and seek to obtain verification of the statement from the complainant.

b) Within five working days of receipt of a complaint, the Chief Human Resources Officer, the EEO Officer, or designee may either dismiss the complaint or authorize an investigation of the complaint. A complaint may be dismissed if the facts alleged in the complaint, even if taken as true, do not constitute sexual harassment or sexual misconduct; the complaint fails to allege any facts that suggests sexual harassment or sexual misconduct occurred; or the appropriate resolution or remedy has already been achieved, or has been offered and rejected.

c) If it is determined that a complaint will not be investigated, the Chief Human Resources Officer, the EEO Officer, or designee will send the complainant a notification letter explaining the reason the complaint will not be investigated and informing the complainant that he or she may appeal the decision not to proceed with a complaint investigation to the  Chancellor or the Chancellor’s Designee within 10 working days of the notification.

d) The written appeal must explain why the decision to dismiss the complaint was in error. The  Chancellor or the Chancellor’s Designee will respond within 20 working days of receipt of the appeal. The  Chancellor’s or Chancellor’s designee’s decision is final. If the decision to dismiss the complaint is overturned, the complaint is sent back to the Chief Human Resources Officer, the EEO Officer, or designee for investigation in accordance with the procedures outlined below.

e) As part of the investigation process, the accused individual shall be provided with a copy of the complaint and allowed a reasonable time to respond in writing.

f) The complainant and the accused individual may present any document or information that is believed to be relevant to the complaint.

g) Any persons thought to have information relevant to the complaint shall be interviewed and such interviews shall be appropriately documented. Other acceptable methods for gathering information include but are not limited to visual inspection of materials alleged to be offensive and follow-up interviews as necessary.

h) The investigation of a complaint will be concluded as soon as possible after receipt of the written complaint. Investigations exceeding 60 days shall be reviewed by the  Chancellor or the Chancellor’s Designee. Justification for the prolonged investigation will be documented. The complainant, accused individual, and supervisor will be provided an update on the progress of the investigation after the review.

7.5 Report of Findings of Investigation and Recommendations for Action.

a) Upon completion of the investigation, a written report will be issued. The report will include a recommendation of whether a violation of the policy occurred, an analysis of the facts discovered during the investigation, and recommended disciplinary action if a violation of the policy occurred.

b) A copy of the report will be sent to the appropriate department head or administrative official, the appropriate Vice Chancellor, the Executive Vice Chancellor or Chancellor, the complainant, and the respondent. The complainant and respondent have seven working days from the date of the report to submit comments regarding the report to the department head or administrative official.

c) Within 30 working days of receiving any comments submitted by the complainant or respondent, the appropriate department head or administrative official will take one of the following actions:

i. request further investigation into the complaint;

ii. dismiss the complaint if the results of the completed investigation are inconclusive or there is insufficient reasonable, credible evidence to support the allegation(s); or

iii. find that this Policy was violated.

d) A decision that the policy was violated will be made based on the evidence provided by the investigator and any comments submitted by the complainant or respondent during the seven-day review period. The decision will be based on the totality of circumstances surrounding the complaint, including but not limited to, the context of that conduct, its severity, frequency, whether it was physically threatening, humiliating, or was simply offensive in nature. Facts will be considered based on a reasonable person standard.

e) If the appropriate department head or administrative official determines that this policy was violated, he or she will take disciplinary action that is appropriate for the severity of the conduct. Disciplinary actions include but are not limited to written reprimands, the imposition of conditions, reassignment, suspension, and dismissal.

f) The complainant and the respondent will be informed in writing of the department head or administrative official's decision and will be provided a copy of the final statement of findings.

g) Implementation of disciplinary action will be handled in accordance with the U. T. System's policy and procedures for HOP 3.7.3 Discipline/Dismissal of Employees.

7.6 Assistance. During the complaint process, a complainant or respondent may be assisted by a person of his or her choice; however, the assistant may not examine witnesses or otherwise actively participate in a meeting or interview.

Sec. 8 Retaliation Prohibited

U. T. System Administration will take all reasonable steps to ensure a timely resolution and that there is no retaliation against a complainant. An employee who retaliates in any way against an individual who has brought a complaint pursuant to this policy or an individual who has participated in an investigation of such a complaint is subject to disciplinary action, including dismissal.

Sec. 9 Confidentiality

U. T. System Administration will endeavor to protect the privacy of all parties and to maintain confidentiality of complaints and information received during an investigation to the extent permitted by law. In the course of the investigation, U. T. System Administration may share information only as necessary with people who need to know to fulfill the purposes of this Policy and applicable law, such as, but not limited to, investigators, witnesses, and the respondent.  U. T. System Administration will comply with the Family Educational Rights and Privacy Act (FERPA), with Texas Education Code Sec. 51.971 and other confidentiality laws as applicable.

Sec. 10 Policy Distribution and Training

10.1 This Policy will be made available to all employees. Periodic notices sent to employees will include information about complaint procedures and will refer individuals to designated offices or officials for additional information.

10.2 U. T. System Administration will periodically educate and train employees and supervisors regarding the Policy, and conduct that could constitute a violation of the Policy.

Sec. 11 Confidential Support and Resources

Physical and mental health care professionals and pastoral counselors (including those who act in that role under the supervision of these individuals), are prohibited by confidentiality laws from reporting any information about an incident to anyone, in any way that identifies the victim, without the victim's permission. Thus, employees may discuss an incident with a counselor in the Employee Assistance Program (512-471-3366), Compliance Hotline (877-217-2426) or an off-campus resource (i.e. rape crisis center, doctor, psychologist, etc.) without concern that the incident will be reported to the Chief Human Resources Officer, the EEO Officer, or designee .

The University of Texas System is committed to including employees in the process of ensuring that U. T. System operates in an ethical, honest, and lawful manner. U.T. System Administration require that all suspected criminal activity must be immediately reported to the university police department.

Definitions

Sexual Harassment -    Unwelcome conduct of a sexual nature including but not limited to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, when:

a) Submission to such conduct is made either explicitly or implicitly a term or condition of a person's student status, employment, or participation in University activities; or

b) Such conduct is sufficiently severe or pervasive that it creates a hostile environment, as defined in this policy.

Quid Pro Quo – a form of sexual harassment that occurs when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual.

Hostile Work Environment - sexual harassment that is so severe or pervasive as to limit or alter the terms or conditions of the victim’s employment and create an abusive working environment violates Title VII of the Civil Rights Act and System Policy.

In determining whether sex-based harassment has created a hostile environment, UT System considers the conduct in question from both a subjective and objective perspective.  It will be necessary, but not adequate, that the conduct was unwelcome to the individual who was harassed. To conclude that conduct created or contributed to a hostile environment, UT System must also find that a reasonable person in the individual’s position would have perceived the conduct as undesirable or offensive.

To ultimately determine whether a hostile environment exists for an individual or individuals, UT System considers a variety of factors related to the severity, persistence, or pervasiveness of the sex-based harassment, including: (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of the persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and (5) the degree to which the conduct affected an individual’s education or employment.

The more severe the sex-based harassment, the less need there is to show a repetitive series of incidents to find a hostile environment.  Indeed, a single instance of sexual assault may be sufficient to create a hostile environment.  Likewise, a series of incidents may be sufficient even if the sex-based harassment is not particularly severe.

Sexual Misconduct –  A broad range of non-consensual sexual activity or unwelcome behavior of a sexual nature, including, but not limited to: sexual assault, sexual exploitation, sexual intimidation, sexual harassment, domestic violence, dating violence, and stalking.

Examples of deliberate behavior that could be considered sexual misconduct or sexual harassment include but are not limited to:

  • Sexual violence, sexual assault, stalking, domestic violence and dating violence;
  • physical contact of a sexual nature including touching, patting, hugging, or brushing against a person's body;
  • explicit or implicit propositions or offers to engage in sexual activity;
  • verbal or written comments of a sexual nature including sexually explicit statements, questions, jokes, or anecdotes;
  • verbal or written gratuitous comments, jokes, questions, anecdotes or remarks of a sexual nature about a person's clothing or body;
  • verbal or written gratuitous remarks about sexual activity;
  • verbal or written gratuitous remarks or speculation about sexual experiences;
  • exposure to sexually suggestive visual displays such as photographs, graffiti, pictures, posters, or other materials;
  • deliberate physical interference with or restriction of an individual's movements.
  • submission to such conduct is made, either explicitly or implicitly, as a term or condition of employment or student status;
  • submission to or rejection of such conduct is used as a basis for evaluation in making personnel decisions affecting an individual; and/or such conduct has the purpose or effect of unreasonably interfering with an individual's performance as an employee or creating an intimidating, hostile, or offensive environment;
  • unwelcomed sexual advances;
  • subtle or overt pressure for sexual favors;
  • deliberate, repeated humiliation or intimidation based upon sex; or
  • verbal or physical conduct of a sexual nature.