06:34:00 Harassment - Sexual, Racial and Other

Policy

I. Purpose

The purpose of this policy is to supplement TBR Guideline P-080 and Policies 6:02:00:00 and 5:01:02:00 relative to the orderly resolution of complaints of discrimination or harassment on the basis of race, color, religion, creed, ethnic or national origin, sex, sexual orientation/gender identity/expression, disability, age (as applicable), status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law. Fair and prompt consideration shall be given to all complaints in accordance with procedures set forth in this policy and TBR Guideline No. P-080. These established procedures may be utilized by any employee, applicant for employment or student who believes he or she has been subjected to discrimination or harassment, except that certain complaints meeting the definition of sexual misconduct and the criteria for filing a formal complaint must be handled in accordance with Board Policy 06:03:00 Sexual Misconduct and WSCC Policy 09:03:00 Sexual Misconduct. Former employees or students may file complaints concerning conduct which took place during the time of employment or enrollment provided the complaint is timely filed pursuant to Section III.B 2.of this Guideline, and the conduct has a reasonable connection to the institution. All employees shall become thoroughly familiar with the procedures set forth in this policy and the associated TBR directives. Supervisory employees must promptly report, to the appropriate institutional contact, any complaint or conduct which might constitute harassment, whether the information concerning a complaint is received formally or informally. Failure to do so may result in disciplinary action up to and including termination.

All faculty members, students and staff are subject to this policy. Any faculty member, student or staff found to have violated this policy by engaging in behavior constituting discrimination or harassment will be subject to disciplinary action which may include dismissal, expulsion or termination, or other appropriate sanction.

All faculty and staff members are required to cooperate with investigations of alleged discrimination or harassment. Failure to cooperate may result in disciplinary action up to and including termination. Students are also required to cooperate with these investigations; failure to do so may result in disciplinary action up to and including expulsion.

Walters State Community College employees are periodically required to complete an online training program on the prevention of discrimination and harassment. All employees, including faculty members, are expected to participate in such education and training. Further, all faculty members, students and staff are responsible for taking reasonable and necessary action to prevent and discourage all types of discrimination and harassment.

IMPORTANT: Other Available Complaint Procedures

An aggrieved individual may also have the ability to file complaints with external agencies such as the Equal Employment Opportunity Commission (EEOC), the Tennessee Human Rights Commission (THRC), the Office of Civil rights (OCR), and the courts. Please note that the deadlines for filing with external agencies or courts may be shorter than the deadline established for filing a complaint under this Policy. Examples of shorter deadlines include, but are not limited to 180 days to file a complaint under Title VI & Title IX, as well as 300 days to file a complaint under Title VII.

II. General Statement

It is the intent of Walters State Community College to fully comply with the applicable provisions of federal and state civil rights laws, including but not limited to, Executive Order 11246, as amended; the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act of 1990, as amended; the Vietnam Era Veterans Readjustment Act of 1974, as amended; the Equal Pay Act of 1963, as amended; Titles VI and VII of the Civil Rights Act of 1964, as amended; Title IX of the Educational Amendments of 1972, as amended; the Age Discrimination in Employment Act of 1967; the Age Discrimination Act of 1975; the Pregnancy Discrimination Act; the Genetic Information Nondiscrimination Act of 2008; and regulations promulgated pursuant thereto. Walters State Community College will promote equal opportunity for all persons without regard to race, color, religion, creed, ethnic or national origin, sex, sexual orientation, gender identity/expression, disability, age (as applicable), status as a covered veteran, genetic information, and any other category protected by federal or state civil rights law.

The institution affirms that they will not tolerate discrimination against any employee or applicant for employment because of race, color, religion, creed, ethnic or national origin, sex, sexual orientation, gender identity/expression, disability, age (as applicable), status as a covered veteran, or genetic information, nor will they tolerate harassment on the basis of these protected categories or any other category protected by federal or state civil rights law.

Similarly, the students shall not be subjected to discrimination or harassment by any member of the campus community, including fellow students, under any educational program and no student shall be discriminatorily excluded from participation nor denied the benefits of any educational program on the basis of race, color, religion, creed, ethnic or national origin, sex, sexual orientation, gender identity/expression, disability, age (as applicable), status as a covered veteran, genetic information, or any other category protected by federal or state civil rights law.

1. Discrimination may occur by:
   1. Treating members of a protected class less favorably because of their membership in that class. The protected groups are based upon race, color, religion, creed, ethnic or national origin, sex, sexual orientation/gender identity/expression, disability, age (as applicable) status as a covered veteran, genetic information, or any other category protected by federal or state civil rights law; or,
       
   2. Having a policy or practice that has a disproportionately adverse impact on protected class members.
2. Harassment
   1. Harassment based on a protected class
      Harassment is unwelcome conduct that is based on a person’s race, color, religion, creed, ethnic or national origin, sex, sexual orientation, gender identity/expression, disability, age (as applicable), status as a covered veteran, genetic information, or any other category protected by federal or state civil rights law, that
      • Adversely affects a term or condition of an individual’s employment, education, participation in an institution’s activities or living environment:
      • Has the purpose or effect of unreasonably interfering with an individual’s employment or academic performance or creating an intimidating, hostile, offensive or abusive environment of the individual; or
      • Is used as a basis for or a factor in decisions that tangibly affect that individual’s employment, education, participation in an institution’s activities or living environment.
        
        Examples of such conduct include, but are not limited to verbal or physical conduct relating to an individual’s national origin, race, surname, skin color or accent, offensive or derogatory jokes based on a protected category, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person’s religion or religious garments, offensive graffiti, cartoons or pictures, or offensive remarks about a person’s age. This also includes student on student harassment. Student on student harassment is unwelcome conduct directed toward a person on a basis prohibited by law that is so severe, pervasive, and objectively offensive that it bars the victim’s access to an educational opportunity or benefit.
        
        Not every act that might be offensive to an individual or a group will be considered harassment. Whether the alleged conduct constitutes harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of the conduct in the context within which the alleged incident occurs. Harassment does not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.

  Some sexual harassment can also meet the definition of sexual misconduct. Sexual misconduct for purposes of this       policy area includes dating violence, domestic violence, sexual assault, stalking, and Title IX sexual harassment as they are   defined in WSCC Policy 09:03:00.

2. Examples of sexual harassment
Examples of sexual harassment include, but are not limited to, the following:

• Refusing to hire, promote, or grant or deny certain privileges because of acceptance or rejection of sexual advances;
• Promising a work-related benefit or a grade in return for sexual favors;
• Suggestive or inappropriate communications, email, notes, letters, or other written materials displaying objects or pictures which are sexual in nature that would create hostile or offensive work or living environments;
• Sexual innuendoes, comments, and remarks about a person’s clothing, body or activities;
• Suggestive or insulting sounds;
• Whistling in a suggestive manner;
• Humor and jokes about sex that denigrate men or women;
• Sexual propositions, invitations, or pressure for sexual activity;
• Use in the classroom of sexual jokes, stories, remarks or images in no way or only marginally relevant to the subject matter of the class;
• Implied or overt sexual threats;
• Suggestive or obscene gestures;
• Patting, pinching, and other inappropriate touching;
• Unnecessary touching or brushing against the body;
• Attempted or actual kissing or fondling;
• Sexual violence; including rape, sexual assault, sexual battery, and sexual coercion:
• Suggestive or inappropriate acts, such as comments, innuendoes, or physical contact based on one’s actual or perceived sexual orientation, gender identity/expression.
  
  The examples listed above are not exclusive, but simply represent types of conduct that may constitute sexual harassment.
  
  Please note that incidents of sexual violence may constitute criminal acts and as such, investigation and processing by the criminal justice system, local police, campus security and crisis intervention centers may occur in addition to the process developed under this Policy. Complainant must be notified of his/her right to file a criminal complaint

C. Consensual Relationships
Intimate relationships between supervisors and their subordinates and between faculty members and students are strongly discouraged due to the inherent inequality of power in such situations. These relationships could lead to undue favoritism or the perception of undue favoritism, abuse of power, compromised judgment or impaired objectivity.

Engaging in a consensual relationship with a student over whom the faculty member has either grading, supervisory, or other evaluative authority (i.e., member of dissertation committee, thesis director, etc.) constitutes a conflict of interest. The faculty member must take steps to remove the conflict by assigning a different supervisor to the student; resigning from the student’s academic committees; or by terminating the relationship at least while the student is in his/her class. Likewise, it is a conflict of interest for a supervisor to engage in a consensual relationship with a subordinate over whom he or she has evaluative or supervisory authority. The supervisor must take action to resolve the conflict of interest by, for example, assigning another individual to supervise and/or evaluate the subordinate.

III. Procedures

1. General
   The following procedures are intended to protect the rights of the person who is alleged to be the victim of conduct that could violate this policy (hereinafter, “the Complainant”) as well as the person who has been alleged to be a perpetrator of conduct that could violate this policy (hereinafter “the Respondent”), as required by state and federal laws. Each charge must be properly investigated and, when warranted, appropriate disciplinary action taken against the individual charged. The Office of General Counsel shall always be consulted prior to investigation.
   
   In situations that require immediate action, because of safety or other concerns, the institution can take any disciplinary action which is appropriate, e.g., suspension with pay, pending the initiation of the investigation by the Executive Director of Human Resources. The Office of General Counsel should be contacted before any immediate action is taken.
   
   Each employee, applicant for employment and student shall be notified of the name, office, and telephone number of the designated Executive Director of Human Resources/Title IX Coordinator (or vice president for Student Services, for student matters) responsible for assuring compliance with this policy, TBR guidelines and policies, and federal law. Mr. Jarvis Jennings, Executive Director of Human Resources (phone number 423-585-6845) jarvis.jennings@ws.edu is the point of contact for employees. Dr. Angi Smith, the Vice President for Student Services, (phone number 423-585-2680) angi.smith@ws.edu is the point of contact for students.
2. Filing Complaints
   1. Any current or former student, applicant for employment, or current or former employee who believes he or she has been subjected to discrimination or harassment or who believes that he/she has observed discrimination or harassment taking place shall present the complaint to the designated EEO/AA, Student Services, Title VI or Title IX officer (hereinafter “the Investigator”) responsible for compliance with this Guideline.
   2. Complaints under Title VI must be brought within 180 days of the last incident of discrimination or harassment pursuant to TBR Guideline G-125. All other complaints must be brought within 365 days of the last incident of discrimination or harassment. Complaints brought after that time period will not be pursued absent extraordinary circumstances. The determination of whether the complaint was timely or whether extraordinary circumstances exist to extend the complaint period must be made in conjunction with Legal Counsel.
       
   3. Every attempt will be made to get the Complainant to provide the complaint in writing. The complaint shall include the circumstances giving rise to the complaint, the dates of the alleged occurrences, and names of witnesses, if any. The complaint shall be signed by the Complainant. However, when the Complainant chooses not to provide or sign a written complaint, the matter will still be investigated and appropriate action taken. Complaints made anonymously or by a third party must also be investigated to the extent possible.
       
   4. If the complaint does not rise to the level of discrimination or harassment, the Investigator may dismiss the complaint without further investigation after consultation with Legal Counsel. The Complainant should be informed of other available processes such as the employee grievance/complaint process, or a student non-academic complaint process.
   5. Unless a policy indicates that it does not apply outside the U.S., institutional policies regarding student conduct apply to students registered for credit regardless of their attendance at one of the Tennessee campuses or while participating in international opportunities.
       
3. Investigation
   1. Legal Counsel shall be notified of the complaint, whether written or verbal, as soon as possible after it is brought to the attention of the Investigator and the investigation will be under the direction of Legal Counsel. All investigatory notes and documents shall be attorney work product. The Investigator shall notify the President that an investigation is being initiated when the allegation of harassment is against the Executive Director of Human Resources or vice president for Student Services, the president/director will identify an individual who has been trained in investigating such complaints to investigate the complaint and carry out the responsibilities assigned pursuant to TBR Guideline P-080. When the allegation of harassment is against the president of the institution, the Executive Director of Human Resources shall notify the Office of the General Counsel who will assign an investigator who will make his/her report to the Chancellor.
   2. When the Respondent is a student, the Student Services Office will investigate the complaint in compliance with the procedures outlined in this Guideline. If a finding of violation is made, any resulting disciplinary action will be undertaken in compliance with the institution’s  student disciplinary procedures.
   3. When a student is involved as the Complainant, the Respondent or an individual interviewed, all documentation referring to that student shall be subject to the provisions and protections of the Family Educational Records and Privacy Act (FERPA) and Tennessee Code Annotated Section 10-7-504(a) (4) which requires that certain student disciplinary records are subject to disclosure pursuant to a public records request.
   4. The Investigator shall notify, in writing, the Respondent within five working days of receipt of the complaint. The Respondent may respond in writing to the complaint within five working days following the date of receipt of the investigator’s notification.
       
   5. If either the Complainant or the Respondent is a student. The Investigator should communicate the prohibition against disclosure of personally identifiable information with regard to the student, based on FERPA.
       
   6. The Complainant, the Respondent and all individuals interviewed shall be notified that any retaliation engaged in connection with the complaint or its investigation is strictly prohibited regardless of the outcome of the investigation and may, in itself, be grounds for disciplinary action.
       
   7. At any time during the course of the investigation, the Investigator shall meet with both parties for the purpose of resolving the charge informally. Either party has the right to end informal processes at any time. If informal resolution is successful in resolving the complaint, a report of such, having first been reviewed and approved by legal counsel, shall be submitted to the president.
       
   8. If informal resolution is unsuccessful, the Investigator shall draft a report summarizing the investigation which shall be sent to legal counsel for review. Each report shall outline the basis of the complaint, including the dates of the alleged occurrences, the response of the Respondent, the findings of the Investigator, whether there were any attempts to resolve the charge informally, a determination of whether there was a violation of TBR Guideline P-080, and recommendations regarding disposition of the complaint.
       
   9. After review and approval by legal counsel, the report shall be submitted to the president within sixty (60) calendar days following receipt of the complaint, absent cause for extending the investigation timeline. No working papers, statements, etc. generated in the investigation should be attached to the report. In situations where more time is needed to complete the investigation, for reasons such as difficulty in locating a necessary witness, or complexity of the complaint, additional time may be taken, but only following notice to Legal Counsel and written notice to both the Complainant and the Respondent. If, after investigation, there is insufficient evidence to corroborate the complaint or, in any situation in which the Complainant refuses to cooperate in the investigation, it may be appropriate to discuss the complaint with the Respondent, informing him or her that he or she is not being accused of a P-080 violation, but that the conduct alleged, had it been substantiated, could be found to violate this Policy. Any investigation and subsequent discussion should be documented and a report submitted as set forth in this procedure. It should also be noted that conduct which does not rise to the level of legally actionable discrimination or harassment may, nevertheless, provide a basis for disciplinary action against the Respondent.
       
   10. The president shall review the Investigator’s report, and shall make a final written determination as to whether a violation has occurred and, what the appropriate resolution should be. After the president has made this determination, the Investigator shall, absent unusual circumstances and after consultation with Legal Counsel, provide both the Complainant and the Respondent with a copy of the determination, along with a copy of the Investigator’s report.
        
   11. If the investigation reveals evidence that a violation of the Policy has occurred, the President must take immediate and appropriate corrective action. Such action may include meeting with the Respondent and/or the Complainant and attempting to resolve the problem by agreement, except in the case of sexual assault. Appropriate steps must be taken to ensure that the discrimination or harassment will not reoccur.
        
   12. After completion of the investigation and any subsequent disciplinary proceedings, all documentation shall be forwarded to Legal Counsel. However, copies of the President’s determination, the Investigator’s report, the complaint (if it concerns an employee) and documentation of any disciplinary action taken against the Respondent should be placed in a file maintained on campus. This file shall be maintained in a location designated by the President. If such action was taken, copies of documentation establishing disciplinary action taken against the Respondent, whether an employee or student, shall also be maintained in the Respondent’s personnel or student record, as appropriate.
       
       Some documents involved in a P-080 matter may be subject to the Public Records Act and thus open to public inspection. Other documents may be protected under FERPA, the attorney/client privilege, or attorney work product and would not be releasable. If a Public Records request is received, Legal Counsel must be consulted prior to the release of any documents.
        
   13. A complaint found to have been intentionally dishonest or maliciously made will subject the Complainant to appropriate disciplinary action.
4. Appeal of Decision
   
   Walters State Community College must afford the Complainant and Respondent an opportunity to appeal the President’s decision concerning Respondent’s responsibility for the alleged conduct. The appeal process shall consist of an opportunity for the parties to provide information to the institution’s attention that would change the decision. The appeal process will not be a de novo review of the decision, and the parties will not be allowed to present their appeals in person to the President unless the President determines, in his/her sole discretion, to allow an in-person appeal.
   1. The institution shall provide written notice of the appeal process to the parties at the time that the parties are advised of the outcome of the investigation.
       
   2. Either party may send a written appeal to the President within ten (10) working days, absent good cause, of receipt of the President’s determination. The appealing party(ies) must explain why he or she believes the factual information was incomplete, the analysis of the facts was incorrect, and/or the appropriate legal standard was not applied, and how this would change the determination in the case. Failure to do so may result in a denial of the appeal.
       
   3. The President will issue a written response to the appeal as promptly as possible. This decision will constitute the institution’s final decision with respect to President’s determination.

If the President’s/Director’s decision includes disciplinary action, the procedures for implementing the decision shall be determined by the applicable policies relating to discipline (e.g., employee grievance/complaint procedure, student disciplinary policies, and academic affairs policies).

E. Recordkeeping

    1. The Title IX Coordinator shall retain for a period of seven (7) years the following documents:

        a. For each sexual harassment investigation, whether pursuant to Board Policy 06:03:00:00, Sexual Misconduct; TBR Guideline P-080; or otherwise:

             1. the investigation file, which includes any record an institution creates to investigate an allegation, regardless of later dismissal or other resolution. as well as all information required by applicable policy and guidelines;

             2. any determination regarding responsibility;

             3. any audio or audiovisual recording or transcript;

             4. any disciplinary action;

             5. any remedies provided to restore or preserve equal access to an education program or activity;

             6. any appeal and result; and

             7. any informal resolution and result.

   2. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process about their obligations under the Sexual Misconduct Policy, which shall be available on the institution’s website.

   3. For each report, either formal or informal, of sexual misconduct as defined by the Sexual Misconduct Policy, where no investigation was conducted, documentation of:

       a. Records of any actions taken in response, including any interim or supportive measures;

       b. Documentation of the basis for the institution’s conclusion that its resposne was not deliberately indifferent;

       c. Any measures taken to restore or preserve equal access to an institutional education program or activity; and

       d. If an institution does not provide a complainant with supportive measures, documentation as to why the institution’s response was not clearly unreasonable in light of known circumstances (e.g. the complainant did not wish to receive supportive measures or refused to discuss them with the Title IX Coordinator.

10/95; 03/06; 12/07; 09/10; 08/13; 04/18; 08/20; 08/22
Additional details concerning this policy may be found in TBR Guideline P-080.