DISCRIMINATION AND SEXUAL HARASSMENT POLICY

Editor's Note: The following is a revised statement of Washington State University's Discrimination and Sexual Harassment Policy, including the Discrimination/Sexual Harassment Complaint Procedures. Revisions address recent developments in the federal courts regarding discrimination, including sexual harassment. The policy and complaint procedures have been in effect since May 1987.

The purpose of this policy is to set forth Washington State University's commitment to maintaining a university environment free from all forms of discrimination, including sexual harassment. This commitment applies to all levels and areas of University operations and programs, to students, faculty, staff, and all other personnel. The policy addresses recruitment, admissions, hiring, training, discipline, promotion, demotion, transfer, layoff or termination, rates of pay or other forms of compensation, and any other employment or education conditions. The University is cognizant of both its moral and legal obligations to ensure that all employees and students are provided equitable opportunities to realize their goals and to function effectively within the University environment.

The kinds of discrimination prohibited by WSU policy are those which occur on the basis of race, sex, religion, age, color, creed, national or ethnic origin; physical, mental or sensory disability; marital status, sexual orientation, and status as a Vietnam-era or disabled veteran. Decisions affecting an individual cannot be made on the basis of one of these factors. For example, certain actions cannot be taken on account of a person's sex, or because of a person's age, or because of a person's national origin. Decisions should be made on the basis of neutral and objective criteria by which an individual may be evaluated in terms of his or her accomplishments without regard to irrelevant factors such as sex or race.

WSU's discrimination policy explicitly incorporates and prohibits sexual harassment as a form of unlawful sex discrimination. Sexual harassment is defined as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or education, (2) submission to or rejection of such conduct by an individual is used as the basis for employment or educational decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work or educational performance or creating an intimidating, hostile or offensive environment. [29 C.F.R. §1604.11a (1988)]

When the University becomes aware of incidents of sexual harassment, it is bound by state and federal law to take corrective steps to terminate the harassment.

Sexual harassment encompasses any sexual attention that is unwanted. It includes both verbal and physical conduct. Examples of Sexual Harassment prohibited by this policy include, but are not limited to:

1. Physical assault;
2. Direct or implied threats that submission to sexual advances will be a condition of employment, work status, promotion, grades, or letters of recommendation;
3. Direct propositions of a sexual nature;
4. Subtle pressure for sexual activity;
5. A pattern of conduct that discomforts or humiliates the person at whom the conduct is directed which includes one or more of the following: (1) comments of a sexual nature; (2) sexually explicit statements, questions, jokes, or anecdotes; (3) unnecessary touching, patting, hugging, kissing, or brushing against a person's body; (4) remarks of a sexual nature about a person's clothing or body; or (5) remarks about sexual activity or speculations about previous sexual experience;
6. Persistent, unwanted attempts to change a professional relationship to an amorous one.

Amorous relationships that might be appropriate in other circumstances are not appropriate, whether consensual or otherwise, when they occur between a teacher or officer of the University and a student or employee for whom he or she has a professional supervisory responsibility. Even where negative consequences to the participants do not result, such romantic liaisons create an environment charged with potential conflict of interest and possible use of academic or supervisory leverage to maintain or promote the relationship. Amorous relationships that the parties may view as mutual may still raise questions of favoritism as well as of an exploitative abuse of trust and power. This is particularly true when a student is enrolled in a course being taught by the involved faculty member or teaching assistant, or when the faculty member and students are in the same academic unit or in units that are academically allied.

University policy requires that all employees maintain professional relationships with students and supervisees. It is the responsibility of instructors and supervisors to make explicit arrangements for their withdrawal from participation in evaluative decisions that may reward or penalize a student or employee with whom the instructor or supervisor has or has had an amorous relationship.

The University vigorously enforces its prohibitions against unlawful discrimination, including sexual harassment, and encourages those who feel aggrieved to seek assistance to rectify problems. Its internal grievance procedures are utilized to investigate and remedy violations. While observing the principles of due process, determinations of policy violations will lead to the application of disciplinary sanctions, including warning, censure, suspension, dismissal, or, in some situations, summary suspension.

In support of this discrimination policy, the University promotes preventive educational measures to create greater awareness of unlawful discriminatory practices, including sexual harassment, among faculty, staff, and students. Administrative officers, deans, directors, department chairs, and supervisors are responsible for making certain that all employees are informed fully of the types of conduct that may be classified as discriminatory, including sexual harassment, and that such conduct is prohibited. Training is available from the Center for Human Rights office.

Any employee or student of WSU who believes that he or she has been subjected to unlawful discrimination, including sexual harassment, or who believes he or she has been charged wrongfully with a complaint, may utilize the procedures described in the following sections on Discrimination/Sexual Harassment Complaint Procedures.

No one shall be penalized or retaliated against in any way by a member of the University community for initiation or participation in a complaint procedure.

In addition to administrators and supervisors, the following University officials also are available to discuss any concerns or complaints about discrimination, including sexual harassment, or to provide advice on utilizing University complaint procedures:

Cooperative Extension faculty and staff are encouraged to contact their EEO Counselors. See the Administrative Handbook for listing.

DISCRIMINATION/SEXUAL HARASSMENT COMPLAINT PROCEDURES

The purpose of the Discrimination/Sexual Harassment Complaint Procedure is to implement the University's Discrimination Policy. These procedures provide for the resolution of complaints alleging violations of this policy. They ensure that, according to principles of due process, a fair and impartial review of each complaint will be conducted in order to establish whether reasonable cause exists for determining that an unlawful practice of discrimination has occurred.

The complaint procedures detailed below include provisions for resolution by department chairs or deans, for an informal investigation and resolution process coordinated by the Center for Human Rights or the Ombudsperson's Office, or for a formal complaint investigation process managed by the Center for Human Rights. The complaint procedures also provide for special resources and operational guidelines to accommodate the unique circumstances surrounding sexual harassment complaints and investigations. Appeal procedures appropriate for faculty, staff, and students are also incorporated.

Throughout this document, the term "complainant" refers to any employee or student who files a complaint against an employee, student, or department of WSU alleging a violation of the University's Discrimination/Sexual Harassment Policy. The term "respondent" refers to a person (or persons) accused of the policy violation as charged by the complainant. A "Definition of Terms" can be found at the end of this document.

It is the direct responsibility of all administrators, deans, directors, chairs, and supervisors to:

1. Ensure that all employees, permanent or temporary, are made aware of this policy, the types of conduct prohibited by it, and the avenues available for resolution of violations;
2. Monitor their respective working and learning areas for violations of this policy;
3. Listen to charges of policy violations brought to their attention by students, faculty, or staff;
4. Either intercede for complaint resolution or refer the complainant and/or respondent to the Ombudsperson's Office or the Center for Human Rights for further assistance, advice, or investigation;
5. Report immediately to the Center for Human Rights all complaints of discrimination, including sexual harassment, whether resolved or referred to other University resources, including complaints where no action was taken; and
6. Prevent retaliation for the use of these University complaint procedures.

These complaint procedures are available to any person who, at the time the alleged offense occurred, was employed by, was enrolled as a student at, or received services from Washington State University.

Individuals who wish to initiate a complaint may choose to do so in one of the following ways:

• Submit the complaint to the appropriate administrator, dean, director, chair or supervisor (outlined in Section A);
• Initiate the complaint through the Informal Complaint Resolution Process (outlined in Section B); or
• File a formal complaint in accordance with the provisions of the Formal Complaint Investigation Process (outlined in Section C).

Individuals who have a complaint are encouraged to discuss the matter with the appropriate administrator, dean, director, chair, or supervisor if feasible; the complaint may be resolved by mutual consent at this point.

It is the direct responsibility of all administrators, deans, directors, chairs, and supervisors to listen to charges of policy violations; either to intercede for complaint resolution or to refer the complainant and/or respondent to the Ombudsperson's Office or to the Center for Human Rights for further advice and assistance; and to ensure that retaliation for the use of any University complaint procedures does not occur.

SECTION B.

The Informal Complaint Resolution Process will be conducted by the Ombudsperson's office or the Center for Human Rights. These operational guidelines will govern all informal complaint investigation procedures; additional special provisions for handling sexual harassment complaints are set forth in the following section:

1. Informal complaints may be submitted either orally or in writing.
2. While every effort will be made to maintain confidentiality for the complainant and respondent, the University must act to eliminate any unlawful discrimination.
3. Representatives from the above mentioned offices will act as facilitators to mediate and resolve complaints. Activities undertaken toward this end may include fact gathering through interviews and discussions with the complainant and respondent, discussion with cognizant chairperson, director, or dean, if appropriate, and counseling with the individuals involved.
4. Informal resolution may be attained through mutual consent of the complainant and respondent or through other informal remedial measures, including disciplinary sanctions.
5. If the complainant is not satisfied with the resolution achieved following this informal process, a formal complaint may be filed pursuant to Section C, below.
6. The Ombudsperson or the Center for Human Rights may initiate a formal investigation which will be conducted by the Center for Human Rights, if the informal complaint procedure is deemed not appropriate to the circumstances of the complaint. The Center for Human Rights will proceed with the formal complaint, with or without the participation of the original complainant.

All formal complaints must be filed in writing with the Center for Human Rights. The Center for Human Rights will discuss the nature of the complaint with the complainant, outline the principles of due process, and collect preliminary data. The Center for Human Rights will also advise the complainant of his or her right to take complaints outside the University, e.g., to the Human Rights Commission. Thereafter, the process will proceed as follows:

1. The complainant will receive written acknowledgment of the filing of the formal complaint within five days.
2. The allegation will then be investigated and findings of fact, determination, and recommended remedies will be prepared by the Center for Human Rights.
3. If the investigation produces reasonable cause to believe that a violation of the University's Discrimination Policy has occurred, these findings and recommended action will be forwarded for disposition to the Provost if the respondent is a faculty or exempt staff member; to the Vice Provost for Human Relations and Resources if the respondent is a classified staff member; or to the Vice Provost for Student Affairs if the respondent is a student.
4. If the Provost, Vice Provost for Human Relations and Resources, or Vice Provost for Student Affairs concurs with the findings and determination, he or she will initiate appropriate disciplinary action against the respondent, taking into consideration the action recommended by the Center for Human Rights.
5. Disciplinary action involving dismissal of a faculty member shall be in accord with the Disciplinary Regulations contained in the Faculty Manual. The process completed by the Center for Human Rights shall constitute the "informal procedures" referred to in the Faculty Manual. The matter shall proceed to a formal hearing conducted pursuant to the Higher Education Administrative Procedures Act, Chapter 28B.19 RCW, without further informal procedures, if the faculty member requests such a hearing within ten days of being notified by the Provost of the action to be taken.
6. If disciplinary action taken against a classified staff employee is appealable under the State Personnel Board statutes and regulations, then the respondent may pursue an appeal to the State Personnel Board.
7. Both the complainant and the respondent have the right to be accompanied by a friend or advocate throughout the entire process. In addition, each is entitled to the advice of legal counsel at his/her own cost at all stages in the proceedings.

Special Provisions for Informal and Formal Investigation

and Resolution of Sexual Harassment Complaints

Sexual harassment is one form of discrimination. As with all cases of discrimination, the complainant will have a choice between informal and formal complaint procedures. However, to accommodate the special needs and unique circumstances surrounding complaints of sexual harassment, the University has added specialized resources and operating guidelines to both the informal and formal procedures.

Complainants will be advised that, under case law and University policy, complaints of sexual harassment must be acted upon by the University. While every effort to maintain confidentiality will be made, the University through the Ombudsperson's or Center for Human Rights offices, will pursue investigation of a complaint, if warranted, without the continued involvement of the original complainant. As in all cases, the University will observe the principles of due process for all parties concerned and protect complainants and witnesses from retaliation.

The Center for Human Rights or the two Special Ombudspersons for Sexual Harassment who report to the University Ombudsperson may informally resolve a sexual harassment complaint.

Use of the Formal Complaint Investigation Process for sexual harassment cases will involve the Center for Human Rights working with at least one of the Special Ombudspersons for Sexual Harassment. Their investigation and disposition of Formal Complaints alleging sexual harassment will follow the procedures outlined above in Section C.

Special Provisions for Sexual Harassment Complaint Documentation and Reporting

Institutional liability is potentially created whenever any supervisor is notified or an administrator is aware of an allegation of sexual harassment. An effective process for reporting instances of sexual harassment is thus critical for implementation of this policy. All sexual harassment complaint allegations received and handled informally by deans, directors, chairs, supervisors, or their designees, and the Ombudsperson's Office shall be reported immediately on a confidential basis to the Center for Human Rights.

All reports of valid complaint allegations and records of informal complaint resolution will be held confidentially in the Center for Human Rights. This confidential information will be used for statistical reporting required by state and federal law and for monitoring patterns of sexual harassment allegations. Where any pattern is detected, the Center for Human Rights will consult with the Provost's Office to determine if a fact-finding investigation should be initiated by the University so as to ensure the effective implementation and enforcement of its Discrimination/Sexual Harassment Policy. Records of allegations of sexual harassment found, upon informal investigation, to be without merit will not be retained in either the Center for Human Rights or the Ombudsperson's Office.

No individual filing a complaint or otherwise participating in a complaint procedure will be subject to reprimand or retaliatory action. Retaliatory action of any kind taken against an employee or student as a result of that person's seeking redress under the applicable procedures dealing with sexual harassment is prohibited. Such action shall be regarded as a separate and distinct cause for complaint.

If it is determined that a sexual harassment allegation is malicious or frivolous in nature, the complainant may be subject to disciplinary action.

Administrators, deans, directors, chairs, and supervisors are responsible for informing all employees and students about the prohibition of discrimination. The Center for Human Rights is prepared to assist in this process by coordinating education and training including regular publication of the Discrimination and Sexual Harassment Policy.

Complainant: Any employee, student or person who receives WSU services, who files a complaint against a department or employee of Washington State University.

Complaint: An allegation of violation of University policy, and/or state and federal regulations, which prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, sexual orientation, or status as a Vietnam-era or disabled veteran in employment or education opportunity.

Determination: The conclusion drawn from a thorough analysis of a formal fact-finding investigation, conducted by the Center for Human Rights as to whether there is reasonable cause or no reasonable cause to believe that discrimination or sexual harassment has occurred.

Disciplinary Sanctions: Actions resulting when faculty, staff, or students violate the University's policy prohibitions against discrimination and sexual harassment and where reasonable cause for discipline has been determined. These include warning, censure, suspension, dismissal, or, in emergency situations, summary suspension.

Discrimination: To make employment or education decisions based on prejudice or preference which is based on race, sex, religion, color, creed, national or ethnic origin; physical, sensory, or mental disability; marital status, sexual orientation, and status as a Vietnam-era or disabled veteran.

Formal Complaint Investigation Process: Handling of complaints filed in writing with the Center for Human Rights and investigated in accordance with the structured procedures set forth in Section IV (C).

Informal Complaint Investigation Process: The process addressing complaints submitted either orally or in writing to the Ombudsperson's Office or the Center for Human Rights on a confidential basis unless otherwise agreed; representatives of these offices will act as facilitators to mediate and resolve complaints informally through mutual consent, without formal fact-finding investigations.

Ombudsperson: A tenured faculty member appointed to safeguard the individual rights of students, faculty, and staff by providing information concerning University policies and procedures, receiving and investigating complaints informally on a confidential basis, mediating conflict resolution, and making recommendations for the expeditious and impartial redress of a wide range of University-related grievances; the Ombudsperson's Office operates independently from the University administrative structure, maintains separate and confidential office records, and possesses power to recommend but not to enforce University decisions.

Respondent: A person alleged to be responsible for the violation charged in the complaint. The term may be used to designate persons with direct responsibility for a particular action, or persons with supervisory responsibility for the University areas covered in the complaint.

Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or education, (2) submission to or rejection of such conduct by an individual is used as the basis for employment or education decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work or educational performance or creating an intimidating, hostile, or offensive environment.

Special Ombudsperson for Sexual Harassment: Two permanent University employees, at least one of whom must be a female, charged with responsibility for implementing the Informal Complaint Investigation Process for informal complaints of sexual harassment. The special Ombudspersons are appointed by the Provost to serve staggered three-year terms; while they often work with the Center for Human Rights, they report to, and maintain files in, the University Ombudsperson's Office.