Handbook of Operating Procedures > Series 200 General Policies and Procedures > 2.4.1 Nondiscrimination

2.4.1 Nondiscrimination

A. Purpose

The University prohibits all forms of discrimination, regardless of whether it occurs on or off University property, if it potentially affects the alleged victim’s education or employment (with the exceptions addressed in HOP 2.4.3: Sexual Misconduct) and shall maintain a process for reporting any violations of this Policy to comply with Regents’ Rule 10701: Policy Against Discrimination. (See also HOP 4.15.6: Equal Employment Opportunity.)

B. Authority/Persons Affected

This Policy applies to all Employees (except Employees subject to another approved complaint procedure), students, visitors and applicants for employment or admission. 

C. Definitions

1. Complainant: Individual lodging a Complaint.
2. Complaint:
   1. The essential facts constituting an alleged violation of a Regents’ Rule, University regulation, or administrative rule. These include issues concerning the following:
      1. wages, hours of work, working conditions, performance evaluations, merit raises, job assignments, and reprimands;
      2. the interpretation or application of a rule, regulation, or policy;
      3. unlawful discrimination on any basis; or
      4. allegations that the termination of a probationary or temporary Employee, or an hourly or per diem Employee who works on an as-needed basis, was for an unlawfully discriminatory reason.
   2. Complaint for Informal Resolution: Reported issues will be considered on an informal basis in order to allow prompt explanation or correction of the subject of the Complaint.
   3. Formal Complaint: Reported issues will be investigated, and there will be a recommendation for resolution.
3. Discrimination: Conduct directed at a specific individual or a group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education on account of race, color, gender, sex, sexual orientation, pregnancy, genetic information, gender identity, gender expression, religion, national origin, age, disability, citizenship, and/or veteran status. This term includes harassment.
4. Evidence: Any document, tangible item, or testimony offered or obtained during a misconduct proceeding that tends to prove or disprove the existence of an alleged fact.
5. FERPA: Family Educational Rights and Privacy Act
6. Harassment: When used as a form of discrimination, is verbal or physical conduct that is directed at an individual or group because of race, color, gender, sex, sexual orientation, pregnancy, genetic information, gender identity, gender expression, religion, national origin, age, disability, citizenship, and/or veteran status when such conduct is sufficiently severe, pervasive or persistent so as to substantially interfere with an individual’s or group’s academic or work performance; or of creating a hostile academic or work environment. Constitutionally protected expression cannot be considered harassment under this Policy.
7. Preponderance of the evidence: Proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.
8. Respondent: Individual who is the subject of a Complaint.
9. Retaliation: Any adverse action threatened or taken against an individual because the individual has filed, supported, provided information in connection with a Complaint for Informal Resolution or Formal Complaint of discrimination or engaged in other legal protected activities. Retaliation includes but is not limited to intimidation, threats or harassment against any Complainant, witness or third party. 

D. Policy

D.1. Reporting

1. Reporting encouraged.
   1. Subject of violation. The University encourages any person who believes that they have been subjected to prohibited discrimination to immediately file a Complaint for Informal Resolution or a Formal Complaint with the appropriate office.
   2. Witness to violation. Any student, Employee, and/or visitor who witnesses or is aware of a suspected incident of prohibited discrimination is strongly encouraged to immediately report the incident to either of the offices listed below.
2. Reporting required. Every supervisor, administrator and University official is responsible for promptly reporting incidents of prohibited discrimination that comes to their attention.
3. Reporting options. Violations can be reported using the Complaint for Informal Resolution or Formal Complaint procedures.
4. Responsible offices. Incidences of prohibited discrimination should be reported to the following offices:

For Employees or applicants for employment:

Office of Human Resources 
3900 University Blvd. STE 108
Tyler, TX 75799
(903) 566-7234

humanresources@uttyler.edu

For students:

Office of the Dean of Students 
3900 University Blvd. UC 3301
Tyler, TX 75799
(903) 566-6291

deanofstudents@uttyler.edu

 

D.2. Filing Options

1. When to file a Complaint for Informal Resolution.
   1. Not serious. A Complaint for Informal Resolution may be the appropriate option when the conduct involved is NOT of a serious or repetitive nature and disciplinary action is NOT required to remedy the situation.
   2. No investigation. No formal investigation is typically involved in the Complaint for Informal Resolution process; however, the University reserves the right to take more formal action, including disciplinary action.
2. When to file a Formal Complaint.
   1. More serious. A Formal Complaint should be filed when an individual has been the subject of a more serious violation. Disciplinary action may be warranted.
   2. Investigation. An investigation of the issue will be conducted, and a determination of appropriate action will be made.
3. Conditions for filing. A Complaint for Informal Resolution and a Formal Complaint are NOT mutually exclusive, and neither is required as a pre-condition for choosing the other. However, they may NOT be used simultaneously.

 

   D.3. Complaint for Informal Resolution

1. Not required. It is NOT necessary that this option be used. Anyone who believes that they have been subject to a Policy violation may immediately file a Formal Complaint.
2. Time frame for completion. Complaints for Informal Resolution shall be addressed as soon as possible after they are filed, and they shall be completed within sixty (60) calendar days from receipt of the Complaint.
3. Assistance with resolution.
   1. Informal process. A Complaint for Informal Resolution is an informal process where the Complainant is assisted with attempting to resolve the violation.
   2. Types of assistance. Such assistance may include:
      1. strategies for how the individual can effectively inform the offending party that their behavior is unwelcome and/or offensive and should cease;
      2. action by an appropriate University official to stop the unwelcome and/or offensive conduct;
      3. modification of the situation in which the offensive conduct occurred; or
      4. mediation between the parties.
4. Investigation.
   1. If appropriate. An investigation may or may not be instituted on the basis of a Complaint, as appropriate.
   2. Investigator’s statement. The investigator should prepare a written statement of what they understand the Complaint to be and seek to obtain verification of the Complaint from the Complainant.

 

D.4. Title IX Compliance

This Formal Complaint procedure constitutes the process for grievances alleging unlawful gender discrimination as required under Title IX of the Education Amendments of 1972. Refer to HOP 6.38: Sexual Misconduct for complaint and grievance procedures specific to Title IX violations. 

D.5. Formal Complaint

1. Format of statement. The Complainant should submit a written and signed statement setting out the details of the conduct that is the subject of the Formal Complaint, and which shall include:
   1. the Complainant’s name, signature, and contact information;
   2. the name of the person directly responsible for the alleged violation(s) (i.e., the Respondent);
   3. a detailed description of the conduct or event that is the basis of the alleged violation;
   4. the date(s) and location(s) of the occurrence(s);
   5. the names of any witnesses to the occurrence(s);
   6. the resolution sought; and
   7. any document or information that is relevant to the Formal Complaint.
2. Source of Formal Complaint.
   1. Employee or applicant. A Formal Complaint filed by an Employee or applicant for employment shall be investigated by OHR (except for Title IX violations, which will be investigated by the Title IX Coordinator).
   2. Student. A Formal Complaint filed by a student shall be investigated by the Office of the Dean of Students (except for Title IX violations, which will be investigated by the Title IX Coordinator).
3. Time frame for filing.
   1. General. Formal Complaint should be filed as soon as possible after the violation but no later than thirty (30) calendar days after the event occurred.
   2. Exception. If the Complainant is a currently enrolled student and the last day for filing a Formal Complaint falls prior to the end of the academic semester in which the alleged violation occurred, then the Formal Complaint may be filed within thirty (30) calendar days after the end of that semester.

 

D.6. Formal Complaint Action

Within ten (10) business days of receipt of a Formal Complaint, the investigator may either dismiss the Formal Complaint or authorize an investigation, as appropriate.

 

D.7. Formal Complaint Dismissal

1. Reasons. A Formal Complaint may be dismissed if the facts alleged in the Formal Complaint, even if taken as true, fall into any of the following categories:
   1. No prohibited action. The action does not constitute prohibited harassment, discrimination or retaliation.
   2. No facts. There is a failure to allege any facts that suggest prohibited harassment or discrimination occurred.
   3. Remedy achieved or rejected. The appropriate resolution or remedy has already been achieved or has been offered and rejected. 
2. Dismissal letter. The appropriate office will send the Complainant a dismissal letter with:
   1. the reason for the dismissal; and
   2. notification that within fifteen (15) business days of the dismissal letter they may file a written appeal to the administrator named in the letter.

 

D.8. Formal Complaint Investigations

1. Responsibilities. Depending on the nature of the Complaint, the appropriate office listed under D.1.4. will be responsible for investigating Formal Complaints. If the Complaint is not in writing, the investigator should prepare a statement of what they understand the Complaint to be and seek to obtain verification of the Complaint from the Complainant.
2. Preservation of evidence. When appropriate, steps should be taken to prevent the destruction of documents or other evidence that may be necessary for further investigation by other parties.
3. Time frame for review. Within ten (10) workdays of receipt of a Formal Complaint, the investigator, as appropriate, may either dismiss the Formal Complaint or authorize an investigation of the Formal Complaint.
4. Dismissal of a Formal Complaint.

1. Reasons for dismissal. A Formal Complaint may be dismissed if:
   1. the facts alleged in the Complaint, even if taken as true, do not constitute prohibited harassment, discrimination or retaliation;
   2. the Formal Complaint fails to allege any facts that suggest prohibited harassment or discrimination occurred; or
   3. the appropriate resolution or remedy has already been achieved or has been offered and rejected.
   1. an explanation of the reason for the dismissal; and
   2. information that the Complainant may, within fifteen (15) workdays of the notification, appeal the decision not to proceed with a Formal Complaint investigation to the appropriate administrator named in the letter.
2. Notification letter. If it is determined that a Formal Complaint will not be investigated, the appropriate office will contact the Complainant and/or send the Complainant a notification letter. The notification letter will contain:
3. Written appeal. The written appeal filed by the Complainant must explain why the decision to dismiss the Formal Complaint was in error.
4. Response to appeal. The administrator named in the notification letter will respond within twenty (20) workdays of receipt of the appeal. The decision is final.
5. Dismissal overturned. If the decision to dismiss is overturned, the Formal Complaint will be sent back to the appropriate office for investigation in accordance with the procedures outlined below.

5.   Investigation Procedures.

1. Respondent notified. The Respondent shall be provided with a copy of the Formal Complaint and will be allowed ten (10) calendar days from the date of receipt to provide a written response. 
2. Evidence.

1. Acceptable evidence. The Complainant and the Respondent each may present any documents or information that is believed to be relevant to the Formal Complaint as evidence.
2. Gathering the evidence. Neither the Complainant nor the Respondent may attend the gathering of evidence.

c.     Witnesses.

1. Interviews. Any persons thought to have information relevant to the Formal Complaint will be interviewed and such interviews will be appropriately documented.
2. Recommendations. Both the Complainant and Respondent each may recommend witnesses for interview and suggest questions that should be asked.
3. Attending interviews. The Complainant and/or the Respondent may NOT attend investigation interviews of witnesses.

6.    Time frame for investigation.

a.    ASAP. The investigation of a Formal Complaint will be concluded as soon as possible after receipt of the Formal Complaint.

b.    Over 90 days. In investigations exceeding ninety (90) business days, a justification for the delay will be presented to and reviewed by the appropriate administrator overseeing the investigative office.

c.     Update. The Complainant, Respondent, and appropriate supervisor will be provided with an update on the progress of the investigation and issuance of the report. 

7.    Investigation report contents. Upon completion of the investigation, a written investigation report will be issued. The report shall include:

a.    an evaluation of whether a violation of this Policy occurred;

b.    an analysis of the facts discovered during the investigation;

c.     factual conclusions (which shall be based on preponderance of the evidence);

d.    any relevant evidence; and

e.    recommended disciplinary action if it is determined that a violation occurred.

8.   Copies of investigation report.

a.   Recipients. A copy of the investigation report will be sent to the Complainant, the Respondent, and the appropriate vice president or dean who has authority over the Respondent.

b. Comment period. The Complainant and Respondent have ten (10) business days from the date of the investigation report to submit written comments regarding the report to the appropriate vice president or dean.

c.  Information redacted. For Formal Complaints involving a student Respondent, in accordance with FERPA and the Texas Education Code, Section 51.917, the Complainant and the Respondent each will receive a copy of the investigation report in which all student identifiable information has been redacted. 

 

D.9. Formal Complaint Determination

Within ten (10) business days of receiving written comments submitted by the Complainant or Respondent (if any), the appropriate vice president or dean who has authority over the Respondent will decide one of the following: 

1.    Further investigation. Further investigation into the Formal Complaint will be requested.

2.    Violations. Finding that this Policy was violated. 

3.    Dismissal. Dismissal of the Formal Complaint if the results of the completed investigation are inconclusive OR there is not a preponderance of the evidence.

 

D.10. Determination of Policy Violations

1. Basis of determination. A decision that this Policy was violated shall be made upon the investigation report and the comments (if any) submitted by the Complainant or Respondent and shall be based on the totality of circumstances surrounding the violation, including but not limited to:
   1. the context of that conduct;
   2. its severity;
   3. its frequency; and/or
   4. whether it was physically threatening, humiliating, or simply offensive in nature.
2. Reasonable person standard. Facts will be considered based on what is reasonable to persons of ordinary sensitivity and not on the particular sensitivity or reaction of an individual.

 

D.11. Disciplinary Action

1. Employee disciplinary action.
   1. Implementation. If the appropriate vice president or dean who has authority over the Respondent determines that this Policy was violated, they will refer the matter for disciplinary action in accordance with the University’s applicable disciplinary procedures. Implementation of disciplinary action against faculty and staff will be handled in accordance with the University’s Policy for discipline and dismissal of faculty and Employees.
   2. Types of disciplinary actions. Disciplinary actions can include, but are not limited to written reprimands, the imposition of conditions, reassignment, suspension, and/or dismissal.
2. Student disciplinary action.
   1. Implementation. Implementation of disciplinary action against students will be referred to the Office of Student Conduct for processing in accordance with the Student Code of Conduct.
   2. Types of disciplinary actions. Disciplinary actions against students can include probation, suspension, or expulsion from the University.

 

D.12. Notification of Final Decision

1. Employee notification. The Complainant and the Respondent shall be informed in writing of the appropriate vice president’s or dean’s final decision, and each shall be provided with a copy of the final statement of findings.
2. Student notification. The Complainant and the Respondent shall be informed in writing of the appropriate vice president’s or dean’s final decision, and each shall be provided with a copy of the final statement of findings.
3. Information redacted. For Formal Complaints involving a student Respondent, in accordance with FERPA and the Texas Education Code, Section 51.917, the Complainant and the Respondent each will receive a copy of the final decision in which all student identifiable information has been redacted.

 

D.13. Provisions Applicable to All Formal Complaints

1. Assistance.
   1. Student participant. During the Formal Complaint process, a student who is a Complainant, witness, or Respondent will be allowed to have one uninvolved person of their choice, which may be an attorney, to accompany them, unless doing so would violate FERPA or otherwise be required under Title XI or other Federal law. This uninvolved person may NOT actively participate in the meeting or interview. This individual must NOT have any personal knowledge regarding the facts surrounding the complaint.
   2. Employee participant. During the Formal Complaint process, an Employee who is a Complainant, witness, or Respondent  will be allowed to have one uninvolved person of their choice to accompany them, who may NOT be an attorney, unless otherwise required by Title IX or other federal law. This uninvolved person may NOT actively participate in the meeting or interview. This individual must NOT have any personal knowledge regarding the facts surrounding the complaint.
   3. No other parties. During the Formal Complaint process, a Complainant, Respondent. or witness will NOT be allowed to be accompanied by any other party, including an attorney, unless otherwise required by Title IX.
2. Retaliation.
   1. No retaliation. No Employee will be penalized or disciplined or face retaliation for pursuing a Formal Complaint, or for aiding another Employee in the presentation of a Formal Complaint, provided such action is taken in good faith.
   2. Penalties. A student or Employee who retaliates in any way against an individual who has brought a Formal Complaint pursuant to this Policy or an individual who has participated in an investigation of such a Formal Complaint is subject to disciplinary action, including dismissal.
3. Documentation. The University shall document Formal Complaints and their resolution. The investigative office, as appropriate, shall retain such documentation. The documentation will be retained in accordance with state and federal records laws and the University Policy.
4. Confidentiality. To the extent permitted by law, Formal Complaints and information received during the investigation will remain confidential. Relevant information will be provided only to those persons who need to know in order to achieve a timely resolution of the Formal Complaint.
5. Anonymity. Where the individual’s desire to maintain anonymity constrains attempts at establishing facts and eliminating the potential violation, the University will attempt to find the appropriate balance between the individual’s desire for privacy and confidentiality with the responsibility of the University to provide an environment free of Policy violations.
6. False Formal Complaints/statements. Any person who knowingly and intentionally files a false Formal Complaint under this Policy, or knowingly and intentionally makes false statements in the course of an investigation, is subject to disciplinary action up to and including dismissal from the University.
7. Monitoring. Periodic monitoring of Formal Complaint resolutions will be conducted by OHR to ensure that discriminatory practices are no longer a factor in the workplace or academic environment, and that no retaliation for filing the Formal Complaint has taken place.
8. Recording. No party may make an audio or video recording of any meetings, whether virtual or in person, throughout this process. Recording devices are not allowed during EOS/Title IX Office interviews or meetings. The EOS/Title IX Office personnel will take notes during all interviews with parties and witnesses.

 

D.14. Dissemination of Policy

1. Availability. The Policy will be made available to all Employees and students.
2. Compliance training. Regular compliance training will provide guidance to Employees about the University’s Nondiscrimination Policy, will include information about Formal Complaint procedures, and will refer individuals to designated offices or officials for additional information.
3. Notices. Periodic notices will be sent to Employees and students about the University’s Nondiscrimination Policy. The notice will specify the right to file a Complaint for Informal Resolution or a Formal Complaint under this Policy and will refer individuals to designated offices or officials for additional information.
4. Education.
   1. Discrimination training.  In accordance with Texas Labor Code, Chapter 21: Employment Discrimination, all Employees are required to complete discrimination training no later than the 30th calendar day after the date the Employee is hired and shall complete supplemental training every two (2) years. The electronic training record is the acknowledgement and verification that the training has been conducted.
   2. Preventive education. Preventive education and training programs will be provided to Employees and students.
5. Nondiscriminatory environment.
   1. Responsibilities of administration. Each vice president, dean, or designee will periodically assess their area of authority to make sure a climate is maintained that promotes an educational and working environment that provides equal opportunity to all members of the University community.
   2. Corrective action. If problems are noted or if the circumstances surrounding a Formal Complaint are not remedied, OHR shall be notified immediately for assistance in taking corrective action. 

E. Reference Sources and Authority

• U. S. Constitution, First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition
• Code of Federal Regulations, Title 34, Part 106: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Title IX of the Education Amendments of 1972)
• Rehabilitation Act of 1973, Section 504
• Title IX of the Education Amendments of 1972
• United States Code, Title 20, Section 1232: Family Educational Rights and Privacy Act (FERPA)
• United States Code, Title 38, Chapter 43: Employment and Reemployment Rights of Members of the Uniformed Services
• United States Code, Title 42, Section 2000: Title VI of the Civil Rights Act of 1964
• United States Code, Title 42, Sections 6101-6107: Age Discrimination Act of 1975
• Texas Labor Code, Chapter 21: Employment Discrimination
• Texas Education Code, Section 51.917: Faculty Members; Use of English
• Texas Education Code, Section 51.3525: Senate Bill 17
• UTS 197: Compliance with State Law Regarding Diversity, Equity, and Inclusion in Institutions of Higher Education
• Regents’ Rule 10701: Compliance with Laws Related to Race, Color, National Origin, Ethnicity, Religion, Sex, Age, Veteran Status, or Disability
• Regents’ Rule 30107: Veteran's Employment Preferences

F. Review Responsibilities and Dates

The Division Head for this Policy is the Senior Vice President of OHR, and this Policy shall be reviewed every three (3) years or sooner, if necessary, by the Division Head or their designee.