Sexual Harassment

Sexual Harassment and Discrimination Grievance Procedures

University of Nebraska at Kearney - June 2006

1. Applicability

The University of Nebraska at Kearney grievance procedures apply to, but are not limited to, any claim or charge relating to conditions of employment, as well as actions that affect the creation and promotion of a hostile work or academic environment. Acts of prohibited discrimination will not be tolerated in the work or academic environment, nor will acts of such discrimination be permitted outside the work or academic environment if such acts affect the normal work or academic environment.

These procedures are available to any employee, applicant for employment, student, candidate for admission, campus visitor or other invitee, licensee or university volunteer who believes he or she has not received the benefits of the Nondiscrimination or Sexual Harassment Policies. The University reserves the right to take appropriate action against prohibited discrimination affecting the academic or work environment in the absence of a complaint from an individual.

Any person acting on behalf of the University of Nebraska at Kearney, within the realm of his or her University duties or under University authority, is potentially subject to the sanctions provided herein. Inquiries or complaints about procedures and policies regarding inappropriate or prohibited student behavior should be addressed to the Dean of Student Life.

A work and academic environment free of discrimination is the responsibility of every member of the campus community. Students, faculty, staff and administrators may assist parties in bringing forward inquiries or complaints of alleged prohibited discrimination to those persons designated herein to receive such inquiries and complaints.

2. Retaliation

There shall be no retaliation against any person who in good faith participates in or takes advantage of these grievance procedures. This protection will extend to, but is not limited to, parties to a complaint, those who cooperate in an investigation, and those who testify at a hearing. Such retaliation will be treated as a separate offense, subject to these grievance procedures in the same manner as a prohibited discrimination complaint.

3. Confidentiality

To the greatest extent possible, University Representatives, employees of the Office of Affirmative Action/Equal Opportunity, and members of the Affirmative Action Commission or its designees shall observe confidentiality with respect to any matter brought under these procedures. The duty of confidentiality shall also extend to all parties to the complaint and the investigation. This duty of confidentiality does not preclude the authority to communicate to the parties' superiors or line officers, to conduct a meaningful investigation, to communicate with individuals or groups either party may have confided in or identified as a witness, or to place a report on file with the Office of Affirmative Action/Equal Opportunity.

4. Time Allowances

All periods of time set forth herein may be expanded or expedited if the Administrator, in the exercise of his or her good faith judgment, deems a greater or lesser amount of time is necessary to serve the intent of these policies and procedures.

5. Definitions

5.1. Administrator shall refer to the Director of the Office of Affirmative Action/Equal Opportunity or his or her designee.
5.2. Appropriate Administrative Officer shall refer to a Department Chair, Director, Dean or Vice Chancellor who serves a supervisory or line officer role to the Respondent.
5.3. Affirmative Action Commission shall refer to a University committee of eleven or more individuals nominated by various units of the campus community and appointed by the Chancellor to represent and oversee the Affirmative Action/Equal Opportunity policies and practices of the University of Nebraska at Kearney.   Designees may be used when individuals serving on the Commission are unavailable for a hearing panel.  A list of designees will be maintained by the Administrator and approved by the Chancellor.
5.4. Grievant Shall refer to any individual(s) filing a complaint pursuant to these procedures.
5.5. Respondent shall refer to any individual(s) against whom a complaint is filed.
5.6. University Representative shall refer to an employee of the University who serves in an administrative capacity, including Directors and Department Chairs. For the purposes of these procedures, University representative shall also include the Chair of the Faculty Senate Professional Conduct Committee and the University Ombudsperson.
5.7. Advisor shall refer to an individual identified by the grievant or respondent to attend the hearing as counsel to that party.  An advisor has no authority to address the hearing panel, to question witnesses, or otherwise to participate in the hearing.
5.8. Witness shall refer to an individual identified by the grievant or respondent to attend the hearing to provide information and answer questions. A witness shall attend the hearing only for the time needed to present his or her evidence.

6. Inquiry

A party may wish to inquire about the Nondiscrimination Policy and Grievance Procedures Relating to Alleged Prohibited Discrimination, but may not wish to initiate any action regarding the concern. This type of communication is considered an inquiry and is not a complaint.

7. Complaint

7.1. Filing of a Complaint
Any person to whom these procedures are available and who believes his or her rights have been infringed under the Statement of Equal Opportunity Policies is encouraged to file a complaint. Informal complaints of alleged prohibited discrimination shall be received by the Administrator or an Appropriate Administrative Officer. Formal complaints of alleged prohibited discrimination shall be received by the Administrator. A Complaint Form shall be completed by the Grievant stating the basis of the complaint, facts supporting the complaint and a request for action, informal or formal, to be taken. Records of all complaints of alleged prohibited discrimination shall be retained for not less than four years by the Office of Affirmative Action/Equal Opportunity.
7.2. Time Allowed in Which to File a Complaint
Any complaint of alleged prohibited discrimination must be brought to the Administrator or an Appropriate Administrative Officer within 180 calendar days of the act(s) or behavior of which the Grievant complains. Should the last day of any time period required under this statement fall on a day when the Office of Affirmative Action/Equal Opportunity is not open for business, the period shall be extended to the next day the office is open.
7.3. Withdrawal of a Complaint
The Grievant may withdraw the complaint at any point prior to the completion of a formal hearing. An informal complaint may be withdrawn by written notification to the Administrator or Appropriate Administrative Officer acting on the complaint. A formal complaint may be withdrawn by written notification to the Administrator.

8. Informal Proceedings

It is the policy of the Office of Affirmative Action/Equal Opportunity to encourage informal resolution of complaints of alleged prohibited discrimination; however, this policy recognizes that there are certain instances of particularly egregious behavior that indicate a hearing pursuant to Formal Proceedings set forth later in this statement is most appropriate.

The Administrator or Appropriate Administrative Officer shall be deemed to have received an informal complaint at the time a Grievant indicates, verbally or in writing, he or she desires some sort of informal action. Upon receiving an informal complaint, the Administrator or Appropriate Administrative Officer shall request that the Grievant complete a Complaint Form which shall be placed on file with the Office of Affirmative Action/Equal Opportunity. The Administrator or Appropriate Administrative Officer acting on the complaint shall inform the Respondent of the complaint normally within five working days of receipt of the complaint. Such notification may be by any method reasonably suited to communicate that an informal complaint has been made.

In order to facilitate mediation or conduct a well informed investigation, the course of informal action will consider sources suggested by the Grievant and the Respondent. Informal action may include, but is not limited to, communication with the Respondent, interviews or other investigation of the matter, mediation, conciliation, and education. The informal action requested shall normally be completed within 20 working days of the receipt of the informal complaint.

An informal complaint may be resolved in any of the following manners:

Mutually Satisfactory Resolution. Should the parties to the complaint arrive at a mutually satisfactory resolution, the Administrator or Appropriate Administrative Officer acting on the complaint shall place in writing the agreed upon resolution. The Grievant, the Respondent, and the Administrator or Appropriate Administrative Officer acting on the complaint shall each retain an original copy of the resolution, signed by all parties (Grievant, Respondent, Administrator or Appropriate Administrative Officer) to indicate the acceptance of the agreement. Upon such resolution, the matter shall be deemed to be closed. A copy of such resolution shall be placed on file with the Office of Affirmative Action/Equal Opportunity.
No Viable Informal Resolution. If the Administrator or Appropriate Administrative Officer acting on the complaint determines that no practical informal resolution is acceptable to the Grievant, the Respondent or the University of Nebraska at Kearney, such determination will be provided in writing to the Grievant and the Respondent. A copy of such determination shall be placed on file with the Office of Affirmative Action/Equal Opportunity. Either party may then appeal the matter to the Hearing Panel as a Formal Proceeding. Notice of appeal shall be given to the Administrator within 10 working days of the date of determination.
Dismissal. If the action taken clearly suggests that, on the basis of prohibited discrimination, no foundation exists for the complaint, the Administrator or Appropriate Administrative Officer acting on the complaint may dismiss the matter. Such dismissal will be provided in writing to the Grievant and the Respondent. A copy of such will be placed on file with the Office of Affirmative Action/Equal Opportunity. The Grievant may appeal the determination to the Hearing Panel as a Formal Proceeding. Notice of appeal shall be given to the Administrator within 10 working days of the date of the determination for dismissal.

9. Formal Proceedings

9.1. Request for a Hearing
A Grievant has the right to a formal hearing before the Hearing Panel without the benefits of Informal Proceedings. Further, as described in the Informal Proceedings, a party may appeal a determination made in that forum to the Hearing Panel. A formal complaint or a notice of appeal shall be placed in writing, signed, and presented to the Administrator in accordance with time allowances previously stated herein. The complaint or appeal shall set forth a request for formal proceedings, the basis of the complaint, and a specific description of the conditions, facts, events, or circumstances upon which the grievance is based. The Grievant is also encouraged to describe any reasonable action which the Grievant believes would remedy the stated concern. The complaint or appeal shall also prominently set forth the name, mailing address, and phone number at which the Grievant may be reached.
The Administrator shall supply the Respondent with a copy of the complaint or appeal normally within five working days of the receipt of the complaint or appeal. At the same time, the Administrator shall supply both parties with a list of persons eligible to serve on the Hearing Panel and a copy of the complete "Nondiscrimination Policy and Grievance Procedures Relating to Alleged Prohibited Discrimination."
The Respondent may supply to the Administrator a written response to the complaint or appeal normally within five working days of his or her receipt of the complaint or appeal. At the time of its receipt, the Administrator shall supply to the Grievant a copy of the Respondent's written response.
9.2. Selection of the Hearing Panel
Normally within 15 working days following the receipt of the written request for a hearing, the Hearing Panel shall be selected by the Administrator from representatives serving on the Affirmative Action Commission or their designees.
The Hearing Panel, including a chair appointed by the Administrator, will consist of three representatives from the above described group and will normally be representative of students, staff and faculty.  The Grievant and the Respondent shall each have an opportunity to review the list of representatives serving on the Affirmative Action Commission and request that the Administrator disqualify a panelist(s) for cause. No panelist who is the immediate supervisor or line officer over either party may serve on the Hearing Panel. A panelist may resign if he or she believes a conflict of interest exists. Replacements shall be selected by the Administrator.
The Administrator shall conduct an orientation meeting for all members of the Hearing Panel at which time the panel members shall be provided with the complaint or appeal, the written response, if any; findings resulting from any Informal Proceedings; and the Hearing Guidelines. The Administrator shall inform the Grievant and the Respondent of the date, time, and location of the orientation meeting. The Grievant and the Respondent may attend the orientation meeting without the right of active participation.
9.3 Hearing Guidelines
9.3.1.  The Hearing Panel shall set the hearing for a date normally within 20 working days of the selection of the complete Hearing Panel.
9.3.2.  Normally a t least 10 working days prior to the hearing date, the Grievant shall supply the Chair of the Hearing Panel with copies of all documents to be presented at the hearing and the names, addresses, and position or title of his/her witness(es), if any, to be heard at the Hearing. The Chair shall forward normally within one working day copies of this information to the Respondent. At least normally   five working days prior to the hearing date, the Respondent shall supply the Chair of the Hearing Panel with copies of all documents to be presented at the Hearing and the names, addresses and position or title of his/her witness(es), if any, to be heard at the Hearing. The Chair shall forward normally within one working day copies of this information to the Grievant. The Chair shall also provide normally within three working days prior to the hearing date, copies of all documents to be presented and witnesses to be heard to the members of the Hearing Panel.
9.3.3.  The hearing shall be conducted by the chair of the Hearing Panel. No formal rules of evidence shall apply. However, if there is no objection from the Hearing Panel, the chair may rule that evidence which is redundant or not relevant or meaningful to the hearing be denied admission.  The Chair shall instruct each participant concerning his or her role in the proceeding as described in these procedures.  The chair has full authority to make rulings to ensure compliance by all participants. '
9.3.4. The chair shall arrange for the hearing to be audio taped. Any written record of the hearing or transcription of the audio tape shall be arranged for and made at the expense of the party desiring such a record. No video or similar visual recording of the hearing shall be allowed.
9.3.5.  The Grievant and the Respondent may be accompanied by an advisor or legal counsel, if they so desire. The accompanying advisor or counsel may provide advice to the party, but may not address the Hearing Panel or question witnesses. (These internal processes of redress are designed to provide an opportunity for each party to be heard, but are not designed or capable of providing a courtroom setting with its attending technicalities.)
9.3.6.  The hearing shall not be open to the public as the matters addressed are of a personal and confidential nature. A witness shall be present at the hearing only for a time necessary to meaningfully present his or her evidence.
9.3.7.  Each party shall be permitted to present any relevant evidence, including but not limited to, documentation and live testimony from the party and witnesses.
9.3.8.  The Grievant shall be permitted to present his or her case first. The Respondent shall be given an opportunity to cross-examine the witnesses or other evidence presented.
9.3.9. The Respondent may then present his or her case, with a similar opportunity for the Grievant to cross-examine the witnesses or other evidence presented.
9.3.10.  The Grievant and the Respondent may continue to present evidence or respond in turn in the manner described above, until the chair deems no further relevant evidence is forthcoming.
9.3.11.  Following the presentation of evidence, each party shall be given an opportunity to make a closing statement.
9.3.12.  After the close of the hearing, the Hearing Panel shall be permitted 10 working days normally to deliberate. The deliberation of the Hearing Panel will be limited to statements and evidence presented by the Grievant, statements and evidence presented by the Respondent, and public documents, policy and bylaws of the University of Nebraska and the University of Nebraska at Kearney. Sanctions considered appropriate may include, but are not limited to, a requirement not to repeat or continue the prohibited conduct, counseling referral, education concerning discrimination issues, a reprimand, reassignment, or suspension. A finding may be cause for the separation of the Respondent from the University, in accordance with University procedures.
9.3.13.  After deliberation, the Hearing Panel shall deliver in writing to the Grievant, the Respondent, and the Administrator its findings of fact and the sanctions determined by the panel to be appropriate, if any.

10. Appeal to the Chancellor

Any party to a formal hearing may appeal the determination of the Hearing Panel to the Chancellor by delivering to the Chancellor normally within 10 working days of the determination, a written statement specifically stating how the determination of the Hearing Panel is in error. The Chancellor shall be authorized to request such information as he or she deems necessary to review the matter and to take such action as he or she deems reasonable to correct any error in the proceedings or in consideration of the evidence. The Chancellor shall be authorized to amend any finding or sanction made by the Hearing Panel, which does not in his or her judgment appropriately address the complaint. The Chancellor shall deliver his or her determination on appeal to the Grievant, the Respondent, the Chair of the Hearing Panel and the Administrator normally within 20 working days from the date of receipt. The University of Nebraska will provide no further appeal of the complaint.

11. Implementation of the Determination

Upon final determination of the complaint or appeal, whether by the Hearing Panel or the Chancellor, the Administrator shall inform the Respondent's superior(s) or line officer(s) of the determination and oversee the implementation of any sanction or other action, if any, required by the determination.